Case DD Document 292 Catherine Weiss* (NJ 018582006; NY 2361491) LOWENSTEIN SANDLER, LLP One Lowenstein Drive Roseland, New Jersey 07068 (973) 597-2500 cweiss@lowenstein.com Attorney for Legal Service Providers for Children, Objectors dmittedpro hac vice Filed 11/02/18 PagelD.4609 Page 1 of 27 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Ms. L, et al., Plaintiffs, vs. US. Immigration and Customs Enforcement, et al., Defendants. M.M.M., on behalf of his minor child, .M.A., et al., Plaintiffs, vs. Jefferson Beauregard Sessions, Attorney General of the United States, et al., Defendants. Case No. Honorable Dana M. Sabraw Case No. Honorable Dana M. Sabraw CLASS ACTION Final Hearing on Approval of Settlement November 15, 2018 IxCase Document 292 Filed 11/02/18 Page20f27 OBJECTIONS TO PROPOSED SETTLEMENT ON BEHALF OF CHILDREN IN THE CLASS BY LEGAL SERVICE PROVIDERS THAT DIRECTLY REPRESENT THESE CHILDREN, INCLUDING CATHOLIC CHARITIES COMMUNITY SERVICES OF THE ARCHDIOCESE OF NEW YORK, THE DOOR, INC., AND SAFE PASSAGE PROJECT Case Document292 Filed 11/02/18 PageID.4611 Page30f27 The legal service providers (LSPs) ?ling these objections collectively represent or have represented more than 170 children who were separated from their parents at the border before June 26, 2018. The lawyers employed by the LSPs have worked with these children over several months, representing both those who are or were in federal custody and those who have been released into the community. The lawyers? reactions to the Proposed Settlement are informed by their extensive experience helping their young clients endure their separation ?om their parents, navigate the conditions they face or faced in federal custody, assess their Options for securing immigration relief, and prepare for the process of reuni?cation with their parents. The LSPs hope to use this opportunity to give voice to the independent concerns of the children who will be bound by the Pr0posed Settlement and to advocate for their protection from the consequences of decisions that were made without their participation. The LSPs emphasize that their child-clients are often capable of forming and expressing independent judgments about how to manage their immigration cases, and that child- respondents in immigration proceedings have rights of their own. The LSPs make three objections to the Proposed Settlement. First, the Settlement is silent as to whether children have a right to opt out of reuni?cation and what immigration procedures will apply if they do. The decision whether to unwind reuni?cation is inevitably fraught. On the one hand, a child may have pressing reasons to re-separate and a due process right to do so. For example, such a decision may be motivated by a child?s desire to avoid prolonged detention, as is the child?s right under the settlement in [ores v. Sessions. Or a child might re- separate for the purpose of taking his or her best shot at remaining safely in the United States by pursuing independent immigration relief. On the other hand, the 1 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4612 Page4of27 decision will involve sacri?cing family unity, an interest that is vital to children and also constitutionally protected. With the guidance of their parents and the advice of their lawyers, if any, the children are entitled to make so important a decision with a full understanding of its consequences. Given the high stakes, the Settlement should make explicit that a child who re-separates will be treated as unaccompanied and subject to proceedings under Section 240 of the Immigration and Nationality Act The mechanism for which the LSPs advocate is not a general opt-out from the terms of the Proposed Settlement. On the contrary, the LSPs acknowledge that the overwhelming majority of children reuni?ed with Ms. class-member parents in the United States will decide to remain with their parents and follow the procedures outlined in the Settlement. A few, however, will choose re-separation . All have the right to confer with their parents and their lawyers so as to make voluntary and informed decisions, based on a clear understanding of what re- separation will mean for their immigration proceedings. Second, while the Proposed Settlement makes a laudable effort to take into account the varying circumstances of class-member children, the Settlement overlooks a small group of children who face imminent, severe, and unfair immigration consequences because of the Government?s decision to separate them ??om their parents. These are children who accepted orders for voluntary departure before being reuni?ed with their parents in the United States. Each of these children is now exposed to penalties, including reentry bars, as well as possible fines and prolonged ineligibility for lawful permanent residency. The LSPs ask the Court to urge the parties to incorporate into the settlement an appropriate solution for these children. 2 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4613 Page50f27 Third, the LSPs seek clari?cation of certain ambiguous provisions in the Proposed Settlement. They suggest alternative language to ensure that the children subject to the Settlement?s terms fully understand the agreement being entered on their behalf. The LSPs ask the Court to urge the parties to consider amending and supplementing the Proposed Settlement as necessary to ensure that the rights of the children are protected. ARGUMENT I. The LSPs Object to the Proposed Settlement Insofar As It Fails To Make Clear That Class Members Who Were Reunified with Parents in the United States May Opt out of Reuni?cation and Regain Their Status As Unaccompanied Children. As this Court recognized in granting the preliminary injunction in Ms. v. ICE, immigrants have due process rights even when they enter the country illegally. 310 F. Supp. 3d 1133, 1143 (SD. Cal. 2018) (holding that separated parents, including those who had entered the United States between border checkpoints, had a likelihood of success on their due process claim to reuni?cation with their children). Although the sc0pe of protection may differ depending on the immigrant?s legal status and ties to the United States, due process entitles all to ?notice and an opportunity to be heard, which are the constitutional minimum.? F.L.B. v. 180 F. Supp. 3d 811, 819 (W.D. Wash. 2016). Due process protections extend to children as well as adults in removal proceedings. {ores- Chavez v. Ashcro?, 362 F.3d 1150, 1160 (9th Cir. 2004) minors in deportation proceedings are entitled to the ?fth amendment guaranty of due process?) (internal citations and quotations omitted). 3 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4614 Page60f27 The children subject to the Proposed Settlement have at least two distinct due process rights at stake. First, those children who were reuni?ed in detention have a right to opt out of reuni?cation if, in consultation with their parents and lawyers, they decide that they cannot tolerate continued con?nement. Second, the children have a right to assess and respond to the impact of reuni?cation on their prospects for obtaining immigration relief, with the assistance of both their parents and their lawyers. The rights of these children to make voluntary and informed decisions on these issues are independent of the rights of their parents, at least for those children who have the capacity to formulate and express their own views. In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court set out the test for adjudicating claims of procedural due process. Courts must consider three factors: First, the private interest that will be affected by the of?cial action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and ?nally, the Government?s interest, including the function involved and the ?scal and administrative burdens that the additional or substitute procedural requirement would entail. 1d. at 335. Here, the children have strong interests in avoiding detention and in pursuing legal status in the United States, independently of their parents if they so choose. Infra Points I.B.-C. The means to accommodate these interests are ready at hand through appropriate amendments to the settlement, and the administrative burdens will be light because so few children will be willing to re-separate from their parents. 4 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4615 Page7of27 A. Children Have an Independent Right, Within Their Individual Capacities, to Express and Pursue Their Interests. Children who have the capacity to express independent wishes are entitled to assert their own due process rights, even when their wishes diverge from their parents?. The federal regulation governing the release and detention of immigrant minors acknowledges as much: it explicitly provides for notice to parents and a right for them to be heard when a child?s wishes regarding either release from detention or ultimate immigration relief differ from a parent?s, but the regulation does not make the parent?s wishes determinative. 8 C.F.R. 236.3(f) (1997) (?If a juvenile seeks release ?'om detention, voluntary departure, parole, or any form of relief from removal, where it appears that the grant of such relief may effectively terminate some interest inherent in the parent-child relationship and/or the juvenile?s rights and interests are adverse with those of the parent, and the parent is presently residing in the United States, the parent shall be given notice of the juvenile?s application for relief, and shall be afforded an opportunity to present his or her views and assert his or her interest to the district director, Director of the Of?ce of Juvenile Affairs or immigration judge before a determination is made as to the merits of the request for relief?) The relevant case law also protects children?s independent interests in immigration proceedings. In F.L.B. v. the district court rejected the Government?s argument that children have no claim to appointed counsel in removal proceedings when the children?s parent is also in removal proceedings and ?presumably represents their interests.? 180 F. Supp. 3d at 821. On the contrary, the court concluded that the extent their mother?s interests are not aligned with their interests,? the children had a right to assert their claim that ?someone 5 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4616 Page8of27 other than the mother should be appointed to represent [them].? Id. at 823. Likewise, in Johns v. Department of Justice, the Fifth Circuit ordered the appointment of a guardian ad litem to represent the interests of a nearly ?ve-year- old girl in removal proceedings, based on ?ndings that neither the couple who had raised the child nor her biological mother had interests squarely aligned with hers. 624 F.2d 522, 523-24 (5th Cir. 1980). And in Polovchak v. Meese, the Seventh Circuit explicitly af?rmed the independent rights of a seventeen-year?old boy to seek asylum and avoid removal to the then-Soviet Union, despite the objections of his parents. 774 F.2d 731, 73 7-38 (7th Cir. 1985). The court instructed that his departure should be conditioned on voluntariness, thereby preserving ?family autonomy? to the greatest extent possible ?while still protecting [the boy?s] individual rights.? Id. at 738. Thus, courts have long recognized that children have independent rights in immigration proceedings, rights that ?grow more compelling with age.? Id. at 737.I The ethical obligations of lawyers for children align with these holdings, requiring lawyers to ascertain and advance the wishes of their child-clients. See 8 C.F.R. 1003.102(p) (2008) (lawyers representing clients in immigration proceedings must ?abide by a client?s decisions concerning the objectives of representation? and ?consult with the client as to the means by which they are to be pursued?); ABA Comm?n on Immigration, Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States, Part (August 2004) (whenever possible, the lawyer should advocate for the child?s ?expressed wishes?), ABA Model Rules of Professional Conduct, Rule l.14(a) (Aug. 16, 2018) (in representing a client with diminished capacity, including a minor, the lawyer ?shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client?), 6 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4617 Page90f27 Indeed, this Court recognized the independent rights of children when it temporarily enjoined the impending removal of family units based on removal orders that ran against parents alone. M.M.M v. Sessions, No. 3:18-cv-01832- DMS-MDD at 15 (SD. Cal. Aug. 16, 2018), ECF No. 55. Noting that children have ?separate rights to pursue asylum,? id. at 10, the Court prevented the Government from removing families before the children had been referred for their own credible fear interviews in accordance with the law, id. at 9 (citing 8 U.S.C. The Settlement should continue in this vein to respect the individual rights of children in the class, especially those older children who are most able to form and express independent views. The LSPs understand that the Proposed Settlement does not address the circumstances under which children may re-separate, and we do not ask for resolution of that issue here. All we seek is clarity that those children who are subject to the settlement and who are considering re-separation will be given time to make voluntary and informed decisions and that those who re-separate will be treated the same as other unaccompanied children and placed back into plenary proceedings under Section 240 of the INA. The LSPs anticipate that few children, having been reuni?ed with their parents, would choose this difficult course, but some will. Declaration of Anthony Enriquez 13, 14, 16 (Nov. 2, 2018); Declaration of Kaavya Viswanathan 18.b., 19 (Oct. 31, 2018); Declaration of Alexandra L. Rizio 111115-16 (Nov. 1, 2018). 7 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4618 Page 10 of27 B. Due Process Entitles Children Who Were Reuni?ed in Detention to Opt out of Reuni?cation If They Decide They Cannot Tolerate Further Confinement. The children have a due process right to object to prolonged detention. The Supreme Court has long held that ?[t]reedom from imprisonment - from government custody, detention, and other forms of physical restraint lies at the heart of the liberty that [the Due Process] Clause protects.? Zadvydas v. Davis, 533 US. 678, 690 (2001) (to avoid constitutional in?rmity, construing provision of the Immigration and Nationality Act to contain an implicit six-month limit on detention of certain immigrants who have been ordered removed). Due process protections apply to immigration as well as criminal detention. Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (upholding preliminary injunction requiring new bond hearings for certain immigrants). And children, although they are ?always in some form of custody, retain a strong interest in being free from unnecessary government interference with their liberty.? Saravia v. Sessions, 280 F. Supp. 3d 1168, 1195 (ND. Cal. 2017) (juvenile immigrants who were rearrested and detained after having been released to sponsors by the Of?ce of Refugee Resettlement (ORR) had due process right to a prompt hearing to challenge their arrest and detention). The settlement in lores v. Reno, No. at 1 1 1 (CD. Cal. Jan. 17, 1997), ECF No. 101, Ex. 1 [hereinafter Flores Settlement], is predicated on the stipulation that minors in the custody of immigration of?cials are entitled to be detained ?in the least restrictive setting appropriate to the minor?s age and special needs.? The bene?ts of the settlement run to a class de?ned as ?[a]ll minors who are detained in the legal custody of the INS [now id. 1 10, and it ?unambiguously? includes both ?accompanied and unaccompanied minors,? 8 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4619 Page 11 on7 [ores v. 828 F.3d 898, 901 (9th Cir. 2016). Thus, children now detained with their parents following reuni?cation are members of the Flores class. The Flores Settlement explicitly gives ?[a]ny minor who disagrees with the determination to place that minor in a particular type of facility? the right ?to challenge that placement determination? in any federal district court with appropriate jurisdiction and venue. Flores Settlement 1] 24.B. At the time of the children?s reuni?cation, their lawyers generally had no notice of whether they were headed into detention or for how long. Enriquez Decl. 18-23; Rizio Decl.1[1l 20-23; Viswanathan Decl. 11 18.2 Therefore, the lawyers could not advise their clients about or advocate for any child?s right to opt out of reunification in detention. The parents also had insuf?cient information about the possibility and timing of the family?s release to assess the potential effects of detention on their children and to advise them accordingly. On information and belief, many children in the class are now in detention with their parents. Prolonged detention threatens harm to the children, and this harm accumulates. As this Court found, separation from their parents risked, and indeed caused, profound trauma for many children in the class. Ms. L, 310 2 The exception to this rule was at the Legal Aid Society of New York (LASNY), which sued to obtain notice of where a child was to be reuni?ed. N.T.C. v. ICE, No. (S.D.N.Y. July 17, 2018), ECF No. 9 (temporarily enjoining removal of separated children represented by LASNY without 48 hours? notice to children and their lawyers). Even the LASNY lawyers, however, were given incomplete and uncertain information about how long their child-clients might remain in detention. N.T.C. v. ICE, No. Order re: Pls.? Notice of Defs.? Non-compliance at 2-3 (S.D. Cal. Aug. 16, 2018), ECF No. 51. 9 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Ix.) Case Document 292 Filed 11/02/18 PageID.4620 Page 12 on7 F. Supp. 3d at 1146-47 (citing Children?s Defense Fund and Professor Martin Guggenheim on the sequelae for children of forced family separation). This trauma was compounded by months in federal custody without their parents. Enriquez Decl. 8; Viswanathan Decl. 1] 6; Rizio Decl. 1] 9. For some children, additional months of detention, even in the company of their parents, could deepen the trauma. See Saravia, 280 F. Supp. 3d at 1200 longer children remain in con?nement, the more likely they are to experience lasting negative mental health repercussions?); Enriquez Decl. 1f 13 (describing children who had an especially dif?cult time in detention). Under previous orders of this Court, the parents are entitled either (1) to waive their children?s rights under the [ores settlement to be released or placed in the least restrictive setting, or (2) to waive their own rights to reuni?cation, allowing the child to be released. Ms. v. ICE, No. Order Granting Joint Motion Regarding of the Court?s Preliminary Injunction at 1-2 (S.D. Cal. Aug. 16, 2018), ECF No. 192. If the parent allows the child to be released, ?the government could transfer the child to HHS custody for placement and to be otherwise treated as an unaccompanied child.? Id. at 2. The Proposed Settlement makes reference to this earlier order, Proposed Settlement 11 7, but it is unclear whether the Settlement contemplates that parents will continue to be allowed to waive reuni?cation and that the Government will then treat released children as unaccompanied. Moreover, this Court?s earlier order, issued on behalf of only the Ms. parent class, says nothing about whether the children themselves may assert their Flores rights to be released, even if that must be without their parents. Likewise, orders issued by the lores court have not determined whether reuni?ed children 10 l8cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4621 Page 13 of27 retain their rights to object to continued detention. When the Government asked the court enforcing the Flores Settlement to allow the inde?nite detention of families reuni?ed pursuant to the Ms. injunction, the Flores court observed that ?detained parents who are entitled to reuni?cation under the Ms. Order may ?af?rmatively, knowingly, and voluntarily decline[] to be reunited? with their children, and all parties admit that these parents may also af?rmatively waive their children?s rights to prompt release and placement in state-licensed facilities.? Flores v. Sessions, No. at 6 (CD. Cal. July 9, 2018), ECF No. 455 (citations omitted). Neither this Court nor the [ores court was then presented, however, with separate claims from the children asserting their rights under the Flores Settlement, including their right to disagree with and challenge their placements. Iores Settlement 1] 24.B. No doubt parents have a right to waive their child?s right to avoid prolonged detention, so long as the parent and child both opt for reuni?cation over freedom for the child. But neither this Court?s earlier decisions nor the decisions in the [ores litigation strip a child of the right to object to continued detention even if the parent has opted for reuni?cation. Nor do these earlier decisions determine what should happen if the parent and child agree, or come to agree after experiencing inde?nite detention together, that the child should seek release. See Enriquez Decl. 1} 24 (describing child who has grown ?desperate in detention? following reuni?cation). The LSPs respect?Jlly ask the Court to urge the parties to make clear that children who re~separate from their parents for the purpose of seeking relief from ongoing con?nement are entitled to be treated as unaccompanied and placed in Section 240 proceedings. 11 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PagelD.4622 Page 14 of27 C. Due Process Entitles the Children to Make Voluntary and Informed Decisions About Whether to Pursue Independent Immigration Relief Even at the Price of Re-Separation. In a range of contexts, the federal courts have held that due process entitles children to make voluntary and informed decisions about their immigration proceedings, and to receive assistance in doing so. In Perez-Funez v. Distict Director, I.N.S., 619 F. Supp. 656, 664-66 (CD. Cal. 1985), for example, the court prohibited the Government from presenting immigrant children with voluntary departure forms, through which they would concede removability and agree to be returned to their home countries, unless and until the children had had an opportunity to confer with a lawyer, parent, or other adult relative or friend. See also 8 C.F.R. 236.3(g) (1997) (codifying this process). In Flores-Chavez v. Ashcroft, 362 F.3d at 1157, the Ninth Circuit required the Government to serve notice of upcoming immigration hearings on both the juvenile and the adult responsible for his or her care to ensure that children would have adult assistance in such hearings.3 And in Jie Lin v. Ashcroft, 377 F.3d 1014, 1034 (9th Cir. 2004), the Ninth Circuit allowed an immigrant child who had been denied effective assistance of counsel to reopen his case, holding that ?[a]bsent a minor?s knowing, intelligent, and voluntary waiver of the right to counsel, the IJ [immigration judge] may have to take an af?rmative role in securing representation by competent 3 This decision remains binding in the Ninth Circuit even though the Board of Immigration Appeals has held that, outside the Ninth Circuit, notice of immigration proceedings must be served on the responsible adult as well as the minor only when the minor is under fourteen years old. In re Chajon-Mejt?a, No. XX3 083, 2018 WL 3045840, *1 (B.I.A. 2018). Thus, the B.I.A. treats minors fourteen and older as competent, independent immigration respondents. See supra Point LA. 12 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PagelD.4623 Page 15 of27 counsel.? Accord J.E.F.M. v. 837 F.3d 1026, 1037 (9th Cir. 2016). These cases stand for the proposition that children facing removal have a right to make informed decisions with the assistance of trusted adults. Yet the children subject to the Proposed Settlement were reuni?ed with their parents without receiving any advice ?om either their parents or their lawyers about how reuni?cation would affect their ability to remain legally in the United States. The lawyers who represented the children while they were separated and in federal custody had little if any notice of the children?s imminent reuni?cation, and no opportunity to review with their child-clients the potential legal consequences of the decision to reunify. Enriquez Dec]. 111] 18-23; Rizio Decl. 20-23; Viswanathan Decl. 11 19. Nor could these lawyers have understood the consequences during July, August, and early September when most of the children were reuni?ed. See Ms. v. ICE, No. Joint Status Report at 1 (SD. Cal. Sept. 20, 2018), ECF No. 238 (representing that, by September 20, 2,251 children had been discharged from OR custody). The Proposed Settlement, establishing the course the children?s cases will follow, was not ?led until September 12. 1d, Proposed Settlement, Sept. 12, 2018, ECF No. 220. The parents lacking both legal expertise and a means to engage in regular and reliable communication with their children were in an even worse position to advise their children on the immigration rami?cations of reuni?cation. These rami?cations are signi?cant. A separated child who chose not to reunify with a parent, or whose parent declined reuni?cation, retained his or her status as an unaccompanied child, subject to removal proceedings under Section 13 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4624 Page 16 of27 240 of the INA.4 Such a child is free to assert any and all defenses to removal in plenary proceedings. For example, one ?fteen-year?old boy from Honduras, represented by Catholic Charities Community Services of the Archdiocese of New York, chose not to reunify with his father because ?his father drank heavily, regularly beat his mother, siblings and him, and taunted him with cruel remarks regarding his gender identity.? Enriquez Decl. 1] 14. This child was screened as potentially eligible for Special Immigrant Juvenile Status (SIJ S). SIJS is available to children who have been abused, neglected, abandoned, or similarly mistreated by one or both parents and whose best interests militate against return to their home country. 8 U.S.C. 1101(a)(27)(J). SIJS does not depend on a fear of persecution or torture -- the issues in a credible fear determination but rather on competent ?ndings by a state juvenile court that at least one of the child?s parents is unfit and that the child?s best interests would be undermined by repatriation. A significant number of the separated children had family histories that would qualify them for this form of relief. Enriquez Decl. 1] 14 (reporting that 20% of separated child clients screened as eligible for SIJ Viswanathan Decl. 1] 10 (detailing instances of parental abuse and neglect); Rizio Dec]. 1] 18 (recounting case of 4 As this Court?s order preliminarily certifying the settlement classes recognizes, such children are not members of the M.M.M.-agreed class if they are never reuni?ed with a Ms. class-member parent. Ms. v. ICE, No. 3:18-cv-00428- Order at 3 (SD. Cal. Oct. 9, 2018), ECF No. 256 (de?ning MM.M. class to include children who ?have been or will be reuni?ed with? a Ms. class- member parent). Children who may yet be reuni?ed with a parent (presumably meaning a Ms. class-member parent, see in?a Point IV.C.), remain in Section 240 proceedings as Unaccompanied Alien Children ?unless and until? such reuni?cation. Proposed Settlement 1] La. 14 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PagelD.4625 Page 17 of27 separated child about whom statejuvenile court has already made ?ndings of neglect and abandonment). Under the Proposed Settlement, however, a reuni?ed child will not have the opportunity to pursue SIJ unless the child or the parent ?rst passes a credible fear interview. Proposed Settlement 1.a.-d.5 Under the Settlement, a child will typically go into expedited removal proceedings alongside the parent, and the only way for them to proceed to a ?ll] defense to removal in immigration court is ?rst to obtain a positive credible fear determination. 8 U.S.C. Yet some children have strong claims for relief that do not depend on a credible fear of persecution or torture. Enriquez Decl. 1] 14; Viswanathan Decl. 1] 18.c. (child neglected by mother may be eligible for 31] but unable to assert a credible fear of return to his country). Neither the children nor their lawyers nor their parents understood or could have known at the time of reuni?cation that the subsequent Proposed Settlement would narrow a child?s prospects for relief in this way. Every reuni?ed child who has realistic hopes of qualifying for law?Jl status on any ground unrelated to a fear of torture or persecution is in the same position. Now that the children, their parents, and their lawyers understand the deal that was struck in the Proposed Settlement, they should have an Opportunity to confer and reach an informed decision about whether to remain reuni?ed or to allow the child to be placed elsewhere. Again, the Settlement should make explicit that a re-separated child regains unaccompanied status, along with the opportunity to pose any and all available 5 Children will have credible fear interviews even when parents are subject to reinstated orders of removal and must therefore undergo a more challenging ?reasonable fear interview.? Proposed Settlement 15 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PagelD.4626 Page 18 of27 defenses to removal. A sentence might be added at the end of Paragraph 1.a. as follows: agreed class members who are reuni?ed with their parent(s) as of the effective date of this agreement, but who re-separate from their parent(s) before USCIS makes a ?nal credible or reasonable fear determination or re-determination for either the parent or the child in accordance with the procedures described below, will be afforded existing procedures for unaccompanied alien children pursuant to governing statutes and regulations, including but not limited to Section 240 removal proceedings. II. The LSPs Object to the Proposed Settlement Insofar As It Fails To Protect Class Members Who Were Reuni?ed with Parents in the United States After the Children Had Accepted Orders for Voluntary Departure. As this Court is aware, after removing children from their parents, the Government placed them in federal custody, designated them as unaccompanied children, and generally initiated Section 240 removal proceedings against them, independent of their parents. As this Court is also aware, these separations began in late 2017 and early 2018, months before this Court entered the preliminary injunction in Ms. on June 26, 2018. Even after that injunction was entered, lawyers for ICE continued to represent to lawyers for the children that their parents had been or would be deported imminently. Enriquez Dec]. 1] 27. For these reasons, many of the children accepted voluntary departure orders in the belief that this would be the fastest or only way to reunify with their parents. A voluntary departure order serves as an alternative to a removal order and allows an immigrant who concedes removability to agree to repatriate without incurring a bar to reentry. See generally 8 C.F.R. 1240.26 (2003). Thejudge l6 180v428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4627 Page 19 on7 sets a departure deadline on a speci?ed date; for those, like the children here, who accept voluntary departure before the conclusion of removal proceedings, the departure date must fall within 120 days of the entry of the order. 8 C.F.R. (2003). Unaccompanied children who agree to voluntary departure are repatriated at no cost to themselves; the Government arranges and pays for their travel. 8 U.S.C. 1232(a)(5)(D)(ii). If the child overstays a voluntary departure deadline, serious consequences ensue. When an immigrationjudge enters an order for voluntary departure, he or she concurrently enters ?an alternate order of removal.? 8 C.F.R. 1240.26(d) (2003). If the child does not leave the country on time: The alternate removal order automatically takes effect, barring the child from reentry, typically for ?ve or ten years, depending on the circumstances of the removal. 8 U.S.C. 1182(a)(9)(A). The child becomes ineligible for various forms of immigration relief, including adjustment of status to lawful permanent residency, for a period often years. 8 U.S.C. 1229c(d); 8 C.F.R. 1240.26(a) (2003). A ?ne in the amount of (typically $3000) is levied against the child. 8 U.S.C. 1229c(d); 8 C.F.R. 1240.260) (2008). The ?rst of these consequences applies even if the child moves to reopen or reconsider during the period allowed for voluntary departure. In that case, ?the grant of voluntary departure shall be terminated automatically, and the alternate order of removal will take effect immediately,? bringing with it a ?ve- or ten-year bar on reentry. 8 C.F.R. (2003); 8 U.S.C. 1182(a)(9)(A). The other penalties the bar on adjustment of status and the ?ne - do not apply if 17 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4628 Page 20 on7 the child moves to reopen or reconsider within the departure period, but do apply if the child so moves after this period has expired. 8 C.F.R. l240.26(e) (2003). The vast majority of the children who accepted voluntary departure orders have left the United States to be reuni?ed with their parents in their home countries. Enriquez Decl. 1] 28; Rizio Decl.1[ 14. A small number, however, were reuni?ed with their parents in the United States and are presumably now with them either in detention or in the community. Enriquez Decl.1]1[ 29, 31. The LSPs ?ling this brief have identi?ed six children who accepted voluntary departure orders while they were separated from their parents in federal custody and who are now reuni?ed with their parents in this country. Enriquez Decl. 1] 31. For each of them, the clock is ticking. Their departure deadlines range ?om October 16, 2018, to November 14, 2018. Id. Most of these dates have already passed; all will pass before the Proposed Settlement is ?nally approved. Yet the children?s noncompliance with their voluntary departure orders has been entirely beyond their control. The children did not arrange for their reuni?cation with their parents in the United States. The children did not make the decision to seek to remain in the United States. The children are not responsible for arranging and paying for their repatriation; that responsibility lies with the Government, 8 U.S.C. 1232(a)(5)(D)(ii), and on information and belief, the Government has taken no steps toward this end. Moreover, compliance with the voluntary departure orders would deprive the children of the bene?ts of the Proposed Settlement. Under the Settlement, their parents are entitled to obtain review of any possible negative credible fear determinations; if the parents fail these reviews, the children are entitled to credible fear interviews, followed by judicial review as needed. Proposed Settlement 18 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PagelD.4629 Page 21 on7 2-6. Yet each of these steps will be futile for a child who has not complied with the terms of a voluntary departure order, as that child will already be subject to a ?nal removal order, a ten-year bar on eligibility to apply for lawful permanent residency, and a ?ne based on his or her failure to depart. 8 C.F.R. (2003), (2008). Because of the seriousness of these consequences, the LSPs ?ling these objections have made extraordinary efforts to locate the children they represented in obtaining orders for voluntary departure who were then reuni?ed with parents in the United States. The lawyers then sought the children?s permission to ?le motions to reopen, even though these motions would cause the alternate removal order and associated reentry bar to take effect. 8 C.F.R. (2003); 8 U.S.C. 1182(a)(9)(A). To date, the LSPs have ?led motions to reopen for their three clients. Enriquez Decl.1l 31. The lawyers for the other three children appear not to have ?led motions to reopen before the children?s departure deadlines. 1d. These children are now subject to ?nes and ten-year bars on adjustment to lawful permanent residency. 8 U.S.C. 1229c(d); 8 C.F.R. 1240.26(a) (2003), (2008). The LSPs respectfully ask the Court to urge the parties to reach an agreement to address the needs of these children. Under the Proposed Settlement, if a child received a ?nal removal order in Section 240 proceedings before reuni?cation, the Government agrees to work with class counsel to identify the child and to join a motion to reopen proceedings upon the child?s request. Proposed Settlement 1] La. This provision does not apply to children who accepted voluntary departure orders before reuni?cation because such orders are not ?nal removal orders, and the alternate ?nal removal orders were triggered, or will be 19 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4630 Page 22 of27 triggered, after reuni?cation. Still, this provision could serve as a model for an additional provision, which might read as follows: If an class member accepted a voluntary departure order before reuni?cation with his or her parent in the United States, DHS and HHS will work in good faith with counsel to identify such children within 15 days of approval of this agreement. If no motion to reopen has been ?led for such a child, DHS will ?le such a motion upon the child?s request, within 45 days of approval of this agreement, and will ask the immigration court to vacate the voluntary departure order and hold the child harmless from all consequences of failure to abide by that order. If a motion to reopen has been ?led for such a child, DHS will, within 15 days of approval of this agreement, join in that motion to reopen, and in the child?s requests to vacate the voluntary departure order and to hold the child harmless from all consequences of failing to abide by that order. Such a provision is necessary to protect the few children who were reuni?ed with their parents in the United States after accepting voluntary departure orders. The children accepted these orders believing that voluntary departure would allow them to reunify with parents whom they were told faced imminent removal. The orders of this Court forestalled some of those removals and led to reuni?cations in this country. The LSPs object to approval of the Proposed Settlement unless the parties cooperate to shield the children from penalties they should not face and to allow them to take advantage of the Settlement, if it is approved. The LSPs Seek Clari?cation of Certain Terms and Provisions in the Proposed Settlement. The LSPs seek to ensure that they understand how the Proposed Settlement will affect the rights of the children who are bound by it. In particular, the LSPs 20 180v428 DMS (MDD) Objection of Legal Service Providers for Children t?c 1--"-51 0? Ln LIJ Case Document 292 Filed 11/02/18 PageID.4631 Page 23 of27 propose clari?cations of the waiver contained in Paragraph 8; the scope of the ?rst sentence in Paragraph allowing some children to remain in Section 240 proceedings; and the meaning of the word ?parent? in the last sentence of Paragraph pertaining to future reuni?cations. A. The Sc0pe of the Waiver The LSPs ask the Court to urge the parties to add the following bolded language to the waiver provision in Paragraph 8 of the Proposed Settlement: Class members may either pursue the relief described in this agreement or elect prompt removal, but may not pursue any other immigration- or asylum-related inj unctive, declaratory, or equitable relief based on the allegations or claims made Dora complaints ?led in any court accruing as of the date this plan is approved by the Court, including statutory claims. Class members who are or will be in Section 240 proceedings in accordance with this agreement shall not, however, be limited with respect to the defenses they may assert. The bolded sentence avoids a reading of the waiver provision that would preclude any child in the class, who is in or will be in Section 240 proceedings in accordance with the terms of the Settlement, from posing whatever defenses would be lawfully available to any respondent in such proceedings. B. The Children Allowed to Remain in Section 240 Proceedings The LSPs ask the Court to urge the parties to revise Paragraph 1.a. of the Proposed Settlement as shown below: When a Ms. class members parent and that parent?s agreed class members whe child are not currently detained 1n DHS or HHS custody (-and?are?net emeatqu?l?S?eusted? and whe both have been issued Notices to Appear (NTAs), neither will net be 21 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PagelD.4632 Page 24 of27 removed by DHS prior to issuance of a ?nal removal order in their his or her resulting removal proceedings conducted under Section 240 of the Immigration and Nationality Act (INA). The LSPs found the original sentence ambiguous, in that it seemed potentially to allow any child who had been released to the community after receiving an NTA to remain in Section 240 proceedings. While this would be a welcome reading of the sentence, this reading seems to con?ict with Paragraph l.d. of the Proposed Settlement. Under Paragraph if a child had an NTA issued against him or her, but the parent did not, and both are released, the parent will be entitled to review of any negative credible fear determination, and if the parent fails, the child will be entitled to a credible fear determination. The revisions are meant to make clear that the quoted sentence in Paragraph 1.a. applies only to families where both the children and the parents have had NTAs issued against them and then been released. The revision should thus eliminate any confusion about the relationship between Paragraphs La. and l.d. C. The Meaning of the Word ?Parent? with Regard to Future Reuni?cations The LSPs ask the Court to urge the parties to further revise Paragraph 1.a. of the Proposed Settlement as shown below: M.M.M agreed class members who have not been reuni?ed with their Ms. class member parent(s) as of the effective date of this agreement will be afforded existing procedures for unaccompanied alien children pursuant to governing statutes and regulations, including but not limited to Section 240 removal proceedings, unless and until they are reuni?ed with a Ms. class member parent, in which case the procedures described below will apply. 22 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 Filed 11/02/18 PageID.4633 Page 25 on7 A signi?cant number of children who had been separated from Ms. class- member parents have reuni?ed, and others may yet reunify, with a parent who is not in the Ms. class but who resides in the United States. Such children are not in the class if they never reunify with a Ms. class-member parent. Order Preliminarily Certifying the Settlement Classes at 3, Oct. 9, 2018, ECF No. 256. A child awaiting reuni?cation with a Ms. class-member parent should remain in Section 240 proceedings unless and until such reuni?cation under the clari?ed language above. 23 18cv428 DMS (MDD) Objection of Legal Service Providers for Children Case Document 292 24 Settlement unless and until the parties agree: Filed 11/02/18 PagelD.4634 Page 26 of 27 CONCLUSION For these reasons, the LSPs ask the Court not to approve the Proposed 0 To make explicit that children who are considering re-separation will be given time to make voluntary and informed decisions and that those who re-separate will be treated the same as other unaccompanied children and placed back into plenary proceedings under Section 240 of the 0 To protect children who accepted voluntary departure orders ?om the consequences of failing to abide by those orders; and 0 To clarify certain ambiguous provisions. Respectfully su itted, Ir Wilda Catherine Weiss LOWENSTETN SANDLER, LLP One Lowenstein Drive Roseland, New Jersey 07068 (973) 597-2500 cweiss@lowenstein.com Attorney for Legal Service Providers for Children, Objectors *Admiz?tedpro hac vice 18cv428 DMS (MDD) Objection of Legal Service Providers for Children \DOO?de-bmmn?s Case Document 292 Filed 11/02/18 PageID.4635 Page 27 on7 CONCLUSION For these reasons, the LSPs ask the Court not to approve the Proposed Settlement unless and until the parties agree: I To make explicit that children who are considering re-separation will be given time to make voluntary and informed decisions and that those who re-separate will be treated the same as other unaccompanied children and placed back into plenary proceedings under Section 240 of the 0 To protect children who accepted voluntary departure orders from the consequences of failing to abide by those orders; and 0 To clarify certain ambiguous provisions. November 2, 2018 Respectfully su itted, :5 Catherine Weiss LOWENSTEIN SANDLER, LLP One Lowenstein Drive Roseland, New Jersey 07068 (973) 597-2500 cweiss@lowenstein.com Attorney for Legal Service Providers for Children, Objectors *Admitted pro hac vice 24 180v428 DMS (MDD) Objection of Legal Service Providers for Children pCase Document 292-1 Filed 11/02/18 PagelD.4636 Page10f11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Ms. L, et al., Case No. 3 . . Honorable Dana M. SabraW vs. US. Immigration and Customs Enforcement, et al., Defendants. M.M.M., on behalf of his minor child, Case No. J.M-A-, 6t 31-, Honorable Dana M. Sabraw Plaintiffs, CLASS ACTION Final Hearing on Approval of Jefferson Beauregard Sessions, Settlement Attorney General of the United States, November 15, 2018 et a1., Defendants. DECLARATION OF ANTHONY ENRIQUEZ, ESQ., DIRECTOR OF THE UNACCOMPANIED MINORS PROGRAM OF CATHOLIC CHARITIES COMMUNITY SERVICES OF THE ARCHDIOCESE OF NEW YORK Case Document 292-1 Filed 11/02/18 PagelD.4637 Page20f 11 1, Anthony Enriquez, Esq., pursuant to 28 U.S.C. 1746, declare that the following is true and correct: Background 1. My name is Anthony Enriquez. I am an attorney in good standing with the New York state bar, admitted in 2014. From 2015 to 2016, I was a judicial law clerk for a federal district court judge in the Southern District of New York. I have previously worked as an attorney for unaccompanied immigrant children and for other detained immigrants at multiple nonpro?t organizations in New York City. Over the course of my career, I have represented hundreds of immigrant clients and dozens of immigrant advocacy organizations before state and federal courts, including the federal Courts of Appeals and the Supreme Court. 2. I am currently the Director of the Unaccompanied Minors Program of Catholic Charities Community Services of the Archdiocese of New York I have served as Director since January 2018. The Unaccompanied Minors Program employs more than forty individuals, including attorneys, paralegals, social workers, and administrative staff. Our mission is to protect the rights of young immigrants to make informed decisions about their lives. Our mandate is to represent the expressed wishes of our clients before administrative bodies, courts, and other tribunals charged with making decisions regarding our clients? lives. 3. is a federally subcontracted legal service provider for unaccompanied minors in the custody of the Of?ce of Refugee Resettlement (ORR) in the New York City area. On an annual basis, provides Know Your Rights presentations, legal screenings, legal referrals, and direct representation in removal proceedings to thousands of unaccompanied minors detained by ORR in New York State. 1 180v428 DMS (MDD) Case Document 292-1 Filed 11/02/18 PageID.4638 Page30f 11 4. Beginning in the winter of 2017 and throughout the ?rst half of 201 8, staff observed a sharp increase in the number of unaccompanied minors detained in ORR custody in New York who reported having been separated from a parent at the southern border. Likewise, we increasingly received reports from Child welfare staff at ORR facilities that children too young to verbalize had been separated from a parent. 5. By the summer of 2018, had identi?ed 419 children separated from their parents and sent to OR facilities in New York. ?led appearances to represent 96 of these children. To ensure maximum access to an attorney for each separated child in New York, made referrals for the remaining 323 separated children to various nonpro?t legal service providers with extensive experience in representing unaccompanied minors. Of 96 clients in the cohort separated before this Court issued the preliminary injunction in Ms. V. on June 26, 2018, continues to represent eleven children who remain in shelters in New York. now also represents seventeen children who have been separated since the Ms. PI, but we do not address the concerns of these children here.) 6. At no point did the Government provide notice to attorneys representing separated children of the identity or location of the children?s parents. We repeatedly inquired with ICE attorneys in immigration court, who denied knowledge of the location of separated parents. The information we have learned regarding parents of separated children came not ?om the Government, but rather from interviews with the child, other family members if we are able to reach them, other attorneys who have represented a separated parent in criminal or immigration court, and even third parties such as journalists and doctors who have contacted us. 2 18cv428 DMS (MDD) wooqchAhmtor? Case Document 292-1 Filed 11/02/18 PagelD.4639 Page4of 11 The Range of Children and Their Wishes 7. child-clients who were separated before the P1 in Ms. ranged in age from two to seventeen years old. These children came from El Salvador, Guatemala, Honduras, Mexico, Ecuador, Romania, the United Kingdom, and Hungary. The majority of these children were monolingual Spanish speakers. Some of these children spoke other languages, including Romanian and several indigenous languages such as Akatek, Chuj, Ixil, K?iche?, Kaqchikel, Mam, Popti, Q?anjob?al, and Q?eqchi?. For children whose chief language was neither Spanish nor English, we used interpreters to communicate. 8. These children exhibited clear signs of trauma and emotional distress. Most children were unable to concentrate during legal screenings, the majority erupting into sobs, frequently wailing for their parents. When discussing his separated parent, one child clutched his heart and described to us how it hurt to breathe. Some children re?ised to speak about anything other than a separated parent. Some refused to speak at all. Others exhibited an instant and intense attachment to the lawyer they had just met, begging not to be separated after the conclusion of a legal appointment. 9. Many children were too young to communicate with us about legal matters or otherwise direct their legal representation. In these cases, in recognition of the child?s diminished capacity to direct her own representation, we ?rst sought direction from a parent or guardian, if available. But the Government did not provide us with contact information for the parents of our clients, despite repeated requests to ICE counsel in immigration court. 10. In some cases we were able to make contact with separated parents by seeking out their public defenders in criminal proceedings for illegal entry or reentry. In cases where we were unable to make contact with a separated parent, 3 18cv428 DMS (MDD) Case Document 292-1 Filed 11/02/18 Page50f 11 we sought out the non?separated parent, either residing in the child?s country of origin or in the United States. 11. In cases where we were unable to make contact with a parent of a child too young to direct us, we looked to American Bar Association guidance on the ethical representation of children with diminished capacity. That guidance instructed us to pursue family reuni?cation and release ?om detention. 12. For children old enough to communicate with us about their immigration cases, we accepted direction to pursue a variety of wishes. These children were able to understand that they had been separated from their parent by the Government and that they had the right to pursue an independent immigration case as an unaccompanied minor. Most of these children wished to reunify with their separated parent, no matter the place or circumstances of the reuni?cation. 13. Yet some children were adamant that they did not wish to reunify if it meant they would be detained inde?nitely. A thirteen-year?old child from El Salvador expressed great anxiety over the possibility of reuni?cation in detention. He had a family member in the United States who was prepared to act as his sponsor (assuming physical custody of him), but he felt responsibility for his father?s detention and worried that his choice to pursue family sponsorship would harm his father. In several of our conversations with him, he wept uncontrollably over the possibility of inde?nite detention if he were reuni?ed with his father. Ultimately, he was reuni?ed with his separated father in detention without notice to his attorney. Another ?fteen-year?old child from Honduras was certain that he did not want to reunify with his separated mother in detention, but instead wished to pursue an independent immigration case in the United States. He was released to a sponsor before the court set a deadline for reuni?cation with a separated parent. 4 18cv428 DMS (MDD) Case Document 292-1 Filed 11/02/18 PageID.4641 Page60f 11 14. Further, several children did not wish to reunify with a separated parent, but instead sought to pursue an independent immigration case in the United States. One of these children was ?fteen years old and ?om Honduras. In his initial meeting with us, he did not reveal that he had been separated from his father. After three meetings, he disclosed to us that had he been separated, but did not desire reuni?cation because his father drank heavily, regularly beat his mother, siblings and him, and taunted him with cruel remarks regarding his gender identity. This child is currently enrolled in long term foster care through ORR, pursuing an immigration case independent of his father. This child, along with about 20 percent of the separated children we met, was screened as eligible for Special Immigrant Juvenile Status (SIJ S), an immigration status for children who have been abused, abandoned, or neglected by one or both of their parents. To qualify for SIJ S, an individual does not need to show a well-founded fear of persecution. 15. In some cases, a child?s wish to pursue sponsorship directly contradicted her separated parent?s wish to reunify. We represented two siblings who had been separated ?om their father, but wished to reunify with their mother, who had been residing in the United States prior to the arrival of the siblings. The mother ful?lled the sponsorship requirements, but ORR refused to release them to her because the father wished to pursue reuni?cation over both the children?s and mother?s wishes. The children spent more than four months in OR detention, isolated from family, until the Government ?nally relented and OR released the children to their mother?s care. 16. Among those children represented who have been reuni?ed with parents, we anticipate that few will be willing to endure another separation. Some, however, may be so badly affected by prolonged detention or so fearful of return to their home countries that they would rather be separated from their 5 18cv428 DMS (MDD) Case Document 292-1 Filed 11/02/18 PagelD.4642 Page7of 11 parents once again than remain in detention or lose their best chance of regularizing their immigration status and staying in the United States. The Reuni?cation Process 17. Reuni?cation occurred in two phases, in accordance with the Ms. court?s order establishing two deadlines for children in different age groups. Both phases proceeded without prior notice to attorneys. 18. The ?rst phase, involving children younger than ?ve, occurred in New York. The Department of Homeland Security ?ew parents of children to detention centers in New Jersey and Goshen, New York, and ICE transported them to New York City Immigration Court, the local site of reuni?cation. ORR then transported children from a shelter to the court. 19. did not receive notice of this plan. In anticipation of potential reuni?cations, we checked a daily government census that reports discharges from ORR custody. We compared the census to an independently maintained list of separated children. We then called the shelters to inquire as to the location of discharged separated children. Shelter staff themselves did not have de?nite answers. In one case, we were told that a number of reuni?cations were to occur that day at New York City Immigration Court. We sent lawyers on site. But instead, the shelter drove several children in a van for hours, circling the immigration court without parking. Because ICE had failed to transport parents from a local detention center to the court, ORR returned the children to the shelter. 20. The second phase of reuni?cations, involving children ?ve and older, also occurred without advance notice to attorneys. Once again, checked the daily census for notice that a child had exited ORR custody. But this method of veri?cation could only be carried out the day after a child had already 6 18cv428 DMS (MDD) Case Document 292-1 Filed 11/02/18 PageID.4643 Page8of 11 been discharged. Further, the census revealed only that a child was no longer in OR custody. It did not report where or to whom a child had been released. 21. Several days after a separated child?s release, in some cases as many as ?ve, we received release documents from ORR that reported the location where a child had been released. But this information was unreliable as to a child?s actual location, because it stated only that a child had been released to ICE custody in an adult immigration detention center. In reality, many of the families reuni?ed in detention were subsequently released into the community and?made their way to addresses unknown to us. We have repeatedly asked ICE attorneys in immigration court for this address information. They have not provided it. 22. In the time between the Ms. PI and the actual reuni?cation, we attempted to counsel our clients about the legal consequences of reuni?cation and the possible manners in which they would be reuni?ed. This task was dif?cult because without individualized notice of the Government?s plan for our clients, we could not reliably predict when or how reuni?cation would occur or the legal consequences it would bring. 23. Children asked us if they would be reuni?ed in a detention center or released with their parents. Children asked us if they would be immediately deported or if they would have an opportunity to see a judge after they were reuni?ed. Ultimately, we could only answer that we did not know, and then discuss the rami?cations of every possible scenario so as to best prepare our clients to respond to each situation. For younger children, especially, this was a confusing time that produced additional anxiety. 24. Because several months have passed since reuni?cations occurred, we now know which of our clients remain in detention and which were released into the community. For those who continue in detention with their parents, we have made referrals to local legal service providers. Through contact with one of these 7 180v428 DMS Case Document 292-1 Filed 11/02/18 PageID.4644 Page90f 11 providers, we know that at least one of our clients, a teenaged boy whom we had screened as eligible for immigration relief and who had conveyed to us his desire to pursue an independent case, has become desperate in detention and now wishes to repatriate to his country of origin. Voluntary Departure 25. Of the 96 separated children that represented or represents from the pre-PI cohort, many received an order of voluntary departure. 26. counseled children to apply for voluntary departure in order to expeditiously reunify with a separated parent who had already been deported, a separated parent who we were told faced imminent removal, or a non-separated parent or family member who remained in the country of origin. An order of voluntary departure protects a client from some of the legal and ?nancial consequences of an order of deportation. We began to pursue this remedy for separated children before this Court had enjoined the Government from removing the separated parents without their children. 27. Even after the PI was entered, however, the ICE lawyers who prosecuted the immigration cases against our child-clients continued to represent to both us and the New York Immigration Court that particular parents had been or would soon be deported pursuant to removal orders that had been issued after the parents failed credible or reasonable fear interviews. Having no independent information about these parents, we accepted these representations and counseled a few of our child-clients to accept voluntary departure even after the PI had been entered. 28. At least 23 orders of voluntary departure we received for separated children have been executed. These children have been repatriated to their 8 18cv428 DMS (MDD) Case Document 292-1 Filed 11/02/18 PagelD.4645 Page 10 of 11 countries of origin to reunify with their separated parents or other family members in their home countries. 29. At least three orders of voluntary departure received by clients remain unexecuted because the Government reuni?ed our clients with a parent within the United States prior to effectuation of the voluntary departure order. The Government then released the family unit, but failed to provide address information that would allow us to contact our clients. 30. Separated children with unexecuted orders of voluntary departure will be subject to converted orders of removal if they do not depart the country before their departure deadlines. In addition, they will be subject to ?ve- or ten-year reentry bars, ten years of ineligibility to become lawful permanent residents, and ?nes of up to $5000 each. To protect clients against these outcomes, has moved to reopen the cases of its three clients in immigration court. located and received permission for the motion to reopen from one of those clients; could not locate the other two, but ?led the motions anyway, explaining to the Immigration Court that the motions were ?led without the children?s knowledge but to protect their legal interests. By law, such motions automatically convert the children?s orders of voluntary departure to orders of removal. The motions are still pending with the immigration court. 31. I have communicated with the larger network of federally subcontracted legal services providers to determine if they also have clients with unexecuted orders of voluntary departure. On September 6, 2018, and again on October 9, 2018, I sent emails over a listserv of federally subcontracted legal service providers inquiring whether any provider had received an order of voluntary departure for a client who was subsequently reuni?ed within the United States prior to the order?s effectuation. To date, I have received information that six reuni?ed children, including the three represented by have unexecuted 9 180V428 DMS (MDD) Case Document 292-1 Filed 11/02/18 PagelD.4646 Page 11 of 11 otherwise befall these children. orders of voluntary departure that have converted or will convert to orders of removal. On information and belief, this is not a complete list of children in this predicament. A list of the children known to me, using de-identified information, is below. I will provide identifying information if the Government agrees to assist in seeking to prevent the serious adverse immigration consequences that will First Name Last 3 Digits Departure Motion to Reopen Filed? I of A-Number Deadline Aura I 192 10/17/18 Yes Danilo 549 10/16/18 None known; child may have been repatriated with parent Ever 872 10/3 1/ 1_8 No Jessica 360 10/26/ 18 Yes Kleverson 440 10/16/18 123i Yesica 249 11/14/18 None known 32. We know of only a few of these children. They badly need the help of the parties and the court to avoid unfair and severe penalties. lg Date Anthony Enriquez, Esq. Director of the Unaccompanied Minors Program Catholic Charities Community Services of the Archdiocese of New York 10 18cv428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4647 Page10f16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Ms. L, et al., Plaintiffs, vs. U.S. Immigration and Customs Enforcement, et Defendants. M.M.M., on behalf of his minor child, J.M.A., et al., Plaintiffs, vs. Jefferson Beauregard Sessions, Attorney General of the United States, et al., Defendants. Case No. 3: 1 Honorable Dana M. Sabraw Case No. Honorable Dana M. Sabraw CLASS ACTION Final Hearing on Approval of Settlement November 15, 201 8 DECLARATION OF ALEXANDRA L. RIZIO, ESQ., SENIOR STAFF ATTORNEY AT SAFE PASSAGE PROJECT Case Document 292-2 Filed 11/02/18 PageID.4648 Page20f 16 I, Alexandra L. Rizio, Esq., pursuant to 28 U.S.C. 1746, declare that the following is true and correct: Background 1. My name is Alexandra L. Rizio. I am a Senior Staff Attorney for the Safe Passage Project, a non-pro?t legal services organization in New York that provides free legal representation to immigrant children. I have been employed by Safe Passage Project since February 2015. 2. Safe Passage Project generally represents unaccompanied children who are facing removal proceedings and live in New York City and Long Island. 3. In June 2018, Safe Passage received a request from Catholic Charities Community Services of the Archdiocese of New York to represent a number of children who had been separated from their parents at the U.S.-Mexico border and relocated to shelters in the New York area contracted by the Office of Refugee Resettlement At first, Safe Passage was assigned the cases of certain children who were placed in the custody of Cayuga Centers in New York City. By mid-July, Catholic Charities had referred the cases of an additional 50 children who resided in shelters in New York City, Long Island, and the Hudson Valley. All told, Safe Passage Project entered our appearances for 6 separated children referred to us by Catholic Charities. Representation and Determination of Client Wishes 4. I served as Attorney of Record for all 61 children, and filed as soon as the referrals were made. Additional Safe Passage colleagues also served as co-counsel in numerous cases. Our work was limited in scope to representing the children during their detention in ORR custody, and to facilitating the accomplishment of their goals (to reunite with a parent, whether in the United States or in their home country, or to be released to a sponsor). 1 18cv428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4649 Page30f 16 5. Over the course of ?ve months, my colleagues and I interviewed 57 of the children, some of them multiple times, at the child welfare agencies that had custody of them (four of the children were transferred out of OR custody after the referrals were made and after we entered our appearance as their attorneys, but before we could interview them). Our objectives during the interviews were to learn the children?s wishes, to gather information about the possible location of their parents, and to gather necessary documents to facilitate the accomplishment of the children?s wishes, whether that was to be reunited with the child?s parent, either in the community or in detention; to be released to another relative in the United States; or to return to the child?s home country. 6. As part of our interview process, we spoke to the children, their ORR case workers, and if possible, their parents and relatives. We spoke to parents in the children?s home country, to relatives in the United States who were being considered as ORR ?sponsors,? and to parents in federal immigration detention or criminal detention facilities. 7. Communication with detained parents to ascertain their wishes for their children was extremely difficult. Often, we did not know where the parents were. Safe Passage Project staff and volunteers searched the Immigration and Customs Enforcement Online Detainee Locator, but it was often not re?ective of the parents? actual location. The children often did not know their parent?s full name or date of birth. We did not know the parent?s assigned Alien Numbers numbers?), and so had to guess using sequential numbering based on the child?s A numbers. This was often ineffective. Making calls directly to parents in detention was impossible. We were forced to wait for parents to call the children?s case workers or their partners in their home country, and had to pass messages to them through the case workers or partners. This circuitous method of 2 18cv428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4650 Page4of 16 communication was neither ef?cient nor con?dential, but we were forced to rely on it. Calls to parents? deportation of?cers went unanswered, or else we were told that we would not be able to speak to the parent directly. 8. Determining the wishes of very young children in detention with limited input of an adult or legal guardian was also extremely challenging. While young children may be able to express their wishes in general terms, it is dif?cult for them to make more complex legal decisions or to consider multiple eventualities for the purposes of ranking outcomes in order of preference. 9. It was even more dif?cult to ascertain the wishes of our clients because of the evident trauma they experienced. Though we are not medical professionals, my colleagues and have experience working with young survivors of trauma. 1 am con?dent that many of the children we represented suffer from diagnosable conditions as a result of their separation. Words that my colleagues and I used to describe our separated child-clients include ?despondent,? ?depressed,? ?sad,? ?tearful,? ?angry,? ?distrustful,? and ?hopeless.? 10. Despite these challenges, my colleagues and I employed multiple strategies to determine the wishes of our clients. We drew pictures and charts, spoke in non-legal terms, and offered ?if/then? scenarios that we helped our clients rank in order of preference. For example, we would say, ?If your parent has to go back to Guatemala, do you want to go back to Guatemala with them? Or do you want to live somewhere else?? ?Do you want to see your mom again as soon as possible, even if that means living in a detention facility, or would you rather live with your aunt, even if your mom would not be there?? I 1. Several of the children did not speak Spanish as a ?rst language, but rather spoke an indigenous language or dialect. In one case, we believed that a child spoke the Chuj language of Guatemala, but the child was so young and 3 lch428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4651 Page50f 16 traumatized that he was practically non?verbal. To this day, I am not sure if we correctly identi?ed the child?s native language, or if he was simply unable to speak. 12. Despite these challenges, my coworkers and I were able to determine, to the best of our abilities, the wishes and goals of our clients. The children?s goals fell into three general categories: 1) Reunite with their parents anywhere, including in immigration detention; 2) seek release to an ORR sponsor because the parent had already been deported or the child did not wish to reunite with the parent in immigration detention; 3) repatriate with or without the separated parent. Outcomes 13. As of October 19, 2018, 45 of the 61 children we represent or had represented were reunited with their parents according to their wishes. We were unable to determine the wishes of four of the children for whom we entered our appearance because they were reunited with their parents or released to an OR sponsor before Safe Passage could conduct an intake interview. Of the 49 children who were reunited with family members (parents or ORR sponsors), we believe that 44 were released from immigration detention, whereas four remain in immigration detention. At least one reunited parent-child pair has repatriated since being reunited in immigration detention; it is possible that more families out of the 49 reunited pairs have repatriated, but Safe Passage is not aware of it. 14. Safe Passage Project helped facilitate voluntary departure for four of our clients: One reunited with a parent in immigration detention before repatriating, and three were forced to travel back to their country of origin without a parent, because the parent had already been removed. 15, Eight of our 6] clients expressed more complex wishes. While they all strongly desired to be reunited with their parents, they did not wish to reunite if 4 180v428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4652 Page6of 16 it meant inde?nite detention in an immigration facility. Others did not wish to reunite if the reuni?cation was a precursor to, or a result of, accepting voluntary departure. Therefore, based on the information available to them about their parent?s situation and the possibility of inde?nite detention or repatriation, these children chose to pursue release to an ORR sponsor. 16. For example, one client, F.C.A., age sixteen, expressed fear of returning to Guatemala because of rampant violence, and because he was targeted by evangelicals for being Catholic. Safe Passage Project conducted an intake interview of F.C.A. at the ORR shelter in New York State where he resided at the time. According to the Safe Passage staff attorney who conducted the interview, .C.A. appeared despondent and depressed. Several times during the intake, he put his head in his hands and cried. Even though he was, at the time of the interview, in the less-restrictive setting of ORR custody, he still clearly expressed that he wanted to be free from detention entirely. l-Ie speci?cally and emphatically stated that, though he wanted to see his father again, he did not want to reunite if it meant staying in detention. Instead, he would rather be released to an ORR sponsor so as to be free from detention. Shortly after our initial interview, F.C.A. was transferred from the ORR shelter in New York back to immigration detention near the border before we were able to ?le anything to effectuate his wishes of preventing prolonged detention. 17. As of October 19, 2018, of those eight who expressed their wish to be released to an ORR sponsor, seven have been released to a sponsor, and their parents were deported; one (F.C.A., paragraph 18, above) was reunited with his parent in immigration detention against his wishes, and to my knowledge he remains there. 5 180v428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4653 Page7of 16 18. At least one client who was released to an ORR sponsor is seeking Special Immigrant Juvenile Status. The father of client .A.T.M. (523) was deported soon after they crossed the border together. Safe Passage Project conducted an initial interview of .A.T.M. at his ORR shelter on July 3, 2018. Shortly after, he was released to the care of his uncle in Queens, NY, and Safe Passage Project accepted case for full representation because he now lives in the geographic area we serve. Represented by a Safe Passage Project staff attorney, .A.T.M. obtained the underlying family court orders based on his mother?s abandonment and neglect: his mother left him when he was an infant and had no role in his upbringing. In September 2018, .A.T.M. ?led an [-360 Petition for Special Immigrant Juvenile Status with US. Citizenship and Immigration Services. His visa petition remains pending. 19. A chart showing outcomes for each of Safe Passage Project?s separated?child-clients is attached as Exhibit A. I use the children?s initials and the last three digits of their A numbers to avoid identifying them. The Reuni?cation Process 20. The process by which children were reunited with their parents was inconsistent. Safe Passage Project sometimes received notice from children?s ORR case managers 12-24 hours in advance of a child?s relocation. Other times, we would learn that a child had been relocated after the fact. Even with this occasional advanced notice, we did not have an opportunity to discuss with the children whether or not they would remain in detention after reuni?cation, because we usually did not know. Moreover, we had no idea at the time of reuni?cation how that process would affect the child?s opportunity to remain in the United States. The Proposed Settlement, which clarifies what course the children?s 6 l8cv428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PageID.4654 Page80f 16 immigration cases will take, had not been ?led when most of the reuni?cations occurred, during July and August. 2 I. In various cases, a child?s ORR case manager relayed to me that the child had been moved, but the case manager did not know where. I then had no idea where my client was until I reached out to non-pro?t organizations working in various immigration detention facilities, which were able to con?rm that my client was present. 22. In the most jarring example, we learned that a child was reuni?ed with his father in detention a full ?ve days after the reuni?cation. We only learned about the reuni?cation because the pro bono attorneys of the father, with whom we had been in contact, spotted the father with a child in the facility?s cafeteria, and contacted us to ask if the two had been reunited. We then reached out to ICE, which con?rmed that reuni?cation had in fact occurred. 23. The Government (ORR, DHS) did not provide Safe Passage Project with forwarding information for any of our clients who were reuni?ed with their parents and subsequently released from detention. Safe Passage Project obtained contact information for as many of these families as possible by completing our own investigations and connecting with nonpro?ts and pro bono attorneys who provided services to these families in detention or upon release. But there are at least fourteen clients with whom we have lost contact since their release. 24. For children who were released to ORR sponsors, we have more concrete contact information because Safe Passage Project was already working closely with the proposed sponsor to facilitate the child?s release. On some occasions, ORR would send Safe Passage the Veri?cation of Release and associated discharge paperwork once a child was released to a sponsor. 7 18cv428 DMS (MDD) Case Document 292-2 Filed 11/02/18 PagelD.4655 Page90f 16 25. I know of at least two clients (H.Y.V.B., 952, and F.C.A., 417) who were reunited with their parents, who remain detained, and who want to be released from detention. F.C.A., described in paragraph 16, above, did not want to reunite with his father if it meant living in detention, and he expressed fears of repatriating due to rampant violence and harassment on account of his Catholic religion. He preferred to be released to an ORR sponsor, but F.C.A. was moved back to immigration detention near the border before we were able to stop his transfer. 26. H.Y.V.B., age seven, wanted to reunite with his father, but did not want to remain in detention. Subsequent conversations with H.Y.V.B. and his father con?rmed that they remained in detention until the pair repatriated together in October 2018. 27. Most of our 61 clients are no longer in our jurisdiction. Safe Passage is, where possible, making targeted referrals to legal services organizations and will send letters to all clients formally terminating our representation. Nowhzoq Date L. Rizio, Esq. Senior Staff Attorney Safe Passage Project 185 West Broadway New York, NY 10013 8 18cv428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4656 Page 10 of 16 Safe Passage Project Exhibit A Client List by Client Goals and Current Status Initials Last 3 digits of A# Status, per information and belief 1 S.A.H.C. 901 Reunified with parent, released (*location unknown) 2 J.L.R. 062 Reunified with parent, detained 3 E.E.R.B. 512 Reunified with parent, released 4 P.G.M. 519 Reunified with parent, released (*location unknown) 5 M.A.C.S. 945 Reunified with parent, released 6 L.D.M.H. 953 Reunified with parent, released 7 M.A.E.L. 789 Reunified with parent, released (*location unknown) 8 V.G.M. 246 Reunified with parent, detained Goal: Reunify with parent anywhere 1 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4657 Page 11 of 16 Initials Last 3 digits of A# Status, per information and belief 9 F.P.X. 788 Reunified with parent, released 10 S.J.D.M. -451 Reunified with parent, detained 11 I.G.G. -489 Reunified with parent, released (*location unknown) 12 D.E.A.L. -702 Reunified with parent, released (*location unknown) 13 A.D.A.M. -832 Reunified with parent, released 14 M.R.B.P. -567 Reunified with parent, released 15 J.F.B.P. -568 Reunified with parent, released 16 E.E.C.A. -903 Reunified with parent, released 17 A.N.C.M. -203 Reunified with parent, released 18 C.A.C.M. -204 Reunified with parent, released 19 L.F.O. -200 Reunified with parent, released 2 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4658 Page 12 of 16 Initials Last 3 digits of A# Status, per information and belief 20 M.M.M.Z. -192 Reunified with parent, released (*location unknown) 21 S.J.M.S. -673 Reunified with parent, released 22 L.R.O. -199 Reunified with parent, released 23 A.R.M. -256 Reunified with parent, released 24 Y.A.T.G. -639 Reunified with parent, released (*location unknown) 25 E.A.R.A. -592 Reunified with parent, released 26 J.B.B. -947 Reunified with parent, released 27 A.D.S.S. -899 Reunified with parent, released 28 D.J.B.S.O. -637 Reunified with parent, released 29 R.M.P. -996 Reunified with parent, released 30 H.Y.B.B. -952 Reunified with parent, subsequently repatriated 31 J.E.R.S. -733 Reunified with parent, released 32 N.D.D.M. -218 Reunified with parent, released (*location unknown) 33 A.E.M. -968 Reunified with parent, released (*location unknown) 3 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4659 Page 13 of 16 Initials Last 3 digits of A# Status, per information and belief 34 O.G.T. -097 Reunified with parent, released (*location unknown) 35 C.D.L.D. -475 Reunified with parent, released 36 H.D.L.D. -476 Reunified with parent, released 37 E.A.M.M. -610 Reunified with parent, released 38 J.L.N.P. -060 Reunified with parent, released (*location unknown) 39 E.R.G. -491 Reunified with parent, detained 40 R.V.S. -227 Reunified with parent, released 41 I.B.J. -184 Reunified with parent, released (*location unknown) 42 A.J.L.M. -597 Reunified with parent, released (*location unknown) 43 A.A.M.O. -664 Reunified with parent, released 44 B.J.P.L. -559 Reunified with parent, released 45 S.L.P.H. -944 Reunified with parent, released 4 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4660 Page 14 of 16 Initials Last 3 digits of A# Status, per information and belief 46 J.Y.J.M. -570 Accepted voluntary departure while father was detained but had a removal order; reunified en route to COO 47 R.G.H. -946 Accepted voluntary departure after father deported; reunified in COO 48 L.D.G.S. -603 Accepted voluntary departure after father deported; reunified in COO 49 B.M.J. -585 Accepted voluntary departure after father deported; reunified in COO Goal: Reunify with parent despite knowing that would mean return to country of origin (COO) 5 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4661 Page 15 of 16 Initials Last 3 digits of A# Status, per information and belief 50 R.J.C.A. -403 Released to ORR sponsor, not reunified with parent (parent deported) 51 N.O.O.Y. -709 Released to ORR sponsor, not reunified with parent (parent deported) 52 W.O.S.L. -720 Released to ORR sponsor, not reunified with parent (parent deported) 53 F.C.A. -417 Reunified with parent and currently detained, against child’s wishes 54 C.L.D.M. -076 Released to ORR sponsor, not reunified with parent (parent deported) 55 H.D.E.M. -026 Released to ORR sponsor, not reunified with parent (parent deported) Goal: Reunify with parent, but not in detention or via repatriation 6 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case 3:18-cv-00428-DMS-MDD Document 292-2 Filed 11/02/18 PageID.4662 Page 16 of 16 Initials Last 3 digits of A# Status, per information and belief 56 J.A.T.M. -523 Released to ORR sponsor, not reunified with parent (parent deported) 57 V.C.C. -062 Released to ORR sponsor, not reunified with parent (parent deported) 58 A.N.F.L. -831 Reunified with parent, released 59 J.A.C. -194 Released to ORR sponsor, not reunified with parent (parent deported) 60 E.B.A.H. -117 Reunified with parent, released 61 O.A.A.D. -030 Reunified with parent, released (*location unknown) Other: child transferred before intake interview conducted 7 18cv428 DMS (MDD) Exhibit A to Declaration of Alexandra L. Rizio Case Document 292-3 Filed 11/02/18 PagelD.4663 Page10f10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Ms. L, et al., Plaintiffs, vs. US. Immigration and Customs Enforcement, et al., Defendants. M.M.M., on behalf of his minor child, .M.A., et al., Plaintiffs, vs. Jefferson Beauregard Sessions, 111, Attorney General of the United States, et al., Defendants. Case No. Honorable Dana M. Sabraw Case No. Honorable Dana M. Sabraw Final Hearing on Approval of Settlement November 15 2018 DECLARATION OF KAAVYA VISWANATHAN, ESQ. PRO BONO MANAGING ATTORNEY AT THE LEGAL SERVICES CENTER Case Document 292-3 Filed 11/02/18 PageID.4664 Page20f 10 I, Kaavya Viswanathan, pursuant to 28 U.S.C. 1746, declare that the following is true and correct: Background 1. I am the Pro Bono Managing Attorney at The Door?s Legal Services Center. The Door is a non-pro?t providing free, comprehensive youth development services to New York City youth from the ages of 12 to 21. The Door?s Legal Services Center represents youth in matters including family law, housing, public bene?ts, and immigration. I submit this declaration in support of the objections to the proposed class settlement ?led by legal services providers that directly represent the children in the class. 2. I joined The Door?s LSC in June 2018. In my current position, I manage a team of attorneys who represent immigrant youth in New York family court and immigration proceedings. I also manage the relationships with pro bono law ?rms and corporate partners, and supervise pro bono attorneys as they represent immigrant youth. Prior to joining the LSC, I was the Senior Pro Bono Coordinating Attorney at the New York of?ce of Kids in Need of Defense (KIND), where I worked with unaccompanied alien children in removal proceedings. 3. In June 2018, the LSC began representing or supervising the representation of seventeen children who had been separated from a parent at the border1 and were in the custody of the Of?ce of Refugee Resettlement in the New York City area. The LSC represented ?ve of these children in-house, of which I personally represented four children. The LSC placed the remaining 1 The LSC represented an eighteenth child, who was separated at the border from his older brother. This child, however, is not a member of the class. 1 18cv428 DMS (MDD) Case Document 292-3 Filed 11/02/18 PagelD.4665 Page30f 10 twelve cases with pro bono attorneys at four law ?rms. I closely supervised each of these twelve cases.2 The Range of Children and Their Wishes 4. The seventeen children the LSC represented ranged in age from ?ve years old to seventeen years old. Thirteen of the children were fourteen years old or older. Fifteen of the children were from Guatemala, one was from Honduras, and one was from El Salvador. 5. LSC attorneys met with the seventeen children in OR custody. We executed retainers with each child, committing to full representation in immigration matters for as long as the child remained in the greater New York City area. We ?led G-28s for all the children. Some of the children had Immigration Court appearances while in OR custody, and we ?led E-285 with the court in those cases. 6. In our client meetings, the children all asked about their parents. They did not understand why they had been separated, or what was happening to their parents. During initial meetings, many of the children had not yet been able to speak with the parents from whom they were separated. These children were especially anxious, and repeatedly asked us if we could help them ?nd their parents. F., our ?ve?year-old client, kept asking when he would see his mother again. His older brother, who was in ORR custody with him, told F. that their mother was working and would come back soon. Eventually, all our clients were able to speak with their parents, and this made them happier. However, as the children spent more weeks in OR custody, we noticed other signs of trauma. A., 2 Going forward, references to the representation of the children encompass both direct representation and supervision of pro bono representation. Similarly, references to LSC attorneys encompass both attorneys employed by the LSC and attorneys employed elsewhere but supervised by an LSC attorney. 2 18cv428 DMS Case Document 292-3 Filed 11/02/18 PagelD.4666 Page4of 10 a thirteen-year-old boy, was in OR custody for three months, waiting to be released to a sponsor after the father with whom he entered the country was deported. When we ?rst met A., he was a gregarious, funny boy. By the end of his time in custody, he was visibly depressed with no affect and spoke very little. 7. When meeting with our clients, we tried to ascertain their ?rst and highest priority: was it to reunify with their parents, to remain in the United States, to be released to another relative in the United States, to return to their home country? Heartbreakingly, but unsurprisingly, our clients did not want to make this choice and instead informed us that they wished to remain in the United States with their parents. We ascertained the children?s wishes by speaking to them in repeated meetings, and doing our best to explain what was happening and all the potential outcomes. In addition to speaking directly to the children, we contacted (with the children?s permission) as many of their relatives as possible. We spoke to parents and other relatives in the children?s home countries, to potential sponsors in the United States and, where possible, to the children?s separated, detained parents. In almost no cases were we able to speak directly with the detained parents because of restrictions on contacting detention facilities. In some cases, however, we were able to speak to Deportation Of?cers or legal services providers with information about the detained parents? cases. We also spoke to each child?s ORR case manager, to understand the options for release to a sponsor, and to discuss what plan the case manager felt was in the child?s best interests. 8. In its June 26, 2018, ruling, this Court gave the Government until July 26, 2018, to reunify all children age ?ve and older with the parent from whom they had been separated. However, the Government did not provide our attorneys with any information as to what reuni?cation would look like, or how the children?s immigration cases would proceed after reuni?cation. Given this complete lack of 3 18cv428 DMS (MDD) Case Document 292-3 Filed 11/02/18 PagelD.4667 Page50f 10 information, we were unable to meaningfully review with our clients the potential legal consequences of the decision to reunify with a parent. 9. We explained to our clients that we did not know what would happen if and when they were reuni?ed with their parents?we had no information as to whether reuni?cation would mean: 1) reuni?cation and release of both parent and child; 2) reuni?cation and continued detention of both parent and child; 3) reuni?cation and deportation of both parent and child; or 4) some other combination of events. We explained to the children that, based on the limited information we had at the time, their best chance of remaining in the United States and pursuing any independent claim to immigration relief meant declining reuni?cation and instead remaining in ORR custody and seeking release to a sponsor. 10. The thirteen children who were fourteen years old or older were able to understand their circumstances and, after some consideration, stated that their priority was to remain in the United States, even if that meant continued separation from their parents. One thirteen-year-old client also stated that he wished to remain in the United States, even if that meant continued separation. These clients feared returning to their countries of origin and/or wanted to pursue the hope of a better life in the United States. Some of the children had previously been the victims of violent attacks by gang members. Another child had been abused by his father and had watched his father viciously abuse his mother. One child had been abandoned by his father at a young age. Many children had been forced to drop out of school in order to work and support their families. Based on our meetings with the children, we believed that many had colorable claims for asylum and Special Immigrant Juvenile Status. These clients all sought release to a sponsor in the United States. 4 18cv428 DMS (NIDD) Case Document 292-3 Filed 11/02/18 PagelD.4668 Page60f 10 11. Two twelve-year-old clients were unable to de?nitively respond to the choice of reuni?cation versus remaining in the United States, and stated at various times that they: 1) wished to remain in the United States with their parents; 2) wished to reunify with their parents, whether in the United States or their country of origin; and 3) would do whatever their parents told them to do. 12. The ?ve-year-old client was unable to articulate his wishes, but was in ORR custody with his then-?fteen-year-old brother, who stated that as long the siblings remained together, they wished to remain in the United States. 13. Ultimately, eight of the children we represented did not have to make the choice of reuni?cation versus remaining in the United States because the Government deported their parents before the court-ordered reuni?cation deadline. After learning that their parents had been deported, seven of these children decided that they wished to remain in the United States and be released to a sponsor, rather than reunifying with their parents in their home countries. The eighth child, a twelve-year-old girl, wished to reunify with her father, and we helped her obtain voluntary departure and return to Guatemala. 14. Prior to the court-ordered reuni?cation deadline, the Government released the parents of three children from detention. These three children were then released from OR custody and reunited with their parents in the community. The Reuni?cation Process 15. As the reuni?cation deadline approached, we represented six children, ranging in age from twelve to seventeen, who were still in OR custody and whose parents remained detained in the United States. 16. We asked the Government to give us at least 48 hours? notice before any child was to be moved from the New York area. We also asked the Government to tell us where and how the children would be reuni?ed with their 5 18cv428 DMS (MDD) Case Document 292-3 Filed 11/02/18 PagelD.4669 Page7of 10 parents, and what would happen to them after reuni?cation, speci?cally whether and for how long the children might be detained. 17. Two of the children were reuni?ed with their parents, and both parent and child were released into the community. 18. Reuni?cation for the remaining four children happened as follows: a. S. is a twelve-year?old boy from Guatemala who was separated from his father. S. was unable to decide whether he wished to reunify with his father if it meant returning to Guatemala, or remain separated from his father if it meant remaining in the United States. On July 27, 2018, I received an email from S.?s ORR case manager, informing me that, as of July 26, 2018, S. had been released from OR custody and was in transit to be reuni?ed with his father. This after-the-fact email was the ?rst noti?cation I received of S.?s release and transfer. I had no meaningful opportunity to speak with S. prior to his transfer, and no opportunity to discuss the consequences of reuni?cation with him. I was given no ?thher information about S.?s reuni?cation plan. A few days later, by searching the online ICE Detainee Locator system and following up with Texas-based legal services providers, I determined that S. had been reuni?ed with his father, and that they were both detained at Karnes in Texas. After approximately one month in family detention, during which RAICES represented and advocated for S.?s father, and I continued to represent and advocate for S., both S. and his father were released. b. H. is a fourteen-year-old boy from Honduras who was separated from his father. H. informed his attorneys that he wished to remain in the United States even if it meant continued separation from his father. H.?s attorneys understood that H.?s father agreed with his son?s wish. H.?s attorneys repeatedly contacted OR and advocated that H. remain in OR custody in New York, rather than be reuni?ed with his father. Nonetheless, on Sunday July 22, 2018 at 9:22 pm, H.?s attorneys received an email from OR, informing them that, in the next 48 hours, H. would be transferred from New York to reunify with his father at the El Paso Processing Center in El Paso, Texas. The attorneys were given no further information about H.?s reuni?cation plan. The attorneys were able 6 18cv428 DMS (MDD) Case Document 292-3 Filed 11/02/18 Page8of 10 to meet with H. before his scheduled transfer from New York, and during that meeting, H. changed his mind and decided that he did wish to reunify with his father. However, H.?s attorneys were unable to give him any information as to whether reuni?cation would mean prolonged detention, or what impact reuni?cation might have on his immigration case. H. was reuni?ed with his father, and they both remain detained at Karnes in Texas. . G. is a seventeen-year-old boy from Guatemala who was separated from his father. G. informed his attorneys that he wished to remain in the United States even if it meant continued separation from his father. G. wanted to be released to an uncle in the United States. G.?s uncle con?rmed that he was willing to act as a sponsor. The attorneys also spoke to G.?s mother in Guatemala, who stated that she wished for her son to remain in the United States and live with his uncle. G.?s attorneys were not able to directly reach G.?s father - in detention, but based on conversations with other relatives, they understood that G.?s father agreed that his son should remain in the United States with a sponsor. G.?s attorneys repeatedly contacted OR and advocated that G. remain in OR custody in New York, rather than be reuni?ed with his father. Nonetheless, on Tuesday July 24, 2018, at 8:22 G.?s attorneys received an email from ORR, informing them that G. would be transported to El Paso, Texas, for processing that same day. This was the ?rst noti?cation G.?s attorneys received of his transfer. They had no meaningful opportunity to speak with G. prior to his transfer, and no opportunity to discuss the consequences of reuni?cation with him. They were given no further information about G.?s reuni?cation plan. G.?s attorneys had prepared a waiver of reuni?cation form, and were in the process of sending it to G.?s father to sign, when G. was abruptly transferred from New York. A few days later, by reaching out to Texas-based legal services providers, G.?s attorneys determined that G. had been reuni?ed with his father. They both remain detained at Karnes in Texas. G. may be eligible for Special Immigrant Juvenile Status because it is not viable for him to reunify with his mother, who neglected him by allowing him to drop out of school in the 6th grade to work, and who is extremely ill and unable to properly care for him. In meetings with his attorneys, G. did not expressed a fear of returning to Guatemala. Under the terms of the settlement, if neither G. nor his 7 18cv428 DMS (MDD) Case Document 292-3 Filed 11/02/18 PageID.4671 Page90f 10 father passes a credible fear interview, G. will be unable to pursue Special Immigrant Juvenile Status. d. W. is a ?fteen-year-old boy from Guatemala who was separated from his father. W. informed his attorneys that he wished to remain in the United States even if it meant continued separation from his father. W. also speci?cally stated that he did not want to go back into detention, and wanted to be released to a sponsor as soon as possible. Based on conversations with both W. and his ORR case manager, W.?s attorneys understood that W.?s father agreed with his son?s wishes. W.?s attorneys repeatedly contacted OR and advocated that W. remain in OR custody in New York, rather than be reuni?ed with his father. Nonetheless, on Tuesday July 24, 2018 at 6:57 pm, W.?s attorneys received an email from OR, informing them that W. would be transported to El Paso, Texas, for processing that same day. This was the ?rst noti?cation W.?s attorneys received of his transfer. They had no meaningful opportunity to speak with W. prior to his transfer, and no opportunity to discuss the consequences of reuni?cation with him. They were given no further information about W.?s reuni?cation plan. A few days later, by reaching out to Texas-based legal services providers, W.?s attorneys determined that W. had been reuni?ed with his father, and that they were both detained at Karnes. When W.?s attorneys spoke to him in detention, W. was clear that he wished to leave detention and that he wanted to remain in the United States, even if it meant re-separation from his father. W.?s father agreed. W.?s attorneys advocated with ICE and the DOJ, and ultimately succeeded in having W. transferred back to OR custody and released to a sponsor. W. is now classi?ed as an Unaccompanied Alien Child and is in Section 240 removal proceedings. W. is potentially eligible for Special Immigrant Juvenile Status based on parental neglect, as he dropped out of school after the 6th grade and began working in agriculture. 19. H., G., and W. are examples of children who wished to opt out of reuni?cation in order to remain in the United States and pursue independent immigration relief, but were reuni?ed against their will. The children?s attorneys received minimal notice of the reuni?cations. Additionally, the children were moved from New York late at night, thereby minimizing the attorneys? ability to 8 18cv428 DMS (MDD) Case Document 292-3 Filed 11/02/18 PageID.4672 Page 10 of 10 seek injunctive relief preventing the moves. The children?s attorneys had no opportunity to review with their clients the potential legal consequences of the decision to reunify. Even if the attorneys had received suf?cient notice and opportunity to meet with their clients, they would have been unable to provide complete and accurate legal advice, as the true legal consequences of reuni?cation only became apparent in September 2018, upon the ?ling of the Proposed Settlement. 20. Thanks to his attorneys? tireless efforts, W. has now been released to a sponsor and is able to pursue any available avenue of immigration relief in INA 240 proceedings. H. and G. do not currently have this option. Dated: 0ch (oer SI ,2018 WA New York, NY Kaavya Viswanathan, Esq. Pro Bono Managing Attorney The Door?s Legal Services Center 121 Avenue of the Americas, 3rd Floor New York, NY 10013 Phone: 212-941-9090 ext. 3409 E-mail: kviswanathan@door.org 9 18cv428 DMS (MDD) Case Document 292-4 Filed 11/02/18 PageID.4673 PagelofS Catherine Weiss? (NJ 018582006; NY 2361491) LOWENSTEIN SANDLER, LLP One Lowenstein Drive Roseland, New Jersey 07068 (973) 597-2500 cweiss@lowenstein.com A ?army for Lego! Service Providers for Children, Objectors dinitted pro hac vice UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Ms. L, et al., Case No. Plaintiffs, Honorable Dana M. Sabraw vs. US. Immigration and Customs Enforcement, - et al., Defendants. Case No. Honorable Dana M. Sabraw M.M.M., on behalf of his minor child, J.M.A., et al., Plaintiffs, CERTIFICATION OF SERVICE vs. Jefferson Beauregard Sessions, Attorney General of the United States, et al., Defendants. 1, Denise Panzer, being of full age, hereby certify that on this date I caused one copy of the following documents: 0 Objections to Proposed Settlement on Behalf of Children in the Class by Legal Service Providers That Directly Represent These Children, Including Catholic 357081? 2031192811 Case Document 292-4 Filed 11/02/18 PageID.4674 Page20f5 Charities Community Services of the Archdiocese of New York, The Door, Inc., and Safe Passage Project; 0 Supporting Declarations of Anthony Enriquez, Kaavya Viswanathan, and Alexandra L. Rizzio; and 0 Certi?cation of Service to be delivered by regular mail to parties on the attached Service List. Dated: November 2, 2018 Ww?j Denise Panzer Case 3:18-cv-00428-DMS-MDD Document 292-4 Filed 11/02/18 PageID.4675 Page 3 of 5 Service List ADAM L. BRAVERMAN United States Attorney SAMUEL WILLIAM BETTWY Assistant U.S. Attorney U.S. Attorney’s Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 Telephone: (619)557-5662 Efile.dkt.civ@usdoj.gov Samuel.Bettwy@usdoj.gov AUGUST EDWARD FLENTJE SCOTT GRANT STEWART U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 3613 Washington, DC 20530 Telephone: 202-514-3309 august.flentje@usdoj.gov scott.g.stewart@usdoj.gov JOSEPH H. HUNT Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant SARAH B. FABIAN Senior Litigation Counsel NICOLE N. MURLEY Trial Attorney U.S. Department of Justice Office of Immigration Litigation P. O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: 202-532-4824 sarah.b.fabian@usdoj.gov Nicole.Murley@usdoj.gov 35708/2 11/02/2018 203119281.1 Case 3:18-cv-00428-DMS-MDD Document 292-4 Filed 11/02/18 PageID.4676 Page 4 of 5 LEE GELERNT ANAND VENKATA BALAKRISHNAN JUDY RABINOVITZ DANIEL ANTONIO GALINDO ACLU Immigrants’ Rights Project 125 Broad Street 18th Floor New York, NY 10004 Telephone: 212-549-2618 dgalindo@aclu.org abalakrishnan@aclu.org JRabinovitz@aclu.org lgelernt@aclu.org STEPHEN B. KANG ACLU Foundation of Northern California SPENCER E. W. AMDUR ACLU Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: 415-343-0070 x0783 skang@aclu.org samdur@aclu.org BARDIS VAKILI ACLU Foundation of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138-7131 Telephone: (619) 232-2121 bvakili@aclusandiego.org Carol T. McClarnon Wilson G. Barmeyer Eversheds Sutherland (US) LLP 700 6th Street NW Suite 700 Washington, DC 20001 Telephone: 202-383-0946 carolmcclarnon@eversheds-sutherland.com wilsonbarmeyer@eversheds-sutherland.com JOHN H. FLEMING Eversheds Sutherland (US) LLP 999 Peachtree Street NE Suite 2300 Atlanta, GA 30309 Telephone: 404-853-8000 johnfleming@eversheds-sutherland.com -2- Case 3:18-cv-00428-DMS-MDD Document 292-4 Filed 11/02/18 PageID.4677 Page 5 of 5 Charles D. Reiter Simpson Thacher & Bartlett LLP 1999 Avenue of the Stars Floor 29 Los Angeles, CA 90067 Telephone: 310-407-7500 charles.reiter@stblaw.com JOHNATHAN JAMES SMITH SIRINE SHEBAYS Muslim Advocates P. O. Box 34440 Washington, DC 20043 Telephone: 202-897-2622 johnathan@muslimadvocates.org sirine@muslimadvocates.org SIMON YEHUDA SANDOVAL-MOSHENBERG SOPHIA LETICIA GREGG Legal Aid Justice Center 6066 Leesburg Pike #520 Falls Church, VA 22041 Telephone: 703-720-5605 simon@justice4all.org sophia@justice4all.org AARON M. OLSEN Haeggquist & Eck, LLP 225 Broadway Suite 2050 San Diego, CA 92101 Telephone: (619) 342-8000 aarono@haelaw.com JULIA ROMANO King & Spaulding 633 West Fifth Street Suite 1700 Lost Angeles, CA 90071 Telephone: 213-433-4355 jromano@kslaw.com -3-