Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4765 Page 1 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 JOSEPH H. HUNT Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director Office of Immigration Litigation WILLIAM C. SILVIS Assistant Director Office of Immigration Litigation SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation U.S. Department of Justice Box 868, Ben Franklin Station Washington, DC 20442 Telephone: (202) 532-4824 Fax: (202) 616-8962 14 15 ADAM L. BRAVERMAN United States Attorney 16 SAMUEL W. BETTWY 17 Assistant U.S. Attorney California Bar No. 94918 18 Office of the U.S. Attorney 19 880 Front Street, Room 6293 San Diego, CA 92101-8893 20 619-546-7125 21 619-546-7751 (fax) 22 Attorneys for Federal Respondents23 Defendants 24 25 26 27 28 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for PetitionersPlaintiffs *Admitted Pro Hac Vice Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4766 Page 2 of 17 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 2 3 MS. L, et al., Case No. 18cv428 DMS MDD 4 Petitioners-Plaintiffs, 5 6 7 8 9 10 JOINT STATUS REPORT vs. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Respondents-Defendants. 11 12 The Court ordered the parties to file a joint status report on November 8, 2018, 13 14 in anticipation of the status conference scheduled at 1:00pm PST on November 9, 15 2018. The parties submit this joint status report in accordance with the Court’s 16 instruction. 17 DEFENDANTS’ POSITIONS 18 I. 19 20 21 A. Update on Reunifications Defendants have appropriately discharged an additional 54 children since the 22 October 25, 2018 Joint Status Report, for a total of 2,404 children. 23 24 25 Looking ahead, there are 25 children proceeding towards reunification or another appropriate discharge. Specifically, there are: 26 27 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4767 Page 3 of 17 1 • 7 children in ORR care with a parent who is in the United States and 2 presently in class. This total of 7 children includes 2 children who were 3 previously reported as having parents outside the United States, but whom 4 5 the ACLU identified as having parents who recently returned to the United 6 States.1 Of the 7 children, 1 cannot be reunified at this time because their 7 parent is in other federal, state, or local custody (e.g., state criminal 8 9 detention). Defendants are working to appropriately discharge the 10 remaining 6 of 7 children, and to identify any possible barriers to their 11 discharge, meeting and conferring with Plaintiffs where appropriate for 12 resolution. See Table 1: Reunification Update. 13 • 7 children in ORR care who have parents presently departed from the 14 15 United States, who have cleared Processes 1 through 3 of the Court 16 17 approved reunification plan, and who are proceeding towards reunification 18 with their parents in their home country. See Table 2: Reunification of 19 Removed Class Members. 20 21 o Of these 7 children, 1 has a voluntary departure order. The 22 government is actively arranging travel to that child’s home country. 23 Another 4 of the 7 children have immigration proceedings that have 24 25 26 1 These children have concurrently been removed from reporting on children of 27 removed class members in Table 2. 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4768 Page 4 of 17 been dismissed or canceled by the government. The government is 1 2 actively arranging travel to their home countries as well. See Table 3 2: Reunification of Removed Class Members. 4 5 • 11 children in ORR care who have parents presently departed from the 6 United States, and for whom the ACLU has not yet provided notice of 7 parental intent regarding reunification (or declination of reunification). 8 9 Defendants are supporting the efforts of the ACLU to obtain statements of 10 intent from those parents. Once Defendants receive the notices from the 11 ACLU, Defendants will either reunify the children or move them into the 12 13 TVPRA sponsorship process, consistent with the intent of the parent. For 14 2 of the 11 children, the ACLU has been in contact with their parents for 15 more than 28 days without providing Defendants with notice of parental 16 intent. See Table 2: Reunification of Removed Class Members. 17 18 19 20 The data in Table 1 includes the additional re-categorized children referenced in the October 25, 2018 Joint Status Report, for a total of 2,667 children.2 Table 1 21 also includes a new category of children with parents presently departed from the 22 United States. This new category is included at the request of the Steering 23 24 2 Defendants determined after filing the October 25, 2018 Joint Status Report that 25 one child included in the 14 re-categorized children was already included in the children originally identified as possible children of potential class members. 26 Accordingly, the total number of possible children of potential class members is 27 2,667: 2,654 children originally identified plus 13 children re-categorized. 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4769 Page 5 of 17 1 Committee, to identify 3 children whose cases the Steering Committee has advised 2 will be delayed due to unique circumstances. 3 The current reunification status for children ages 0 through 17 is further 4 5 summarized in Table 1 below. The data in Table 1 reflects approximate numbers 6 maintained by ORR at least as of November 6, 2018. These numbers are dynamic 7 and continue to change as more reunifications or discharges occur. 8 9 10 Table 1: Reunification Update 2 Phase 1 Phase (5 and (Under 5) above) Description 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Total Total number of possible children of potential 103 class members Discharged Children 2,564 2,667 Total children discharged from ORR care: 2,362 2,458 2,032 2,115 330 343 25 25 0 18 18 0 3 3 0 7 7 96 • Children discharged by being reunified 78 with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors 18 [such as situations where the child’s separated parent is not eligible for reunification] or children that turned 18) Children in ORR Care, Parent in Class Children in care where the parent is not eligible for reunification or is not available for discharge at 0 this time: • Parent presently outside the U.S. o Steering Committee has advised that resolution will be delayed • Parent presently inside the U.S. 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4770 Page 6 of 17 1 2 3 4 5 6 7 8 9 10 o Parent in other federal, state, or local 0 1 custody o Parent red flag case review ongoing – 0 0 safety and well being Children in ORR Care, Parent out of Class 1 0 Children in care where further review shows they were not separated from parents by DHS 3 35 38 Children in care where a final determination has been made they cannot be reunified because the parent is unfit or presents a danger to the child 4 26 30 Children in care with parent presently departed from the United States whose intent not to reunify has been confirmed by the ACLU 0 99 99 Children in care with parent in the United States who has indicated an intent not to reunify 0 17 17 11 12 13 14 15 B. Update on Removed Class Members The current reunification status of removed class members is set forth in Table 2 below. The data in Table 2 includes the additional re-categorized children 16 referenced in the October 25, 2018 Joint Status Report. The data presented in this 17 Table 2 reflects approximate numbers maintained by ORR as of at least November 18 6, 2018. These numbers are dynamic and continue to change as the reunification 19 20 process moves forward. 21 22 23 24 25 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4771 Page 7 of 17 1 2 3 4 Table 2: Reunification of Removed Class Members REUNIFICATION REPORTING METRIC PROCESS STARTING POPULATION 5 6 7 8 9 10 11 PROCESS 1: Identify & Resolve Children with no “red flags” Safety/Parentage for safety or parentage Concerns PROCESS 2: Establish Contact with Parents in Country of Origin 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Children in ORR care with parents presently departed from the U.S. PROCESS 3: Determine Parental Intention for Minor Children with parent contact information identified Children with no contact issues identified by plaintiff or defendant Children with parent contact information provided to ACLU by Government Children for whom ACLU has communicated parental intent for minor: NO. REPORTING PARTY 117 Def’s. 117 Def’s. 117 Def’s. 117 Def’s. & Pl.’s 117 Def’s. 106 Pl’s. • Children whose parents 99 waived reunification Pl’s. • Children whose parents chose reunification in 7 country of origin Pl’s. Children for whom ACLU has not yet communicated parental intent for minor: • Children with voluntary departure orders awaiting execution • Children with parental intent to waive reunification documented by ORR 11 Pl’s. 0 Def’s. 9 Def’s. 26 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4772 Page 8 of 17 • Children whose parents ACLU has been in 2 contact with for 28 or more days without intent determined 1 2 3 4 5 6 7 8 9 10 11 12 PROCESS 4: Resolve Immigration Status of Minors to Allow Reunification Total children cleared Processes 1-3 with confirmed intent for reunification in country of origin • Children in ORR care with orders of voluntary departure • Children in ORR care w/o orders of voluntary departure o Children in ORR care whose immigration cases were dismissed Pl’s. 7 Pl’s. 1 Def’s. 6 Def’s. 4 Def’s. 13 14 C. Update Regarding Government’s Implementation of Agreement 15 • Number of orientation notices given: 70 families = 137 Ms.L/MMM individual class members • Number of class members who received orientation: 70 families = 137 Ms.L/MMM individual class members • Number of parents who received interviews: 62 • Number of CFI/RFI decisions issued by USCIS for parents: 57 • Number of children who received CFIs: 58 • Number of CF decisions issued by USCIS for children: 63 16 17 18 19 20 21 22 23 D. Update Regarding Travel Arrangements Defendants continue to coordinate with the ACLU Steering Committee 24 regarding travel information for children being reunified with their parents abroad. 25 ICE and HHS are coordinating with DOJ to provide the Steering Committee with 26 27 the most up-to-date information available in a timely manner. Defendants will 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4773 Page 9 of 17 1 continue to work to provide timely travel information and continue to invite 2 Plaintiffs’ counsel to confer with them about any concerns. 3 E. Information Sharing and Reporting on Removed Parents 4 The parties continue to work collaboratively on the sharing of data and 5 6 information requested by Plaintiffs. 7 II. 8 A. Steering Committee Progress 9 10 11 12 13 14 15 16 17 MS. L. PLAINTIFFS’ POSITION The Steering Committee has successfully contacted and confirmed the preferences of the vast majority of removed parents with respect to reunifications. The Government reported that, as of November 2, 145 children with removed parents remained in ORR custody. The Committee has delivered preferences for the parents of 128 3 of those children, and those children are awaiting either reunification with their parents or placement with sponsors in accordance with their parent’s submitted preferences. The status of the final 17 remaining cases are specified below, in Part I.B. 18 19 20 21 22 23 24 25 26 27 3 As discussed at the October 25 status conference, in this Joint Status Report Plaintiffs are reporting a set of detailed numbers based only on the Government’s most recent list of children in ORR custody with removed parents. Previously, Plaintiffs also reported a set of numbers based on the Government’s original lists of children in ORR custody with removed parents (originally numbering 414 children, and now 420, including those children of parents recently “re-categorized” as potential class members as explained by the Government in the October 25 Joint Status Report). Plaintiffs continue to work to confirm that the placement of the children who are no longer in ORR custody conforms with the deported parents’ wishes, and reserve the right to challenge and/or to seek more information regarding these placements. Using this 420 number, the Steering Committee has reported the preferences of a total of 298 parents who have been removed from the United States following separation from their children. 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4774 Page 10 of 17 1 Removed parents identified by the Government to the Steering 2 Committee by 11/3/18 145 3 • Removed parents identified by the Government by 10/20/18 140 4 • Removed parents newly identified by the Government on 5 5 6 7 8 9 10 11 12 13 14 15 10/26/18 Steering Committee called phone number for parent (using a 145 Government-provided number or a number otherwise obtained by the Steering Committee) • Parents successfully reached (by phone or through NGO 141 efforts) • Parents not reached (by phone or through NGO efforts) 4 o Contact efforts ongoing 3 o Cases that the Steering Committee and Government has 1 agreed should be set aside – see Section B below 16 Parents successfully reached (by phone or through NGO efforts) 141 17 • Parent’s final preference has been communicated to the 128 18 Government 19 20 o Parent has elected reunification in Country of Origin 8 21 o Parent has elected to waive reunification in Country of 120 22 Origin 23 • Parent’s final preference has not yet been communicated to the 24 Government, but the Steering Committee is actively seeking the 25 parent’s preference 9 26 27 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4775 Page 11 of 17 1 • Cases that the Steering Committee and Government has agreed should be set aside – see Section B below 2 3 4 4 B. The 17 Remaining Cases There are 17 parents, of the 145 parents in the Government’s November 2 5 list of children in ORR custody with removed parents, for whom the Steering 6 Committee has not yet submitted to the Government a final reunification 7 preference. 8 9 10 11 12 13 14 15 16 17 • Five are parents who were only recently identified to the Steering Committee on October 26. Efforts to obtain those parents’ preferences are underway and proceeding in the normal course. The Steering Committee has already been in touch with four of these five parents, and expects to be able to return preferences in the normal course. • Five are parents whom the Parties have agreed should be set aside because they involve complex and individualized circumstances that necessitate treatment outside of the Plan’s usual process.4 • Of the remaining seven cases, this group can be broken down as follows: o One is a parent who speaks a rare, indigenous language. After much 18 effort, the Steering Committee finally located a translator who speaks 19 this language and has obtained a preference from that parent. We are 20 in the process of confirming that preference with the child’s counsel, 21 and expect to return a preference shortly. 22 o One is a father who we have been unable to reach, although we have 23 been able to reach the child’s mother and the child’s attorney. We are 24 25 26 4 One of these is a parent with whom the Steering Committee has never been able 27 to speak; the other 4 are parents whom the Steering Committee has reached. 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4776 Page 12 of 17 1 currently discussing with the Government potential resolutions of this 2 case. o One is a parent who, after much effort, we were first able to speak 3 4 with a few days ago. He and his child are currently considering their 5 options, and we expect to be able to report a preference within a few 6 days. 7 o Two are parents who had left their country of origin and we were 8 unable to locate as a result. As a result of repeated searches of 9 government databases by the Committee, we determined recently that 10 both of these parents have returned to the United States and are in 11 Government custody. We are now in contact with these parents and 12 expect to discuss their options with them and the Government within 13 the next week. o One is a parent with whom we had an initial contact, but then were 14 15 unable to reach for many months. We have recently reestablished 16 contact through his separate counsel, and are awaiting return of that 17 preference from that counsel. 18 o One is a parent whose case has been delayed, but for whom we have a 19 preliminary preference that we expect to be confirmed within a few 20 days. 21 22 23 24 25 C. Information-Sharing 2. Coordinating Repatriations The Government has made efforts to provide more consistent advance notice to the Steering Committee regarding the timing of repatriations, and Commander White has been responsive to inquiries regarding particular cases. The Steering 26 27 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4777 Page 13 of 17 1 Committee continues to raise concerns about timely information for repatriations 2 as they arise with the Government’s counsel. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 3. Parents First Contacted 28 Days Or More Ago Beginning with the September 20 status report, the Government has been reporting the number of parents with whom the Steering Committee first made contact 28 days or more ago, and for whom the Government has not yet received the parent’s reunification preference. As discussed in Section B above, the Steering Committee and the Government have agreed that certain cases should be treated differently, and the Steering Committee and the Government have agreed that such cases will be removed from the list of parents with whom the Steering Committee first made contact 28 days ago, and for whom the Government has not yet received the parent’s reunification preference. Having set those cases aside, there are now only three parents with whom the Steering Committee first made contact 28 days ago, for whom the Government has not yet received the parent’s reunification preference, and for whom the Steering Committee anticipates delivering a final preference shortly. 4. Removals from Government Lists The Steering Committee continues to meet and confer with the Government to clarify the bases for which children and parents have been removed from the lists of class members or children in ORR custody previously produced by the Government, as reflected in each week’s Joint Status Report. The Steering Committee’s priority is to ensure that the parents’ and children’s interests are properly addressed and that no families are forgotten. 24 25 26 27 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4778 Page 14 of 17 MMM Counsel Position: Status of Settlement Implementation 1 2 3 4 5 6 7 8 9 10 11 12 A. Status of Families Detained at Dilley and Karnes All of the Dilley class member parents who elected to invoke the settlement procedures have received new interviews with the Asylum Office, per the settlement agreement. These interviews were complete as of October 26, 2018. At Karnes, 27 parent class members have completed their interviews as of this filing. 5 However, none of these class members at Karnes or Dilley have received the results of their interview. Credible fear and reasonable fear determinations are normally served by ICE within a few days of an interview. Moreover, the government’s last status report, filed on October 25, stated that USCIS had already “issued” 27 decisions with respect to the interviews completed at Dilley. See Dkt. 291 at 8. As noted, no such decisions have been served. On Monday, November 5, Plaintiffs’ counsel asked counsel for the government when class members could expect to receive the interview decisions. Counsel for the government indicated that he would check and get back to Plaintiffs’ counsel. As of this filing, the government has not provided any additional information. Any delay in implementing the results of these interviews would be inconsistent with the government’s commitment (and the Court’s mandate) to implement the agreement as expeditiously as possible. Accordingly, Plaintiffs respectfully request that the government be required to serve all interview decisions that have been reached by the Asylum Office. B. Ongoing Reporting 13 The Court previously stated that it wants the parties to provide ongoing reports with 14 respect to the implementation of the M.M.M./Dora/Ms. L settlement agreement. In the October 15 25, 2018 status report, Plaintiffs reported that “on October 23, Plaintiffs’ counsel sent the 16 17 18 19 20 21 22 23 government a list of proposed data points to track and report with respect to the implementation of the settlement agreement. The parties plan to meet and confer on this issue early next week.” Plaintiffs raised the reporting issue with the government during a call on November 5, 2018, explaining that the parties should at least agree on what information should be tracked and reported to the Court. However, the government has not committed to any such reporting. Accordingly, Plaintiffs request the Court’s guidance on what information the parties should report on an ongoing basis with respect implementation of the agreement. Plaintiffs request that, at this point, the parties report on the following: 6 • • • • • 24 Total estimated number of parent class members Total estimated number of children class members Total number of executed parent election forms provided to the government Total number of executed child election forms provided to the government Number of parent class members who have received new fear interviews o Number of parents whose negative CFI/RFI determination was reconsidered o Number of parents whose negative CFI/RFI determination was unchanged 25 5 At least three more are scheduled to take place this week. Plaintiffs reserve the right to request additional reporting in the future as the focus of 27 implementation shifts to class members who have been released. 26 6 28 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4779 Page 15 of 17 1 2 3 4 5 • • • • Number of child class members who have received fear interviews o Number of children who established a credible fear o Number of children determined not to have a credible fear Number of parent class members who affirmatively waived settlement procedures Number of child class members who affirmatively waived settlement procedures Number of parent and child class members who remain in detention after receiving interview decisions 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4780 Page 16 of 17 1 DATED: November 8, 2018 Respectfully submitted, 2 /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org 17 18 19 20 21 22 23 24 25 26 Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 27 28 15 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 311 Filed 11/08/18 PageID.4781 Page 17 of 17 1 2 3 4 5 JOSEPH H. HUNT Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director 6 7 8 9 10 11 12 13 14 15 16 17 18 19 /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel NICOLE MURLEY Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 20 21 22 23 24 25 26 27 28 16 18cv428 DMS MDD