Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5732 Page 1 of 18 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 382 Filed 03/06/19 PageID.5733 Page 2 of 18 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 March 6, 2019, in 13 14 anticipation of the status conference scheduled at 3:00pm PST on March 7, 2019. 15 The parties submit this joint status report in accordance with the Court’s instruction. 16 I. DEFENDANTS’ POSITIONS 17 A. Update on Reunifications 18 19 20 21 As of March 4, 2019, Defendants have discharged 2,741 of 2,816 possible children of potential class members. 1 See Table 1: Reunification Update. This is an 22 increase of six discharges reported in Table 1 since the Joint Status Report (JSR) 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 382 Filed 03/06/19 PageID.5734 Page 3 of 18 1 filed on February 20, 2019. See ECF No. 360. All six children were discharged under 2 other appropriate circumstances, such as discharges to appropriate sponsors or 3 discharges of minors who turned 18 years old. 4 5 There are now four children in ORR care proceeding towards reunification or 6 other appropriate discharge. The current status of these four children is as follows: 7  One child has a parent who is in the United States, but who is 8 9 unavailable because the parent is in other federal, state, or local 10 custody. Defendants are working to appropriately discharge the child, 11 and to identify any possible barriers to discharge, meeting and 12 13 14 15 conferring with Plaintiffs where appropriate for resolution.  Three children have parents who departed from the United States. The Steering Committee has not yet provided notice of parental intent 16 17 regarding reunification (or declination of reunification) for two of these 18 children. For the third child, the Steering Committee has advised 19 Defendants that it is unable to obtain the parent’s preference, and 20 21 regards this case as resolved for its purposes. Defendants are supporting 22 the efforts of the Steering Committee to obtain statements of intent from 23 24 25 the parents of the first two children. Once Defendants receive the notices from the Steering Committee, Defendants will either reunify the 26 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5735 Page 4 of 18 children or move them into the TVPRA sponsorship process, consistent 1 2 with the intent of the parent. 3 The current reunification status for the 2,816 children ages 0 through 17 who 4 5 have been the focus of Defendants’ reporting to date is further summarized in Table 6 1. The data in Table 1 reflects approximate numbers on these children maintained 7 by ORR at least as of March 4, 2019. These numbers are dynamic and continue to 8 9 change as more reunifications, determinations on class membership, or discharges 10 occur. 11 Table 1: Reunification Update 12 13 14 15 16 17 18 19 20 21 22 Phase 2 Phase 1 and Total (Under 5) (5 above) Description Total number of possible children of potential 107 class members Discharged Children 2709 2816 Total children discharged from ORR care: 106 2635 2741 82 2073 2155 24 562 586 • 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) 23 24 25 26 27 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5736 Page 5 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 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: 4 4 0 3 • Parent presently outside the U.S. o Steering Committee has advised that 0 2 resolution will be delayed o Steering Committee has advised that it 0 1 is unable to obtain parental preference 0 1 • Parent presently inside the U.S. o Parent in other federal, state, or local 0 1 custody o Parent red flag case review ongoing – 0 0 safety and well being Children in ORR Care, Parent out of Class Children in care where further review shows 1 12 they were not separated from parents by DHS 3 Children in care where a final determination has been made they cannot be reunified because the parent is unfit or presents a danger to the child Children in care with parent presently departed from the United States whose intent not to reunify has been confirmed by the ACLU Children in care with parent in the United States who has indicated an intent not to reunify 0 2 1 1 1 0 13 0 17 17 0 36 36 0 5 5 18 19 B. Update on Removed Class Members 20 21 The current reunification status of removed class members is set forth in Table 22 2 below. The data presented in this Table 2 reflects approximate numbers maintained 23 by ORR as of at least March 4, 2019. These numbers are dynamic and continue to 24 25 change as the reunification process moves forward. 26 27 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5737 Page 6 of 18 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 39 Defs. 39 Defs. 39 Defs. 39 Defs. & Pls. 39 Defs. 36 Pls. 36 Pls. 0 Pls. 0 Pls. 2 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 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5738 Page 7 of 18 reunification documented by ORR • Children whose parents ACLU has been in contact with for 28 or more days without intent determined Children for whom the Steering Committee is unable obtain parental preference 1 2 3 4 5 6 7 PROCESS 4: Resolve Immigration Status of Minors to Allow Reunification 8 9 10 11 12 13 14 15 16 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 Pls. 0 Defs. 0 Defs. 0 Defs. 17 As discussed in the last JSR, Plaintiffs have requested that the government 18 19 submit to them and to the Court a “baseline” number for removed parents. 20 Defendants understand the “baseline” number to refer to the total number of possible 21 22 class members who were removed from the United States without their children, and 23 without being given the opportunity to elect or waive reunification in accordance 24 with the preliminary injunction. Defendants have identified 471 such parents.2 25 26 2 27 This number represents all class members whose children are reported in Table 1 28 6 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5739 Page 8 of 18 1 Defendants reiterate that since the preliminary injunction was issued they have 2 regularly updated the Steering Committee regarding the status of departed parents 3 who have children remaining in ORR care, including updates and explanations about 4 5 why their calculation of that number has changed over time. Defendants sent the last 6 such update on February 21, 2019, and plan to send another update later this week. 7 C. Update Regarding Government’s Implementation of Settlement Agreement 8 9 Settlement Agreement Implementation 10 SETTLEMENT PROCESS Election Forms 3 11 12 13 14 15 DESCRIPTION NUMBER Total number of executed election forms received by the Government • Number who elect to receive settlement procedures 344 (220 Parents/124 Children)4 188 (121 Parents/67 Children) 16 17 18 19 (2,816 total) and who had departed the United States on or before June 26, 2018. 20 Any parents of separated children referred to ORR after June 26 would have been subject to the preliminary injunction, and thus had the opportunity to elect or waive 21 reunification. 22 3 The number of election forms reported here is the number received by the 23 Government as of March 2, 2019. 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 25 an election form on his or her own behalf or opposing counsel e-mailed requesting 26 settlement implementation for the entire family, but no separate form was submitted on behalf of the child. 27 24 28 7 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5740 Page 9 of 18 1 2 Interviews 3 4 5 6 7 8 Decisions 9 10 11 12 13 14 15 16 • Number who waive settlement procedures Total number of class members who received interviews • Parents who received interviews • Children who received interviews Total number of CF/RF 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 156 (99 Parents/57 Children)5 1386 72 66 65 7 65 8 0 5 The number of children’s waivers is lower because some parents have submitted 17 waivers only for themselves and some parents who have waived reunification also waived settlement procedures and have therefore not provided a form for the child. 18 6 Some individuals could not be interviewed because of rare languages; these 19 individuals were placed in Section 240 proceedings. 20 7 This number is the aggregate of the number of parents whose negative CF/RF 21 determinations were reconsidered, the number of parents whose negative CF/RF determination was unchanged, and the number of individuals who were referred to 22 Section 240 proceedings without interview because of a rare language. This number 23 excludes 12 cases where a parent already had a Notice to Appear from ICE or was already ordered removed by an IJ (which are included in the interview totals). 24 8 This number includes parents who received positive CF/RF determinations upon 25 reconsideration, parents who received a Notice to Appear based on their child’s 26 positive CF determination, and parents who were placed in Section 240 proceedings due to a rare language. 27 28 8 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5741 Page 10 of 18 1 2 3 4 5 6 7 8 9 10 11 Removals 12 13 14 finding remains negative upon review by USCIS Total number of CF decisions issued for children by USCIS • Number of children determined to establish CF by USCIS • Number of children determined not to establish CF by USCIS Number of class members who have been returned to their country of origin as a result of waiving the settlement procedures 73 9 73 10 0 94 11 15 Discrepancies in the Reported numbers of Settlement Election Forms 16 The parties have discussed Plaintiffs’ inquiries regarding the discrepancy in 17 18 the numbers of settlement election forms reported by the parties, and Defendants 19 20 21 9 24 10 27 11 This number is the aggregate of the number of children who received a positive CF 22 determination, the number of children who received a negative CF determination, and children who were referred to Section 240 proceedings without interview 23 because of a rare language. 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 March 2, 2019. 28 9 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5742 Page 11 of 18 1 have provided an explanation to Plaintiffs as to why they believe the discrepancy 2 exists. Plaintiffs stated that they would further review this issue and follow up with 3 the Government. Defendants continue to notify the Plaintiffs in any case where a 4 5 settlement election form is received for a non-class member. 6 7 D. Pending Motion Regarding Released Settlement Class Members In accordance with the Court’s February 22, 2019 order, on February 28, 8 9 Defendants provided counsel for Plaintiffs with a list of settlement class members 10 who may be subject to final removal orders. ECF No. 362 ¶ 1. Also in accordance 11 with that order, ICE has provided guidance advising its personnel that “class 12 13 members subject to the settlement agreement in this case may not be removed 14 without first providing them with notice of the settlement and an opportunity to 15 decide whether they wish to take advantage of the settlement procedures or waive 16 17 those procedures.” Id. ¶ 2. Counsel for Plaintiffs have informed counsel for 18 Defendants that they are reviewing the list that Defendants provided to them, and 19 that they intend to follow up with the government on this issue. Defendants will 20 21 continue to meet and confer with Plaintiffs on this issue as appropriate. 22 23 24 E. Children Awaiting Placement. On February 12, 2019, Plaintiffs provided Defendants a list of 22 children 25 who Plaintiffs believed were awaiting placement with a sponsor after their parent 26 waived reunification. On February 16, 2019, Defendants provided Plaintiffs with 27 28 10 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5743 Page 12 of 18 1 information about each of these 22 children. Plaintiffs have not submitted any 2 follow-up requests with regard to these children. 3 4 5 F. Government Processes, Procedures, and Tracking, for Separations Since June 26, 2018. 1. Data Requested by Plaintiffs 6 7 Defendants have provided Plaintiffs with a report containing information 8 regarding families separated since the Court’s June 26, 2018 preliminary-injunction 9 order. Defendants intend to provide updated reporting to Plaintiffs on a regular basis. 10 11 12 13 2. Processes and Procedures In the last joint status report, Defendants submitted a summary outline memorializing the processes, procedures, tracking, and communication between the 14 15 agencies that have been adopted by the agencies since June 26, 2018. The outline 16 also provided an overview of the options for separated parents and children to obtain 17 information and assess their options for reunification. Since the last joint status 18 19 report, as requested by the Court at the February 21, 2019 status conference, counsel 20 for Defendants has also reached out to representatives for the Bureau of Prisons and 21 the U.S. Marshals Service to ensure that those entities are included in further 22 23 discussions regarding these processes and procedures. 24 25 26 On March 4, 2019, Plaintiffs and lawyers for the children’s service providers sent comments and questions in response to the government’s proposals. Defendants 27 28 11 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5744 Page 13 of 18 1 are reviewing those comments and questions, and will continue to meet and confer 2 with Plaintiffs on these issues. 3 F. Additional Information Requests. 4 Plaintiffs have submitted numerous additional requests for information related 5 6 to various individual class members. Defendants have been working with Plaintiffs 7 to provide the requested information. 8 II. MS. L. PLAINTIFFS’ POSITION 9 10 1. 11 Centralized Database and Procedures and Standards to Govern Further Separations 12 The parties are meeting and conferring on how to addressing the continuing 13 separations. Plaintiffs are consulting with stakeholders, including legal service 14 providers for both parents and children. With their input, Plaintiffs have sent the 15 government initial responses to the outline included in the February 20 JSR. Information Regarding Parents Separated from Children After June 26 16 2. Plaintiffs have requested additional information and clarification from the 17 18 government regarding details of the post-June 26 separations. The parties are 19 meeting and conferring on this issue. 20 3. Steering Committee Progress 21 The Steering Committee has successfully contacted and confirmed the 22 preferences of nearly all removed parents with respect to reunifications. On 23 February 21, the government reported that, as of February 14, 43 children with 12 24 removed parents remained in ORR custody. The Committee has delivered 25 12 As discussed at the October 25 Status Conference, in this Joint Status Report 26 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. 27 28 12 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5745 Page 14 of 18 1 preferences for the parents of 40 of those children, and those children are awaiting 2 placement with sponsors in accordance with their parents’ submitted preferences. 3 The circumstances for the remaining three children are as follows: (i) one child’s 4 parent is seeking to return to the United States under the Settlement Agreement, 5 (ii) the Steering Committee has been continuing efforts to regain communication 6 with the parent of one child, and (iii) the Steering Committee has advised the 7 government that no parental preference will be forthcoming from the parent of one 8 child due to complex and individualized family circumstances. 9 The status of efforts based on the government’s February 14 list of 43 10 children in ORR custody with removed parents appears in the table immediately 11 below. 12 13 Removed parents identified by the government to the Steering Committee as of 2/14/2019 43 Parent’s final preference has been communicated to the government 40 13 14 15 • Parent has elected reunification in Country of Origin 0 17 • Parent has elected to waive reunification in Country of Origin 40 18 Total number of cases that the Steering Committee has indicated to the government should be set aside • No parental preference will be forthcoming due to complex and individualized family circumstances • Parent with whom the Steering Committee is continuing efforts to regain communication 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 2 16 19 20 21 22 23 24 1 1 1 25 26 13 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 13 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5746 Page 15 of 18 1 2 3 4 5 6 7 8 1. Children Whose Parents Have Submitted Preferences 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. Nine of these 22 children had been discharged to a sponsor as of February 14. The Steering Committee will continue to meet and confer with the Government regarding the remaining children. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2. Identifying the Population of Removed Parents At the November 30 Status Conference, the Court requested the parties to agree upon a baseline of the total number of parents who were removed following separation from their children, so as to provide the Court with a complete accounting of the reunification process. Although the Steering Committee has conferred with the government regarding how to calculate the baseline, the government has not yet provided the proposed baseline to the Steering Committee. With respect to the 149 additional separated children in ORR custody, identified by the government in the December 12 Joint Status Report, the information provided by the government to the ACLU and Steering Committee shows that 64 of these separated children have a parent who was removed from the United States following separation. The Steering Committee will continue to meet and confer with the government regarding this population and intends to contact these parents to ensure that their reunification preferences have been satisfied and their rights have been respected. 24 25 26 27 28 14 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5747 Page 16 of 18 1 III. MMM Plaintiffs’ Positions 2 3 On February 28, 2019, per the Court’s February 22, 2019 Order (ECF No. 4 362), the Government provided Dora and M.M.M. counsel with a list of class 5 6 members with removal orders, which includes individuals with either expedited 7 removal orders or final removal orders. The list was created as of September 24, 8 2018. Plaintiffs’ counsel are examining the list to determine how many of the 9 individuals on the list have provided signed settlement forms, and how many have 10 11 not. The next step will be determining the best way to identify persons on the list 12 with expedited removal orders. As the Court directed in its February 22 Order, 13 14 Plaintiffs’ counsel plan to meet and confer with the Government on this issue. 15 In addition, the parties continue to work together to implement the 16 17 settlement agreement approved on November 15, 2018. Counsel for Plaintiffs are 18 providing the government with signed waiver forms as they are received from 19 class members (detained and released). The parties are meeting and conferring 20 21 on settlement implementation issues as they arise. The parties are working 22 together to resolve the discrepancy between the number of waiver forms 23 submitted by class counsel and the number of forms reported by the 24 25 Government. The parties are also working together to identify and resolve 26 settlement issues for the small number of parents who are still in detention but 27 28 15 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5748 Page 17 of 18 1 who have not submitted waiver forms. The parties will alert the Court of any 2 issues that require the Court’s guidance. 3 4 DATED: March 6, 2019 Respectfully submitted, 5 /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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 27 28 16 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 382 Filed 03/06/19 PageID.5749 Page 18 of 18 1 Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 JOSEPH H. HUNT Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director /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 18 19 20 21 22 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 23 24 25 26 27 28 17 18cv428 DMS MDD