Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5401 Page 1 of 24 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 360 Filed 02/20/19 PageID.5402 Page 2 of 24 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 2 3 MS. L, et al., Case No. 18cv428 DMS MDD 4 Petitioners-Plaintiffs, 5 JOINT STATUS REPORT 6 vs. 7 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 8 9 10 Respondents-Defendants. 11 12 The Court ordered the parties to file a joint status report on February 20, 2019, 13 14 in anticipation of the status conference scheduled at 3:00pm PST on February 21, 15 2019. The parties submit this joint status report in accordance with the Court’s 16 instruction. 17 DEFENDANTS’ POSITIONS 18 I. 19 A. Update on Reunifications 20 As of February 13, 2019, Defendants have discharged 2,735 of 2,816 possible 21 1 22 children of potential class members. See Table 1: Reunification Update. This is 23 24 1 As explained in the data table below and in prior status reports, Defendants have determined that some children originally counted in this number are not, in fact, 26 children of class members. Defendants continue to report this number to allow for 27 transparency in their data reporting, and to minimize confusion. 25 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5403 Page 3 of 24 1 an increase of 12 discharges reported in Table 1 since the Joint Status Report (JSR) 2 filed on February 6, 2019. All 12 children were discharged under other appropriate 3 circumstances, such as discharges to other appropriate sponsors or discharges of 4 5 minors who turned 18 years old. 6 7 There are now five children in ORR care proceeding towards reunification or other appropriate discharge. The current status of these five children is as follows: 8 9  One child has a parent who is in the United States, but who is 10 unavailable because the parent is in other federal, state, or local custody 11 (e.g., state criminal detention). Defendants are working to appropriately 12 13 discharge the child, and to identify any possible barriers to discharge, 14 meeting and conferring with Plaintiffs where appropriate for resolution. 15  Four children have parents presently departed from the United States. 16 17 The Steering Committee has not yet provided notice of parental intent 18 regarding reunification (or declination of reunification). Defendants are 19 supporting the efforts of the Steering Committee to obtain statements 20 21 of intent from those parents. Once Defendants receive the notices from 22 the Steering Committee, Defendants will either reunify the children or 23 24 move them into the TVPRA sponsorship process, consistent with the 25 intent of the parent. The Steering Committee has advised that resolution 26 on four of the five children will be delayed due to unique circumstances. 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5404 Page 4 of 24 The current reunification status for the 2,816 children ages 0 through 17 who 1 2 have been the focus of Defendants’ reporting to date is further summarized in Table 3 1 below. The data in Table 1 reflects approximate numbers on these children 4 5 maintained by ORR at least as of February 13, 2019. These numbers are dynamic 6 and continue to change as more reunifications, determinations on class membership, 7 and/or discharges occur. 2 8 Table 1: Reunification Update 9 10 Phase 1 (Under 5) Description 11 13 Total number of possible children of 107 potential class members Discharged Children 14 Total children discharged from ORR care: 12 • Children discharged by being reunified with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as situations where the child’s separated parent is not eligible for reunification] or children that turned 18) 15 16 17 18 19 20 21 106 Phase 2 (5 and above) 2709 2629 Total 2816 2735 82 2073 2155 24 556 580 22 23 24 2 Please note that ORR’s database experienced technical problems and was 25 inaccessible from approximately February 8, 2019 until February 12, 2019. Due to this outage, it is possible that additional reunifications took place since the last JSR, 26 but were not updated in the database in time for this report. The ORR database is 27 now functional again, and the next JSR will include all reunifications to date. 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5405 Page 5 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Children in ORR Care, Parent in Class Children in care where the parent is not eligible for reunification or is not available for discharge at this time: 0 0 • Parent presently outside the U.S. o Steering Committee has advised 0 that resolution will be delayed 0 • Parent presently inside the U.S. o Parent in other federal, state, or 0 local custody o Parent red flag case review 0 ongoing – safety and well being Children in ORR Care, Parent out of Class Children in care where further review shows they were not separated from parents by 1 DHS Children in care where a final determination has been made they cannot be reunified 0 because the parent is unfit or presents a danger to the child Children in care with parent presently departed from the United States whose intent 0 not to reunify has been confirmed by the ACLU Children in care with parent in the United States who has indicated an intent not to 0 reunify 5 5 4 4 3 3 1 1 1 1 0 0 13 14 18 18 39 39 5 5 Additional Information Regarding 149 Children Identified in the Previous JSR Table 1 incorporates discharge information relating to the 149 separated 20 21 children reported for the first time in the last two JSRs. See ECF Nos. 334 and 349. 22 These children were in ORR care on June 26, 2018, and were all discharged by 23 October 25, 2018. At the time of discharge: 24 • 64 children had potential class member parents who departed the United 25 26 States. Seven of these 64 children departed the United States with their 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5406 Page 6 of 24 1 2 3 separated parents. ORR discharged 57 children under other appropriate circumstances. At the request of the Steering Committee, ORR will provide the Steering Committee with the last known contact information for the 4 5 6 7 parents of these 57 children. • 73 children had potential class member parents in the United States. ORR reunified 10 of these 73 children with their separated children, and discharged 8 9 10 11 12 13 14 63 under other appropriate circumstances. • 11 children had parents who were determined to be excluded from the class due to criminality. However, one parent from this group was later reunified with his separated child. • 1 child was found not to have been separated from a parent. 15 16 On February 8, 2019, Defendants provided a spreadsheet to Plaintiffs 17 identifying these 149 children, and providing information available to Defendants 18 about the status of the children and their parents. Other than as noted above, 19 Defendants have not received any follow-up inquiries from Plaintiffs about this data. 20 21 22 B. Update on Removed Class Members The current reunification status of removed class members is set forth in Table 23 24 2 below. The data presented in this Table 2 reflects approximate numbers maintained 25 by ORR as of at least February 13, 2019. These numbers are dynamic and continue 26 to change as the reunification process moves forward. 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5407 Page 7 of 24 1 2 3 4 Table 2: Reunification of Removed Class Members REUNIFICATION REPORTING METRIC PROCESS STARTING Children in ORR care with POPULATION parents presently departed from the U.S. NO. REPORTING PARTY 43 Defs. 43 Defs. 43 Defs. 43 Defs. & Pls. 43 Defs. 40 Pls. 39 Pls. 1 Pls. 0 Pls. 3 Pls. 0 Defs. 0 Defs. 5 6 7 8 9 10 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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: • Children whose parents waived reunification • Children whose parents chose reunification in country of origin • Children proceeding outside the reunification plan 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 27 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5408 Page 8 of 24 reunification documented by ORR • Children whose parents ACLU has been in contact with for 28 or more days without intent determined 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 0 Pls. 1 Pls. 0 Defs. 1 Defs. 0 Defs. 15 16 Separately, Plaintiffs’ have requested that the government submit to Plaintiffs 17 and to the Court a “baseline” total number of removed parents. Counsel for 18 Defendants has spoken with counsel for Plaintiffs in an effort to better understand 19 what Plaintiffs are seeking in making this request, and following that discussion, 20 21 Defendants are now working with their data team to compile the number that they 22 understand Plaintiffs to be referring to in requesting a “baseline.” Defendants are 23 reviewing their records and expect to be able to calculate this number in time for the 24 25 next status report. Defendants note that since the preliminary injunction was issued 26 they have regularly updated the Steering Committee regarding the status of departed 27 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5409 Page 9 of 24 1 parents who have children remaining in ORR care, including updates and 2 explanations about why their calculation of that number has continued to change 3 over time. Defendants sent the last such update on February 8, 2019, and plan to 4 5 send another update later this week. 6 C. Update Regarding Government’s Implementation of Settlement Agreement 7 8 SETTLEMENT PROCESS Election Forms 3 9 10 11 12 13 14 15 DESCRIPTION NUMBER Total number of executed election forms received by the Government • Number who elect to receive settlement procedures • Number who waive settlement procedures 340 (217 Parents/123 Children)4 185 (119 Parents/66 Children) 155 (98 Parents/57 Children)5 16 17 18 19 20 3 The number of election forms reported here is the number received by the 21 Government as of February 13, 2019. 22 4 The number of children’s election forms is lower than the number of parent election forms because in many instances a parent electing settlement procedures submitted 23 an election form on his or her own behalf or opposing counsel e-mailed requesting 24 settlement implementation for the entire family, but no separate form was submitted on behalf of the child. 25 5 The number of children’s waivers is lower because some parents have submitted 26 waivers only for themselves and some parents who have waived reunification also 27 waived settlement procedures and have therefore not provided a form for the child. 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5410 Page 10 of 24 Interviews 1 2 3 4 5 6 7 Decisions 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Total number of class members who received interviews • Parents who received interviews • Children who received interviews Total number of CFI/RFI decisions issued for parents by USCIS • Number of parents determined to establish CF or RF upon review by USCIS • Number of parents whose CF or RF finding remains negative upon review by USCIS Total number of CFI decisions issued for children by USCIS 1376 71 66 63 7 63 8 0 73 9 6 Some individuals could not be interviewed because of rare languages; these individuals were placed in Section 240 proceedings. 7 This number is the aggregate of the number of parents whose negative CFI/RFI determinations were reconsidered, number of parents whose negative CFI/RFI determination was unchanged, and individuals who were referred to 240 proceedings without interview because of a rare language. This number excludes 12 cases where a parent already had an NTA from ICE or was already ordered removed by an IJ (which are included in the interview totals). 8 This number includes parents who received positive CF/RF determinations upon reconsideration, parents who received a Notice to Appear based on their child’s 25 positive CF determination, and parents who were placed in Section 240 proceedings 26 due to a rare language. 9 This number is the aggregate of the number of children who received a positive CF 27 24 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5411 Page 11 of 24 • Number of children determined to establish CF by USCIS • Number of children determined not to establish CF by USCIS 1 2 3 4 5 6 7 8 Removals 9 10 11 Number of class members who have been returned to their country of origin as a result of waiving the settlement procedures 73 10 0 95 Parents 11 12 D. Children Awaiting Placement. 13 14 On February 12, 2019, Plaintiffs provided Defendants a list of 22 children 15 16 who Plaintiffs believed were awaiting placement with a sponsor after their parent 17 waived reunification. On February 16, 2019, Defendants provided Plaintiffs with 18 information about each of these 22 children. In summary: 8 of those children have 19 20 been released to a sponsor; 5 have possible sponsors, but necessary information has 21 22 determination, the number of children who received a negative CF determination, and children who were referred to 240 proceedings without interview because of a 23 rare language. 24 10 27 11 This number includes children who received a positive CF determination, children who received a Notice to Appear as a dependent on their parent’s positive CF 25 determination, and children who were placed in Section 240 proceedings due to a 26 rare language. This number is as of February 9, 2019. 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5412 Page 12 of 24 1 not been submitted by those sponsors; 1 has a possible sponsor, but necessary 2 information has not been received from the consulate; 7 have no sponsor available; 3 and 1 child was discharged from ORR custody because he turned eighteen. 4 E. Government Processes, Procedures, and Tracking, for Separations Since June 26, 2018. 5 6 1. Data Requested by Plaintiffs 7 8 9 Defendants are providing Plaintiffs with a report containing information regarding families separated since the Court’s June 26, 2018 preliminary injunction 10 11 order. Defendants have identified 245 new separations of children and parents that 12 occurred between June 27, 2018 and January 31, 2019, and four cases which require 13 more time to assess. 12 Even counting these four cases as parent-child separations, 14 15 these (249) referrals account for approximately 0.78% of the 31,876 total referrals 16 ORR received over the same period. Further, of these 249 children, 62 are no longer 17 in ORR care. 18 Based on the information available to date, in the 245 identified separations 19 20 the parent was either excluded from the Ms. L class or was separated for a reason 21 consistent with the Court’s preliminary injunction. In some of these cases, the parent 22 23 24 12 Defendants have excluded from this count of 245 separations a situation in which 25 DHS encountered a UAC mother, adult father, and their UAC infant child, and in which the UAC mother and infant were both transferred to ORR together, while the 26 infant’s adult father was transferred to ICE custody. Defendants coordinated with 27 Plaintiffs’ counsel on the disposition of this case. 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5413 Page 13 of 24 1 has since become eligible for reunification with their child, and reunification is 2 proceeding under the Court’s procedures, as outlined in Table 3 below. 3 Table 3 below sets forth the number of new separations identified, the bases 4 5 for those separations, and the status of those children who have been discharged 6 from ORR care. Defendants note that the count presented here is accurate as of 7 February 20, 2019, and is based on information known to the Defendants as of that 8 9 date. This information is, in some cases, different than the information that was 10 known at the time of the actual separation. For instance, some of these 245 cases 11 reflect a situation in which CBP separated a child from an accompanying adult 12 13 because, based on the information available to CBP at the time of apprehension, and 14 in light of the short period of time in which CBP must make a processing 15 determination, CBP did not have information to indicate that the adult was the parent 16 17 or legal guardian of the child. However, since the time of apprehension, Defendants 18 have developed additional information that shows that the child was, in fact, 19 separated from his or her parent or legal guardian. As outlined below in Section 20 21 I.E.2, in that case DHS and ORR would work together to reunify that parent and 22 child under the expedited Ms. L reunification process. In light of changes in 23 information known to Defendants as well as factual circumstances regarding the 24 25 parent and child, any count of separations reflects only a snapshot in time, and is 26 subject to change based on changed or updated information. 27 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5414 Page 14 of 24 1 2 Table 3: New Separations 17 Description Total Total number of possible children separated from their parents and placed in ORR custody between 249 June 26, 2018 and February 5, 2019 245 • Separations verified by DHS and HHS 4 • Separations requiring additional review Basis for Separation • Parent criminality, prosecution, gang 225 affiliation, or other law enforcement purpose 17 • Parent health issues/hospitalization 3 • DHS unable to verify familial relationship Total number of children discharged from ORR care 62 (out of the 249 identified above): • Children discharged by being reunified 17 with separated parent • Children discharged under other appropriate circumstances (these include discharges to other sponsors [such as 45 situations where the child’s separated parent is not eligible for reunification] or children that turned 18) 18 2. Processes and Procedures 3 4 5 6 7 8 9 10 11 12 13 14 15 16 19 Defendants have met and conferred with counsel for class members as well as 20 21 counsel for separated children, and have considered all issues raised by counsel in 22 these discussions, as well as issues identified in the course of this litigation, in 23 developing the outline below. The below summary memorializes the processes, 24 25 procedures, tracking, and communication between the agencies that have been 26 adopted by the agencies since June 26, 2018, in accordance with the requirements of 27 28 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5415 Page 15 of 24 1 the Court’s preliminary injunction order. It also provides an outline of the options 2 for separated parents and children to obtain information and assess their options for 3 reunification. Defendants are willing to meet and confer with Plaintiffs as needed 4 5 regarding any remaining issues. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Outline of Processes and Procedures • DHS initiates separation based on a parent’s: 1) criminal history; 2) communicable disease; 3) unfitness or dangerousness (including hospitalizations); or 4) some other criteria that do not automatically exclude the parent from being treated as a Ms. L. class member at a later point in time (i.e., referral for criminal prosecution or as a material witness). o Understanding that initial separations must be made based on the information that is available at the time to those agents encountering an adult and child, DHS will, if appropriate, relay the basis for separation to the adult, or to the adult’s attorney, upon request. CBP will not generally provide reasons to the adult if doing so would create a risk to the child’s safety or would not otherwise be in the child’s best interests, and will not do so in situations in which CBP suspects fraud, smuggling, and/or trafficking. o DHS will communicate the basis for separation to HHS, and will, as soon as practicable, provide HHS with available and appropriate information about the reason for the separation (taking into account any restrictions on the sharing of such information). DHS and HHS have designated points of contact to assist HHS in obtaining information about the reasons for the separation. HHS will ensure that information about the separation is communicated to the field so that attorneys representing the children can obtain information about the separations from the FFS or case managers. o Where separation is based on 1) criminal history, 2) communicable disease, or 3) a determination of unfitness or dangerousness by DHS, HHS will accept the child and consider reunification under the processes discussed below (either expedited Ms. L procedures or procedures consistent with the TVPRA.). 26 27 28 14 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5416 Page 16 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23  Where separation is based on communicable disease or a determination of unfitness based on hospitalization, HHS will accept the child, and consider reunification under the processes discussed below, consistent with the TVPRA, while remaining cognizant that the parent may become available for reunification pursuant to the expedited Ms. L procedures during such period. If a parent completes medical treatment or the communicable disease is resolved while the parent remains in DHS custody, DHS will notify HHS as soon as practicable whether there is a continued basis for separation (either (1) criminal history, or (2) a determination of unfitness or dangerousness by DHS). HHS will notify DHS if it has determined that there is a basis for separation (including a determination of unfitness or dangerousness by HHS). If there is a continued basis for separation, the procedures discussed below will apply. If there is no continued basis for separation, and the child has not already been released consistent with the TVPRA, then DHS will work with HHS to facilitate reunification under the expedited Ms. L procedures.  Where the separation is based on a transfer to criminal custody for a criminal prosecution or as a material witness, but no other basis for separation has been identified, HHS will accept custody of the child during the course of that parent’s criminal custody. When the parent returns to DHS custody, DHS will notify HHS as soon as practicable whether there is a continued basis for separation (i.e., (1) criminal history, (2) communicable disease, or (3) a determination of unfitness or dangerousness by DHS). HHS will notify DHS if it has determined that there is a basis for separation including communicable disease or a determination of unfitness or dangerousness by HHS. If there is a continued basis for separation, the procedures discussed below will apply. If there is no continued basis for separation, then DHS will work with HHS to facilitate reunification under expedited Ms. L procedures. 24 25 26 27 28 15 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5417 Page 17 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 • For parents who are separated because of: 1) criminal history, 2) communicable disease, or 3) a determination of unfitness or dangerousness by DHS, DHS will make a detention determination for the parent. o If the adult is detained, then DHS will work with HHS to facilitate communication between the parent and child for as long as both the parent and child remain in DHS and HHS custody, respectively.  A parent who is separated on the basis of criminal history will be excluded from the class (the only exception to this would be if DHS receives information that the original criminal history determination was in error, in which case DHS should take steps to treat the parent as a Ms. L. class member and should work with HHS to facilitate reunification). HHS will work toward release of the child with a suitable sponsor consistent with the TVPRA. • If a parent in this category requests reunification for removal, DHS and HHS will consider such requests on a case by case basis, notwithstanding the fact that the parent remains excluded from the Ms. L. class.  A parent who is separated on the basis of having a communicable disease and who remains in DHS custody is excluded from the Ms. L. class and is not entitled to be reunified with their child so long as the medical condition remains in place, and HHS will work toward release of the child with a suitable sponsor consistent with the TVPRA. • If DHS becomes aware that the parent no longer has a communicable disease, then DHS will notify and work with HHS to reassess class membership and, if appropriate, facilitate reunification for children not yet released from HHS.  A parent who is separated on the basis of unfitness (including hospitalization) or dangerousness and who remains in DHS custody is not entitled to be reunified with their child so long as the factual basis for the original unfitness or dangerousness determination remains in place. • If DHS becomes aware that such factual basis no longer exists, then DHS will notify and work with HHS to reassess whether reunification is appropriate and, if appropriate, facilitate reunification. 28 16 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5418 Page 18 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 • If HHS becomes aware that the factual basis for the original unfitness or dangerousness determination no longer exists then HHS will notify and work with DHS to reassess whether reunification is appropriate and, if appropriate, facilitate reunification. • If a parent who remains in DHS custody was separated on the basis of unfitness or dangerousness, and DHS determines that the factual basis for the unfitness or dangerousness determination still exists, and the parent is subject to a final order of removal, DHS will determine whether the parent requests to be removed with his or her child. If the parent requests reunification for removal, DHS will notify HHS before the parent is removed. HHS will then determine whether the parent has any fitness or dangerousness issues that preclude reunification for removal. If HHS finds no fitness or dangerousness problem that precludes reunification for removal, then DHS and HHS will facilitate reunification for removal. o If DHS makes the decision not to detain an individual who was originally separated and excluded from the class for 1) criminal history, 2) communicable disease, or 3) a determination of unfitness or dangerousness by DHS (or if release of such an individual is ordered by an immigration judge), DHS will communicate this release determination to HHS and will work with HHS to provide information necessary for HHS to determine whether the parent has an issue that requires continued exclusion from the class or would require continued separation. If HHS concludes that no such issue requires continued separation or class exclusion, then, notwithstanding the fact that the parent is excluded from the Ms. L. class, HHS will facilitate reunification by, in its discretion, applying the expedited Ms. L. reunification procedures. Otherwise, the child will proceed towards release consistent with the TVPRA. 23 24 25 26 27 28 17 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5419 Page 19 of 24 1 II. MS. L. PLAINTIFFS’ POSITION 2 1. The Creation of a Centralized Database to Track Further Separations 3 The parties are meeting and conferring on how to addressing continuing 4 separations. Prior to the shutdown, Plaintiffs sent the government a set of 5 threshold requirements that an interagency database should meet. Plaintiffs have 6 asked to see a written proposal by government agencies so as to provide detailed 7 responses, informed by the views of stakeholders, including groups representing 8 immigrant children and families. As of Friday, February 15, the government stated 9 they are in the process of developing a written proposal; Plaintiffs have not yet 10 received it or had a chance to review it with stakeholders in order to provide 11 further input. 12 2. Information Regarding Parents Separated from Children After June 26 13 Plaintiffs have requested the government provide a list of parents separated 14 from their children after June 26 (the date of the PI Order), along with the reasons 15 why the family was separated in order to ensure this Court’s injunction is properly 16 implemented and assist the reunification of families where it is not. Plaintiffs 17 requested this information by e-mail to government’s counsel on Dec. 6, 2018, 18 raised the request in the February 6 JSR, and at the February 8 status hearing. The 19 government indicated it was putting the information together. 2/8/19 Tr. at 12. 20 Plaintiffs have not yet received the list. 21 C. Steering Committee Progress 22 The Steering Committee has successfully contacted and confirmed the 23 preferences of nearly all removed parents with respect to reunifications. On 24 February 8, the government reported that, as of February 2, 49 children with 25 removed parents remained in ORR custody. 13 The Committee has delivered 26 13 27 As discussed at the October 25 Status Conference, in this Joint Status Report 28 18 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5420 Page 20 of 24 1 preferences for the parents of 45 of those children, and those children are awaiting 2 either reunification with their parents or placement with sponsors in accordance 3 with their parents’ submitted preferences. For the remaining four children, the 4 parent of one is seeking to return to the United States under the Settlement 5 Agreement and the other three are cases where the Steering Committee has advised 6 the government that additional time will be required due to complex and 7 individualized circumstances. 8 The status of efforts based on the government’s January 28 list of 49 9 children in ORR custody with removed parents appears in the table immediately 10 below. 14 11 49 12 Removed parents identified by the government to the Steering Committee as of 2/2/2019 13 Parent’s final preference has been communicated to the government 45 15 14 • Parent has elected reunification in Country of Origin 0 15 • Parent has elected to waive reunification in Country of Origin 45 16 17 18 19 Total number of cases that the Steering Committee has indicated to the government should be set aside. Total number of cases where the parent seeks to return to the U.S. under the Settlement Agreement and has thus not yet made an election. 3 1 20 Plaintiffs are reporting a set of detailed numbers based only on the government’s 21 most recent list of children in ORR custody with removed parents. 22 23 14 26 15 This table is shortened from the version in past status reports. We have omitted a breakdown of the 49 removed parents that focuses on how many 24 separated parents have been contacted. All but two removed parents have been contacted, which is unchanged from the Feb. 6 status report. 25 As noted above, for one child, the Steering Committee has determined that, due to its inability to reach the removed parent, reporting the preference of the 27 non-removed parent is appropriate. 28 19 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5421 Page 21 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 1. Children Whose Parents Have Submitted Preferences Who Are Still Detained On February 12, the Steering Committee provided to the government information regarding 22 children who had been in ORR custody for at least five months following the submission of a final reunification election. The government provided detailed information regarding these children on February 16, which the Steering Committee appreciates. Eight of these 22 children have now been discharged to a sponsor; one child turned 18 and was transferred out of ORR care. The Steering Committee will continue to meet and confer with the Government regarding the remaining children. 2. Identifying the Population of Removed Parents At the November 30 Status Conference, the Court requested the parties to 14 agree upon a baseline of the total number of parents who were removed following 15 separation from their children, so as to provide the Court with a complete 16 accounting of the reunification process. Although the Steering Committee has 17 conferred with the government regarding how to calculate the baseline, the 18 government has not yet provided the proposed baseline to the Steering Committee. 19 With respect to the 149 additional separated children in ORR custody, 20 identified by the government in the December 12 Joint Status Report, the 21 Government has provided initial information to the ACLU and Steering 22 Committee, showing that 64 of these separated children have a parent that was 23 removed from the United States following separation. None of these children 24 remain in ORR custody; however the Steering Committee intends to contact these 25 parents to ensure that their reunification preferences have been satisfied and to 26 identify any parents whose cases counsel may raise with the government as 27 28 20 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5422 Page 22 of 24 1 warranting return to the United States to pursue asylum. The government has told 2 the Steering Committee that it will provide contact information for these families 3 later this week. 4 5 III. MMM-Dora Plaintiffs’ Report Regarding Settlement Implementation 6 7 8 The parties continue to work together to implement the settlement agreement approved on November 15, 2018. Counsel for Plaintiffs are providing the 9 10 government with signed waiver forms as they are received from class members 11 (detained and released). The parties are meeting and conferring on settlement 12 implementation issues as they arise. Since the last status report, the parties met 13 14 and conferred on a range of issues. The parties are working together to resolve the 15 discrepancy between the number of waiver forms submitted by class counsel and 16 the number of forms reported by the Government. The parties are also working 17 18 together to identify and resolve settlement issues for the remaining class members 19 who are still in detention but who have not submitted waiver forms. The parties 20 will alert the Court of any issues that require the Court’s guidance. 21 22 23 . 24 25 26 27 28 21 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5423 Page 23 of 24 1 DATED: February 20, 2019 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 22 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 360 Filed 02/20/19 PageID.5424 Page 24 of 24 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 23 18cv428 DMS MDD