Case 2

423mbDocument 528
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ANDREA SHERIDAN 38235
STRUMWASSER W0 CHER LL
10940 WIlshIre Bouleyard Sum: 2000
Los Angeles, Cahforma 90024
Telephone: 310) 576?1233

FaCSImlle: _10 319?0156

E-mallz aordln strumwooch.com

Special Master Independent Monitor

JENNY LISETTE FLORES, et 621.,

V.

WILLIAM P. BARR, Attorney
General of the United States, et 01.,

Defendants.

 

 

 

Filed 03/06/19 Page 1 of 54 Page ID

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 85?4544

Plaintiffs, NOTICE OF FILING OF FIRST

REPORT OF THE SPECIAL MASTER

INDEPENDENT MONITOR

NOTICE OF FILING OF FIRST REPORT
OF THI: SPECIAL MONITOR

 

 

 

Case Document 528 Filed 03/06/19 Page 2 of 54 Page ID
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1 On October 5, 2018, the Court ordered the appointment of Andrea Sheridan
2 Ordin as Special Master/Independent Monitor (?Monitor?) and ordered the Monitor
3 to ?le formal Reports and Recommendations to the Court. In accordance with the
4 Court?s Order, the Monitor submits the attached First Report of the Special
5 Master/Independent Monitor for the Court?s consideration.
6
7
8 DATED: March 6, 2019 Respectfully Submitted,
9 Andrea Sheridan Ordin
10 STRUMWASSER LLP
11 1 
12 By
13 Andrea Sheridan Ordin
14 Special Master Independent Monitor
NOTICE OF FILING OF FIRST REPORT
01" THE SPECIAL MONITOR

 

 

 

Case 2:





 

Document 528 Filed 03/06/19 Page30f 54 PageID
#:25899

CERTIFICATE OF SERVICE
Case No. CV 85-4544

I am a citizen of the United States. My business address is 10940 Wilshire
Boulevard, Suite 2000, Los Angeles, California 90024. I am over the age of 18 years, and

not a party to the within action.

I hereby certify that on March 6, 2019, I electronically ?led the following
documents with the Clerk of the Court for the United States District Court, Eastern District
of California by using the system:

NOTICE OF FILING OF FIRST REPORT OF THE SPECIAL MASTER 
INDEPENDENT MONITOR.

I certify that all participants in the case are registered users and that service
will be accomplished by the system.

I declare under penalty of perjury under the laws of the United States the foregoing

is true and correct. Executed on March 6, 2019, at Los Angeles, Ca1)i<fo- 

    
   

7
W?izil/ . I 11%

Lauren S. Guerena

 

CERTIFICATE OF SERVICE

 

 

Case Document 528 Filed 03/06/19 Page 4 of 54 Page ID
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Attachment

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In the United States District Court 
Central District of California – Western Division 

JENNY LISETTE FLORES, et al., Plaintiffs, 
v. 

WILLIAM P. BARR, etc., et al., Defendants. 

Case No. CV 85‐4544‐DMG (AGRx) 

Hon. Dolly M. Gee, United States District Judge 

First Report and Recommendation 
Of the Special Master/Independent Monitor 

Andrea Sheridan Ordin 
Special Master/Independent Monitor 
Strumwasser & Woocher LLP 
1094 Wilshire Boulevard, Suite 2000 
Los Angeles, California 90024 
(310) 576‐1233

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TABLE OF CONTENTS 
1.

INTRODUCTION .................................................................................................................. 1 

2.

RELEVANT DUTIES OF THE MONITOR .................................................................... 3 

3.

FLORES SETTLEMENT AGREEMENT ......................................................................... 6

4.

ACTIVITY OF MONITOR OCTOBER 15, 2018 – JANUARY 31, 2019 .............. 9 

5.

DISCUSSION OF CLAIMS OF BREACHES ................................................................ 14 
A.

CBP Facilities ............................................................................................................. 14 
i.

Issues ............................................................................................................................ 14 

ii.

Monitor’s Investigation ..................................................................................... 14 

iii.

Deaths of two minors in December 2018 .................................................. 23 

B.

ICE Facilities .............................................................................................................. 30 
i.

Issues ............................................................................................................................ 30 

ii.

Monitor’s Investigation ..................................................................................... 31 

C.

6.

ORR Facilities ............................................................................................................ 36 
i.

Issues ............................................................................................................................ 36 

ii.

Monitor’s Investigation ..................................................................................... 37 

DISCUSSION OF WHETHER DEFENDANTS’ RESPONSES TO PLAINTIFFS’

DECLARATIONS HAVE REBUTTED PLAINTIFFS’ EVIDENCE ................................ 43 

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1. INTRODUCTION 
On October 5, 2018, this Court appointed Andrea Sheridan Ordin Special 
Master/Independent Monitor (“Monitor”) with her duties to commence on 
October 17, 2018. In 2017, the Court had previously appointed Henry A. 
Moak, Jr. from the U.S. Customs and Border Protection (“CBP”) and Deane 
Dougherty from Immigration and Customs Enforcement (“ICE”) to serve in 
the role of Juvenile Coordinator for their respective agencies. Based in part 
upon continuing conflicting information from the Parties, numerous 
declarations from class members and relatives indicating non‐compliance 
with the Court’s June 27, 2017 Order, and the additional finding that the 
Office of Refugee Resettlement (“ORR”) had also breached the Flores 
Settlement Agreement in multiple respects, the Court ruled: 
“Because of the complexity of the Flores Agreement, the Court’s finding 
of non‐compliance, and ongoing  disputes between the Parties relating 
to the implementation of the Flores Agreement, the Court finds that the 
appointment of a Special Master and Independent Monitor is 
warranted.” 
At the Status Conference on October 15, 2018 designed to introduce the 
Parties and the Monitor, the Court expressed appreciation for the 
contributions of the Juvenile Coordinators and their continued participation, 
 

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and then left the bench to allow Counsel for the Parties, the Juvenile 
Coordinators, and the Monitor to discuss among themselves their respective 
approaches in the coming year in order to comply with the Judge’s Orders.  
The 2017 Order alone cites more than 15 categories of breaches primarily 
directed to facilities within the jurisdiction of CBP and ICE.  The 2018 Order 
focuses on breaches in three general categories in facilities primarily under 
the jurisdiction of ORR: (1) placing class members in residential treatment 
centers, staff‐secure facilities, and secure facilities; (2) administering 
psychotropic drugs to class members without a court order or the informed 
consent of an authorized person under state law focusing specifically on the 
Residential Treatment Center known as Shiloh; and (3) unnecessarily 
prolonging class members’ detention in ORR facilities. 
This first Report principally describes the issues being addressed, the tours of 
facilities intended to familiarize the Monitor with conditions in the Rio 
Grande Valley (“RGV") sector, and the Monitor’s preliminary observations 
while touring the facilities and questioning staff and detained minors.  In the 
second Report and Recommendations, the Monitor expects to analyze the 
government internal data documenting compliance or non‐compliance with 
the Court’s orders. Subsequent Reports also will detail results of interviews 
with class members, government staff and experts. In the subsequent Reports 

 

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and Recommendations, the Monitor expects to be able to draw definitive 
conclusions and to offer concrete recommendations. 

2. RELEVANT DUTIES OF THE MONITOR 
The entirety of the Order places significant responsibilities on the Monitor, 
including but not limited to: 
 Monitor compliance with the Court’s June 27, 2017 and July 30, 2018 
Orders, and other Court orders issued during the Term (“the Court’s 
Orders”); 
 Meet with the Parties and their counsel and receive and/or hear 
evidence and legal arguments on issues pertaining to compliance with 
the Court’s Orders; 
 Make findings of fact and prepare formal Reports and 
Recommendations to the Court regarding achievement of the goals of 
monitoring and substantial compliance with the Court’s Orders; 
 Conduct such investigation, interviews, and site visits as are necessary 
to achieve the goals of monitoring or aid in the preparation of Reports 
and Recommendations; 
 Direct the Parties to produce such information or documents as the 
Monitor deems relevant to achieve the goals of monitoring or to 
prepare Reports and Recommendations; 
 

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 Resolve such disputes as may arise between the Parties regarding the 
implementation of the Court’s Orders, including this Order; 
 Preside over and facilitate mediations and/or settlement negotiations 
between the Parties as to any issues pertaining to the implementation 
of the Court’s Orders; and 
 Advise and update the Court on the status of Defendants’ compliance 
with the Court’s Orders. 

In addition to the Court’s broad general instructions above, Paragraph D (1) 
(a) contains a specific requirement to evaluate the competing evidentiary 
claims of the Parties in their opposing papers preceding appointment of the 
Monitor. That evaluation is set out beginning at page 40.  
The Court further contemplated that during the course of the Monitor’s work, 
additional, unenumerated matters might arise. The Court specifically 
instructed that:  “During the course of her monitoring duties, if the Monitor 
discovers potential breaches of the Flores Agreement that are beyond the 
scope of the June 27, 2017, July 27, 2018, or July 30, 2018 Orders, she shall 
bring them to the Court’s and the Parties’ attention.” 
Two such unenumerated items arose in the course of the current period:  

 

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 The Tornillo temporary emergency facility for unaccompanied alien 
children (“UAC”) was reported in national and local media to have 
violated the Flores orders in several aspects. Announcements of closure 
of Tornillo, and the eventual closure, led to the Monitor cancelling a 
planned visit to that facility, and no remedial measures will now be 
recommended specifically for that facility. Evidence of past practices 
and events at Tornillo will, of course, be fully taken into account as 
relevant. 
 In December, two children died in CBP custody, again raising concerns 
about possible violations of the Flores Agreement. As contemplated in 
the Court’s orders, the Monitor is bringing to the attention of the Court 
and the Parties the publicly‐available facts and pending actions by CBP 
in regard to the two deaths. 
The Order contemplates regular Reports and Recommendations to the Court, 
with the first Report due in draft to the Parties one month before the Final 
Report is filed with the Court.  By agreement among the Parties, Court, and 
Monitor, the first Report is due to the Court on March 6, 2019. 
As also contemplated by the Order, the Monitor received detailed written 
comments during the week of February 18, 2019, from counsel for the 
Plaintiffs, counsel for Defendants, CPB, ICE and ORR, as well as the Juvenile 
 

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Coordinators1 for CPB and ICE. The comments received were helpful and 
many of suggestions have been incorporated or addressed in this First 
Report.  

3. FLORES SETTLEMENT AGREEMENT 
The Court and the Parties are well aware of the provisions of the Agreement. 
The Settlement Agreement in Flores v. Reno, CV 85‐4544‐RJK (Px), was filed in 
l997 after the litigation had been pending for nine years and had been heard 
by the United States Supreme Court.  See Reno v. Flores (1993) 507 U.S. 292, 
113 S. Ct. 1439, 123 L.Ed.2d 1. The Settlement Agreement is 23 pages, and 
attaches Exhibits, including Instructions to Services Officers re: Processing, 
Treatment and Placement of Minors. These provisions in this contract 
between the INS and class members have resulted in scores of legal disputes 
and the filing of tens of thousands of pages in multiple federal cases. The core 
provisions, which over the years have been incorporated in one form or 
another in policy memoranda first by the then Immigration and 
Naturalization Service, and now by the Department of Homeland Security 

                                                   

1 During the period of this Report, a new Juvenile Coordinator has been 

appointed for ORR and the Monitor will be conducting joint tours and 
interviews with the Juvenile Coordinator in March, at Homestead, Florida. 
 

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(“DHS”) and Department of Health and Human Services (“HHS”)2, Office of 
Refugee Resettlement, include: 
 The INS shall place each detained minor in the least restrictive setting 
appropriate to the minor’s age and special needs, provided that such 
setting is consistent with its interest to ensure the minor’s timely 
appearance before the INS and the immigration courts and to protect 
the minor’s well‐being and that of others.  
 
 Whenever the INS takes a minor into custody, it shall expeditiously 
process the minor and shall hold minors in facilities that are safe and 
sanitary and that are consistent with the INS’s concern for the 
particular vulnerability of minors. Facilities will provide access to 
toilets and sinks, drinking water and food as appropriate, medical 
assistance if the minor is in need of emergency services, adequate 
temperature control and ventilation, adequate supervision to protect 
minors from others, and contact with family members who were 
arrested with the minor. In the event of an emergency or influx of 

                                                   
2 Responsibilities of the former Immigration and Naturalization Service were 
transitioned to DHS and HHS by the Homeland Security Act of 2002, Pub.L. 
107–296, 116 Stat. 2135. 
 

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minors into the United States, the INS shall place all minors pursuant to 
Paragraph 19 as expeditiously as possible. 
 
 The INS shall place each detained minor in the least restrictive setting 
appropriate to the minor’s age and special needs. Nothing requires INS 
to release a minor to any person or agency whom the INS has reason to 
believe may harm or neglect the minor or fail to present him or her 
before the INS or the immigration courts when requested to do so. See 
8 USC §1232(c)(3)(A). 
 
 Where the INS determines that the detention of the minor is not 
required either to secure his or her timely appearance before the INS 
or the immigration court, or to ensure the minor’s safety3 or that of 
others, the INS shall release a minor from its custody without 
unnecessary delay, in the following order of preference, to: 
o A parent; 
o A legal guardian; 
o An adult relative (brother, sister, aunt, uncle, or grandparent); 
an adult individual or entity designated by the parent or legal 
                                                   

3 See ¶17, which outlines the possibility of performing a suitability 

assessment, including the wishes and concerns of the minor. 
 

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guardian as capable and willing to care for the minor's well‐
being in (i) a declaration signed under penalty of perjury before 
an immigration or consular officer or (ii) such other 
document(s) that establish(es) to the satisfaction of the INS, in 
its discretion, the affiant's paternity or guardianship; 
o A licensed program willing to accept legal custody; or 
o An adult individual or entity seeking custody, in the discretion of 
the INS, when it appears that there is no other likely alternative 
to long term detention and family reunification does not appear 
to be a reasonable possibility. 

4. ACTIVITY OF MONITOR OCTOBER 15, 2018 – JANUARY 31, 
2019 
After the October 17, 2018, effective date of appointment, the Monitor 
focused initially on investigating and mediating disputes relating to 
Defendants’ compliance or non‐compliance with the June 27, 2017 Order Re 
Plaintiffs’ Motion to Enforce and Appoint a Special Monitor [Doc. #363] and 
July 30, 2018 Order re Plaintiffs’ Motion to Enforce Class Action Settlement 
[Doc. #470].  
In order to understand more fully the context of many disputes continuing 
over enforcement of the provisions of the two referenced Orders and the 
 

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Flores Agreement, the Monitor undertook a variety of visits to facilities under 
the jurisdiction of CBP in the Rio Grande Valley.  The Monitor also visited 
certain ORR and ICE facilities in Texas outside of the Rio Grande Valley.  
October 30, 2018:   Tour with counsel for the Parties and presentations 
by CBP personnel at McAllen Border Patrol Station and Processing 
Center (“CPC Ursula”), conversations with Consulate of Guatemala 
representatives on‐site, and observation of CBP enforcement activities 
at the border. The Monitor, with lawyers for Plaintiffs and Defendants, 
accompanied CBP officers on patrol, and accompanied the officers as 
they apprehended family units who presented themselves at the United 
States‐Mexico Border. 
November 26, 27, 28, 2018: Tours and interviews with counsel for the 
Parties at ICE Karnes County Family Residential Center, located in 
Karnes County, Texas, and South Texas Family Residential Center, 
located in Dilley, Texas. 
December 4, 2018: First Tour and interviews at Shiloh Residential 
Treatment Center in Manvel, Texas, with counsel for the Parties and 
Plaintiffs’ expert psychiatrist, Dr. Amy Cohen. 
December 5, 2018: Tour of Catholic Charities Houston Shelter and 
Southwest Key Casa Montezuma. 
 

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January 14, 15, 2019: Second Tour of Shiloh, to moderate mediation 
meeting among Drs. Luis Valdes, Javier Ruiz, and Amy Cohen, and 
interviews and review of patient files. 
January 21, 22, 2019: Unannounced inspection of the McAllen Border 
Patrol Station and CPC Ursula with Border Patrol Juvenile Coordinator 
Henry A. Moak, Jr. and his team. 
In addition, the Monitor reviewed CBP, ICE, and ORR data documenting their 
management of the various facilities, including: 
 McAllen Border Patrol Station, CPC Ursula, patrol locations for 
apprehension of immigrant aliens 
 Shiloh Residential Treatment Center 
 Shelters in Houston, including Catholic Charities Houston Shelter, 
Southwest Key Casa Montezuma 
 Residential Family Center, Dilley 
 Residential Family Center, Karnes 
In connection with her review of CBP data, the Monitor met with a 
representative of CBP for a day‐long review of the practices and procedures 
for acquisition, management, and reporting of the data maintained in the 
e3DM system maintained by CBP to track detainees. Separately, the Monitor 

 

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reviewed materials regarding the data portal employed by ORR and observed 
its usage by ORR personnel. 
The Monitor also reviewed multiple letters from Plaintiffs’ counsel addressing 
alleged potential breaches and new issues and reviewed Defendants’ 
counsel’s responses.  Specifically, the Monitor has reviewed Plaintiffs’ 
January 7, 2019, letter outlining categories of documents deemed essential to 
determining compliance. The Monitor has received multiple CBP, ICE, and 
ORR documents required by the Order Appointing the Monitor and will 
provide analysis of those documents and documents to be received in future 
reports. 
The Monitor continued her research, which included:   
 More than 200 declarations filed by the Parties in 2017 and 
2018. 
 Literature on medical treatment of minors, including literature 
provided by the American Academy of Pediatrics. 
 Texas law and regulations relating to children in confinement, 
and requirements for administering medical treatment and 
medication. 
 Relevant federal district court and Ninth Circuit cases related to 
the detention of UAC’s and family units. 
 

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 Office of Refugee Resettlement Policies: Children Entering the 
United States Unaccompanied. 
 Conditions at Tornillo. 
Given the scope of the Monitor’s responsibilities over the year of 
monitoring, there are significant powers and duties that the Monitor 
has not yet addressed or exercised.  With the exception of the Monitor’s 
involvement in mediating the critical disagreements over the 
prescribing of psychotropic drugs at Shiloh, the Monitor has not yet 
met with the Parties and their counsel to receive and/or hear evidence 
and legal arguments on issues pertaining to compliance with the 
Court’s orders.   
It is the Monitor’s hope that as the Monitor develops sufficient data and 
other firsthand accounts from detainees and others related to 
compliance, the Parties will be able to effectively utilize the Dispute 
Resolution process contemplated by the Order Appointing the Monitor. 

 

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5. DISCUSSION OF CLAIMS OF BREACHES  
A. CBP Facilities 
i.

Issues 

Relying on the Court’s June 27, 2017 Order Re Plaintiffs’ Motion to Enforce 
and Appoint a Special Monitor [Doc. # 363], the Monitor focused first on four 
categories of allegations with respect to CBP: access to food, safe and sanitary 
conditions, ambient temperature (cold temperatures), and sleeping 
conditions. The Monitor did not focus, for this Report, on advisal of rights 
when minor was in CBP custody. 
ii.

Monitor’s Investigation 
(1) First Site Visit to McAllen Border Patrol Station  

On October 31, 2018, the Monitor, accompanied by counsel for Plaintiffs and 
Defendants, and the CBP Juvenile Monitor, toured both the McAllen Border 
Patrol Station (“MCS”) and CPC Ursula during the morning.  The MCS was 
observed to be severely overcrowded. 
The RGV Sector Detention Dashboard is an internal report created for 
leadership, which documents the numbers of adult and juvenile detainees in 
each of the facilities on a daily basis.

 

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Census for MCS  
The Monitor reviewed the Dashboard for October 31, 2018, the day of the 
tour. The Dashboard reflects that there were 302 juveniles in custody yet to 
be processed in cells and 346 adults in custody, for a total of 648 juveniles 
and adults in MCS.  The design capacity for the total cells in MCS is 320, and 
the largest individual cell capacity is 46. One of the cells was observed to have 
approximately 60 mothers and children. 
The Dashboard documents an average time in custody for that day as 16 
hours, but does not differentiate between adult and juvenile detention times 
in the facility.   The Dashboard does report how many detainees (again 
without differentiation of juveniles) were kept at the facility more than 72 
hours.   None were reported. 
The Monitor also reviewed the Dashboard for MCS for October 30, 2018, 
which documented a total of 496 detainees, including 240 juveniles, and the 
Dashboard for November 1, 2018, which documented 605 detainees, 
including 220 juveniles.  The average reported time in custody for October 30, 
2018 was 13 hours and the average reported time in custody for November 1, 

Redacted Pursuant to Protective Order   

 

 

 

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2018 was 20 hours. The Dashboard reports that one detainee was in custody 
for more than 20 hours on October 30, 2018, and none on November 1, 2018.4 
Safe, Sanitary Conditions, Access to Food 
The cells, each bounded by concrete walls, were originally constructed for 
adult male detainees and contain no furnishings except for benches to sit on. 
Each cell has one or more toilets, at least one sink, and access to water. The 
Monitor did not walk into the cells, but observed that due to the crowded 
conditions, the cells did not provide adequate privacy for personal hygiene or 
use of toilets. 
The Monitor observed the distribution of snacks and provision of water. At 
this initial tour, no measurement was made of ambient temperature in the 
cells, but the Monitor did observe that the common areas were cold and that 
the minors in detention cells appeared to be uncomfortably cold and wrapped 
themselves in single mylar blankets while sitting, standing, or lying on the 
concrete floor. During this limited tour, floors and walls appeared to be clean 
and swept. The Monitor observed that many minors were lying on the floor 
                                                   
4 The Monitor has noted that the e3DM Dashboard printouts that have thus 
far been provided (and other reports provided by ORR and ICE) usually show 
means (average days), occasionally medians (50th percentile), and 
occasionally a report of more extreme values. The data provided are useful 
but not fully sufficient for the present purposes, and the Monitor will be 
addressing additional data requirements for future reports. 
 
 

 

 

 

 

 

 

 

 

 

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wrapped in the mylar blankets and appeared to be sleeping at mid‐day. There 
are no floor mats provided for sleeping at this facility.  
(2) First site visit to Rio Grande Valley Centralized Processing 
Center 
The CPC Ursula is designed to accommodate large numbers of adults and 
minors, both accompanied and unaccompanied. The design capacity for CPC 
Ursula, built in 2014, is 1,203 individuals. The large open space is divided into 
pods surrounded by chain link fences on all four sides. 
The Monitor observed CPC Ursula in the morning and returned in the evening 
of October 31, 2018. In the morning, CPC Ursula appeared overcrowded, but 
returning in the evening, the Monitor observed that the numbers of juveniles 
had decreased dramatically. The Dashboard for October 31 documents a total 
of 1,311 detainees, including 369 juveniles. The average time in custody (not 
differentiated between adults and juveniles) was 71 hours, and 544 detainees 
were in custody for more than 72 hours, 767 were in custody for less than 72 
hours. 
The CPC Ursula felt warmer than MCS in the morning but appeared still to be 
uncomfortable for the detainees. In the evening, the Monitor interviewed a 
group of juvenile girls who were awaiting transfer to ORR. Some of the girls 

 
Redacted Pursuant to Protective Order   

 

 

 

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said that they were cold, but one girl said she was less uncomfortable than 
she had been at MCS.  
The Monitor observed that evening approximately 50 minors standing in line 
for crackers and an apple after the evening meal. The Monitor spoke to a 
group of juvenile boys, who were also awaiting transfer to ORR. When asked 
about their previous meal, two expressed appreciation and three others 
responded that they were still hungry. They were reminded by one of the 
touring officials that they could have snacks, and one of the boys said he was 
aware of that. Each boy was asked how long he had been in CPC Ursula. Most 
said one to two days, but one boy said he had been there for at least a week.  
(3) Second Site Visit to McAllen Border Patrol Station and CPC 
Ursula5 
On January 21, 2019, the Monitor, accompanied by the CBP Juvenile 
Coordinator, made an unannounced evening visit to MCS. Juvenile 
Coordinator Moak was accompanied by a team of three contractors who 
assisted him with inspecting the amenities and compliance. Arriving at the 
facility at approximately 8:30 P.M., the group was left standing outside for 
                                                   
5 The Monitor notes that this visit took place during the December 22, 2018‐
January 25, 2019 government shutdown. We were told that supervising 
personnel had been required to purchase food and other necessities for the 
detainees in the absence of personnel and contractors who had been 
furloughed. 
 
 

 

 

 

 

 

 

 

 

 

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more than 15 minutes while the personnel inside verified the group’s 
identity. Listed below are some of the impressions and data collected by both 
the Monitor and the Juvenile Coordinator’s team on both the evening of 
January 21, 2019, at MCS and mid‐morning and afternoon of January 22, 
2019, at CBP Ursula.  
Temperatures of a reasonably comfortable range  
The low temperature was still the most consistent complaint at MCS. CBP 
policy specifies an acceptable temperature range of 66 to 80 degrees 
Fahrenheit. The Juvenile Coordinator used on‐site measuring equipment and 
got readings in the six cells containing juveniles of 64.7 to 69.8 degrees; the 
room with the 64.7 reading was the only one below the 66‐degree minimum 
of the CBP standards. To the Monitor, wearing a turtle neck top, jacket, and 
slacks, the temperature was below a comfortable level, although within the 
66‐80 minimum and maximum of CBP standards.   
Safe and Sanitatary Conditions 
All cells at McAllen Border Station had functioning toilets. Five of the six sinks 
were functioning well, and one was functioning poorly. All sinks were without 
soap. All cells were observed to be clean and pest‐free. Cups were available 
for drinking. 

 
 

 

 

 

 

 

 

 

 

 

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Access to food 
On January 22, 2019, the Monitor and the Juvenile Coordinator arrived at CPC 
Ursula and observed delivery and distribution of food, which is prepared off‐
site by contractors. A meal is typically a burrito with a fruit or a bologna 
sandwich with juice.  The minors are asked to exit cells, and line up outside 
the cell to receive food and to be counted for attendance. The food appeared 
to be the same amount and variety for adults and boys and girls. For the next 
Report, the Monitor will report more fully on the adequacy and access to food. 
The Monitor also examined the food in the refrigerator at CPC Ursula, which 
appeared to be fully stocked and organized by date to facilitate distribution 
before expiration. 
Also on January 22, 2019, the Monitor observed the Juvenile Coordinator and 
his team conducting interviews with two mothers with their minor children 
at CPC Ursula and a group of unaccompanied juvenile males.  The interviews 
covered the Flores standards in detail, and detailed notes of the team will be 
included in full in the Juvenile Coordinator’s report.  The ICE Transport 
Program manager was on site and assisted with translation of the interviews. 
The Monitor elicited comments on various issues. One mother stated that her 
children had been offered three meals a day and snacks, but one of her 
children will not eat the food and spits up the milk. Two unaccompanied male 
 
 

 

 

 

 

 

 

 

 

 

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juveniles who were interviewed complained about the burritos for breakfast 
and said that they were still hungry. The Monitor explained that snacks were 
available, which they acknowledged.  
Hygiene 
In summary, except for one adult, the interviewees at CPC Ursula all related 
that they had showered and were wearing either their own clean clothes or 
clean clothes they had been given.  
Sleeping Conditions 
All interviewees had received a mat and mylar blanket upon arrival at CPC 
Ursula. The lights are on at CPC Ursula all 24 hours, but the mothers 
interviewed said their children were able to sleep during the night hours at 
CPC Ursula. In a separate interview, an older unaccompanied juvenile male 
said he had not slept much since his arrival. When asked about the officers 
checking on their well‐being, one of the juvenile males said that he was kicked 
in the leg by someone he called “an officer” to wake him up. The Juvenile 
Coordinator reported the allegation to a supervising Border Patrol officer. 
Access to Medical Treatment 
The Monitor met on January 21, 2019, with medical personnel who were on 
duty at MCS and reviewed the current policy for medical assessment and 
 
 

 

 

 

 

 

 

 

 

 

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treatment of the minors. The medical personnel included an EMT and a 
nursing staff member. Such personnel are on duty 24 hours, seven days a 
week. All minors have an initial screening when they first arrive at the 
station. The nurse practitioner explained the new policy, issued by 
Commissioner Kevin McAleenan in December 2018, which requires a second 
medical assessment when the minors arrive at CPC Ursula. The nurse 
practitioner also explained the use and availability of nearby hospitals and 
urgent care clinics. The Monitor also reviewed with the staff the prescription 
policy. On January 22, 2019, the Juvenile Coordinator and the Monitor 
observed the office of the CPC Ursula medical personnel who were seeing 
detainees, but did not then conduct interviews.  
Census for MCS 
The Dashboard for MCS indicates 294 detainees in custody, including 74 
juveniles, on January 21, 2019. On January 22, the Dashboard indicates 225 
detainees in custody, including 32 juveniles. The average time in custody was 
24 hours on January 21 and 32 hours on January 22.  
Census for CPC Ursula 
The Dashboard for CPC Ursula for January 22, 2019, indicates a total of 1,569 
detainees, including 655 juveniles. The average time in custody for all 
detainees was 65 hours. The Dashboard also indicates that 847 detainees 
 
 

 

 

 

 

 

 

 

 

 

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were in custody less than 72 hours, and 722 detainees were in custody more 
than 72 hours. 
iii.

Deaths of two minors in December 2018 

Upon receipt of the press reports of the December 2018 deaths of two minors 
in CBP custody, the Monitor collected the publicly available information from 
CBP, which is related below. The Monitor is advised that the Department of 
Homeland Security, Office of the Inspector General (“DHS 016”) opened an 
investigation on December 24, 2018. As noted on page 22, the Monitor is also 
advised that the Commissioner of CBP has revised medical screening 
procedures in order to add a second medical assessment of each arriving 
minor. 
The Monitor will await further instructions from the Court, if any, before any 
additional inquiries are made. 
 
(1) Jakelin Caal Maquin 
Information made available by CBP: 
 On December 6, 2018 at 9:15 P.M., a seven‐year‐old female child from 
Guatemala was apprehended with her father approximately a half mile 
west of the Antelope Wells Port of Entry at the Bounds Forward 
 
 

 

 

 

 

 

 

 

 

 

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Operating Base (“Bounds FOB”). There were four Border Patrol Agents 
on scene at the time. 
 
 Upon apprehension, the Border Patrol Agent conducted an initial 
screening, which consists of an interview and observation of the 
detainee to identify any health or safety problems to ensure that they 
receive necessary medical care. The initial screening revealed no 
evidence of health issues.  
 
 She and her father were held inside the Sally Port of the Antelope Wells 
Port of Entry and had access to food, water and restrooms, while 
waiting for transport. 
 
 At 10:00 P.M., an MCI Transport Bus left the Lordsburg Border Patrol 
Station route to the Bounds FOB. Lordsburg Border Patrol Station is 
approximately 94 miles away from the FOB Bounds, and the trip takes 
between two to three hours.  
 
 Around 12:20 AM on December 7, the MCI Transport Bus transported 
the first group of UAC to the Lordsburg Border Patrol Station. 
 
 
 

 

 

 

 

 

 

 

 

 

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 The MCI Transport Bus returned at 4:00 AM to the Bounds FOB. At 
4:30 AM, the second group, including the child and her father was 
loaded onto the MCI Transport Bus. Just prior to departure, at 5:00 AM, 
the father advised the agent that the child was sick and vomiting while 
on the bus.  
 
 At this time, the Agents notified the Lordsburg Border Patrol Station to 
prepare to receive the child and provide emergency medical care.  
 
 Shortly before 6:30 AM, the bus arrived at the Sally Port of the 
Lordsburg Border Patrol Station and the father advised that the child 
was not breathing. A Border Patrol Emergency Medical Technician 
began to provide medical care and revived the child twice. It was 
determined at this time that she had a temperature of 105.7 degrees. 
 
 Hidalgo County EMS arrived and began providing care at 6:40 AM. A 
decision was made to transport to the nearest trauma center, 
Providence Children’s Hospital in El Paso, Texas.  
 

 
 

 

 

 

 

 

 

 

 

 

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 Air Ambulance departed LOB with the child at 7:45 AM, she arrived at 
the Providence Children’s Hospital in El Paso at 8:50 AM and received 
additional emergency medical care.  
 
 Her father was transported by CBP via a government vehicle to the 
hospital. 
 
 At 11:00 AM on December 7, LOB was notified the juvenile went into 
cardiac arrest again and was subsequently revived. She was breathing 
by machine and diagnosed with liver failure.  
 
 She died at 12:35 AM on December 8. 
 
(2) Felipe Alonzo‐Gomez 
Information made available by CBP (times indicated to be local, Mountain 
Standard Time): 
 On December 18, at approximately 1300 hours, eight year‐old Felipe 
Alonzo‐Gomez was apprehended with his father at 3.29 miles west of 
the Paso Del Norte Port of Entry in El Paso, Texas. 
 
 
 

 

 

 

 

 

 

 

 

 

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 On December 18, at approximately 1639 hours, the father and child 
were transferred to the PDT processing center.  
 
 While detained at PDT, the child and his father were provided hot food, 
snacks, juice, and water, and the agents logged six welfare checks.  
 
 On December 20, at 1200 hours, the child and his father were 
transferred to El Paso Border Patrol Station (“EPS”). 
 
 From December 20 to December 22, the child and his father were 
provided with showers, food, juice, and water, and the agents logged 17 
welfare checks. 
 
 On December 22, at approximately 2317 hours, U.S. Border Patrol 
transferred the child and father to the Alamogordo Border Patrol 
Station (“ALA”) to finalize processing. The child and his father were 
transferred because of capacity levels at the El Paso Station. 
 
 On December 23, at approximately 0108 hours, the child and his father 
arrived at the Alamogordo Station. 
 
 
 

 

 

 

 

 

 

 

 

 

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o Upon arrival, the child and his father were provided with 
personal hygiene products and meals, and they received several 
welfare checks. 
 On December 24, at about 0539 hours, a placement request for the 
child and his father was e‐mailed to ICE’s Enforcement and Removal 
Operations’s family placement inbox. 
 
 On December 24, at approximately 0900 hours, a processing agent 
noticed that the child was coughing and appeared to have glossy eyes.  
 
 On December 24, at approximately 0930 hours, based on the agents’ 
observations, the child and his father were transferred to GCRMC with 
possible influenza symptoms. 
 
 On December 24, at about 1130 hours, hospital staff conducted several 
tests on the child for strep throat.  
 
 On December 24, at about 1320 hours, the child was evaluated for 
release and found to have a 103 degree fever and was held for 
continued observation. 
 
 
 

 

 

 

 

 

 

 

 

 

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 On December 24, at about 1450 hours, the child was released from the 
ER with a prescription for amoxicillin and ibuprofen. 
 
 The child and his father were transported to temporary holding at the 
Highway 70 checkpoint. While at the checkpoint, the child and his 
father were offered and accepted a hot meal.  
 
 At about 1700, agents provided the child with a dose of the prescribed 
medication as ordered by the medical staff and agents conducted 
several welfare checks that evening. 
 
 On December 24 at 1900 hours, the child appeared to be nauseous and 
vomited. Agents were aware of this and helped clean up the vomit. 
 
o His father declined further medical assistance as the child had 
been feeling better. 
 
 On December 24, at about 2200 hours, the child appeared lethargic and 
nauseous again. 
 

 
 

 

 

 

 

 

 

 

 

 

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o As no EMT was on‐duty, agents made the decision to return the 
child and his father to the hospital. During transportation to the 
hospital the boy began to vomit and he lost consciousness. 
 
 At 2307 hours, radio traffic indicated that the agent had arrived at the 
hospital where he was met by hospital staff. 
 
o The staff were unable to revive the child and pronounced him 
deceased at 2348 hours on December 24, 2018. 
 
 The Guatemala Consulate was contacted at 0740 hours on December 
25, 2018. The father is currently detained at the Alamogordo Station 
pending transfer to ICE Enforcement and Removal Operations (“ERO”). 
He has spoken to his spouse in Guatemala and the Guatemala 
Consulate.  
 
B. ICE Facilities 
i.

Issues 

Pursuant to the Court’s June 27, 2017 Order Re Plaintiffs’ Motion to Enforce 
and Appoint a Special Monitor [Doc. # 363], the Monitor is focusing on two 
 
 

 

 

 

 

 

 

 

 

 

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categories of allegations with respect to ICE: secure, unlicensed facilities and 
releasing minors without unnecessary delay or within 20 days of detention. 
With respect to unnecessary delay/20‐days requirement, the ICE Juvenile 
Coordinator has provided the Monitor with helpful material from the ERO 
Custody Management Division Enforcement Integrated Database (“EID”). 
Although the Monitor has not yet personally reviewed the files of minors who 
have experienced delay in excess of 20 days, the Coordinator advises that 
common reasons that unaccompanied children remain in custody over 20 
days are the following: 
 Parents not claiming fear of return to their country of citizenship when 
apprehended but subsequently asserting the claim; 
 Sponsor delay in providing a transportation plan to transfer the minor 
to the sponsor; or 
 Delays in ICE receiving from the U.S. Citizenship and Immigration 
Services (“CIS”) the determination on the claimed fear of return. 
ii.

Monitor’s Investigation 
(1) South Texas Family Residential Center (Dilley) 

The large Dilley facility was constructed in 2015 for families detained by ICE 
and is maintained by CoreCivic by contract. It consists of almost 55 acres of 
 
 

 

 

 

 

 

 

 

 

 

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grounds and was designed to accommodate up to 2,400 people. The facility is 
still not officially licensed by the State of Texas, but it is still subject to 
unannounced inspections and standards of licensed facilities. The Monitor is 
told that State inspections of Dilley occurred 3 times in 2016, 3 times in 2017, 
and 2 times in 2018. The Monitor will be examining copies of those 
inspections later in March. The case cited by the Court in the 2017 order [Doc. 
# 363], Grassroots Leadership, Inc. v. Texas Department of Family and 
Protective Services, No. D‐1‐GN‐15‐004336, slip op., Travis Cty. Dist. Court 
(Dec. 16, 2016), has been reversed. See Texas Department of Family and 
Protective Services v. Grassroots Leadership, Inc., (Tex. App., Nov. 28, 2018, No. 
03‐18‐00261‐CV) 2018 WL 6187433. The Texas Court of Appeals set aside on 
standing grounds the order prohibiting Texas from issuing childcare licenses 
to the Dilley and Karnes residential centers.  
The Monitor toured the Dilley facility with the ICE Juvenile Coordinator, staff, 
and lawyers for Plaintiffs and Defendants on November 26, 2018.  
The Monitor observed that since the families are not free to leave the facility 
without staff accompaniment, it is defined as a secure facility. Individual 
family members can move freely throughout the large, open facility to 
playrooms, snack areas, libraries, exercise rooms, and outdoor athletic fields. 
Residents in each of the six‐ to eight‐person bedrooms have access to cable 
television. 
 
 

 

 

 

 

 

 

 

 

 

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Dilley was constructed specifically within the framework of ICE's detention 
standards, focused on the needs of family groups. There is a school on‐site, 
operated by a contractor with 18 years of experience nationwide, staffed by 
bilingual, state‐certified teachers. Parents have access to English as a Second 
Language and other adult education programs. Volunteers for the Dilley Pro 
Bono Initiative have designated offices to consult with clients seven days a 
week. Dilley has medical facilities, including a dental office, on premises. A 
subcontractor, ICE Health Service Corp., provides 24‐hour medical services. 
Residents can receive visitors seven days a week, from 8 A.M. to 8 P.M. 
Recreation resources include a soccer field, volleyball and basketball courts, 
board games, and toys. There is a large library, a small computer lab with 
internet access and email services, and residents have access to a beauty 
shop. Residents may keep and wear their own clothes, and non‐institutional, 
brightly‐colored clothing is available. The facility’s cafeteria serves three 
meals a day, seven days a week. 
The average length of stay for Dilley during January 2018 was 19.8 days. As of 
December 18, 2018, the average length of stay was 11.6 days. The 2018 
average was 14.6 days.6 

                                                   

6 The ICE Juvenile Coordinator has provided the Monitor information 

regarding ICE’s computation of these averages. She advises that minors who 
 
 
 
 
 
 
 
 
 
 
 
 
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(2)

Karnes County Residential Center 

The Karnes County Residential Center, located in Karnes City, Texas, has a 
capacity of 830 residents, including 580 children younger than 18. Karnes 
originally housed female head‐of‐household family units since the beginning 
of August 2014, but since July of 2018 Karnes has transitioned to male‐head‐
of‐household units with male children only. 
As noted above, the recent appellate decision in the Grassroots Leadership 
case (see p. 32) has removed the bar to state licensure for Karnes, but the 
facility does not presently hold a state license. As with Dilley, it is subject to 
unannounced inspection and standards of licensed facilities. The Monitor is 
told inspections of Karnes occurred once in 2015, 2 times in 2016, 2 times in 
2017, 2 times in 2018, and once in 2019. The Monitor will receive copies of 
those inspections. 
The Monitor toured the Karnes facility with the ICE Juvenile Coordinator, her 
staff, and lawyers for Plaintiffs and Defendants on November 27, 2018. 
Again, as with Dilley, since the families are not free to leave the facility 
without staff accompaniment, it is defined as a secure facility. The families 
                                                                                                                                                       
have not yet been reunited with their parents in accordance with the Ms. L v. 
ICE order have been excluded from the Flores timeframe. The Monitor expects 
to obtain additional information regarding these averages and numbers for 
minors whose stays have exceeded certain thresholds. 
 
 

 

 

 

 

 

 

 

 

 

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have free movement within the facility and grounds. The Karnes Pro Bono 
Project (“RAICES”) is provided a designated area to consult with clients,  and 
visitations are permitted seven days a week.  
According to the Resident’s Handbook provided to the Monitor, the personal 
areas are searched once a day to detect contraband, maintain sanitary 
standards, and eliminate fire and safety hazards. Rules of Behavior and 
Discipline are given to all adults. Staff conducts an adult and child census 
three times a day. 
Non‐institutional clothing is provided. There is a law library and a leisure 
library. Recreation facilities include an outdoor basketball court, an indoor 
gymnasium, and a playscape for children. The Monitor toured the medical and 
dental facilities and cafeteria, and observed an interactive religious service 
with approximately 40‐50 male adults in attendance. Residents may maintain 
personal attire for daily wear. Individual washing machines are available 
throughout the living areas. The eight person bedrooms are fitted with cable 
television.    
The average length of stay for minors at Karnes during January 2018 was 15.4 
days. During December 2018, the average length of stay was 10.1 days. The 
2018 average was 11.8 days. Length of stay was determined by ERO Custody 
Management by calculating the time between Apprehension Date and either 
 
 

 

 

 

 

 

 

 

 

 

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Book‐out date or the end of month for those who remained in custody.7 On 
occasion, where there are data quality issues on the apprehension date, the 
initial Book‐in date was substituted. 
C. ORR Facilities 
i.

Issues 

Pursuant to the Court’s Order Re Plaintiffs’ Motion To Enforce Class Action 
Settlement [Doc. # 470], the focus of the Monitor’s investigation concerns 
three categories of issues.  The first category is the assignment of UACs to 
ORR staff‐secure facilities or secure facilities, with particular attention to 
whether the UAC is given timely written notice of the reasons for placing a 
UAC in a secure facility, staff‐secure facility, or RTC. The second category 
concerns the administration of psychotropic medication to class members 
without the informed written consent by a person authorized by state law or 
a court order. This latter issue is particularly pressing in the context of the 
Shiloh Residential Treatment Center, also described by Shiloh personnel as a 
subacute hospital with a residential program8.  The Monitor will address the 
                                                   

7 The Monitor has questions about the aggregation of booked‐out minors and 

those still in custody and expects to receive additional information about this 
and other data. 

8 The Order specifically applies to Shiloh, but the issue is so entwined with the 

delivery of psychotropic drugs in all shelters, that the Monitor will address 
the medical delivery of drugs in ORR shelters in a future report. 

 
 

 

 

 

 

 

 

 

 

 

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issues particular to Shiloh below (see p. 40 et seq.). The third category 
concerns the time UACs are in the custody of ORR and whether all expeditious 
steps have been taken to place the UACs in a non‐institutional setting.  
ii.

Monitor’s Investigation 

On December 3, 2018, the Monitor toured two of the more than 100 shelter 
facilities for which ORR contracts, the Catholic Charities Houston Shelter and 
the Southwest Key Casa Montezuma Shelter. 
The Monitor does not yet have the data necessary to determine the duration 
of minors’ stays at these two facilities, but the ORR data for fiscal year 2018 
reflects that of the 55,136 total placements nationally, 35,249 (86%) were 
released, 896 (2%) were removed, and the overall length of care averaged 60 
days. Nationally, the data for the first three months of the 2019 fiscal year 
(the U.S. federal government’s fiscal year begins October 1) reflect total 
placements of 18,137, of which 12,953 were released (90%), 256 (2%) 
removals, and a significant increase in overall average length of care, to 89 
days. The RGV‐specific numbers will be included when they are received. 

 
 

 

 

 

 

 

 

 

 

 

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(1) Catholic Charities Houston 
The Monitor visited the Catholic Charities Houston Shelter on December 4, 
2018, with the staff of ORR and counsel for Defendants.9 The shelter is in an 
attractive home in a residential neighborhood, designed to care for young 
women and their infants. At the time of the visit, there was one infant in the 
childcare room being cared for by a staff member. All of the women were at 
school during the visit except one who was in the hospital about to deliver. 
It appeared that the young women were free to come and go unimpeded. We 
could not interview any of the young women who were in class to determine 
whether they were having any difficulty coming and going as they wished. 
The facility holds a license from the state.  
(2) Southwest Key Casa Montezuma 
The Monitor visited Southwest Key Casa Montezuma on the same day, 
December 4, 2018, accompanied by staff of ORR and counsel for Defendants.  
Southwest Key Casa Montezuma is a modified hospital in a residential area 
and operates as a General Residence Operation. It is a large facility with a 
capacity for 800 unaccompanied children. The Monitor observed bedrooms, 
                                                   

9 Plaintiffs’ counsel were given the opportunity to participate in the visits to 

the Catholic Charities and Southwest Key Casa Montezuma facilities but 
declined. They did join the visit to Shiloh, as noted below. 

 
 

 

 

 

 

 

 

 

 

 

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bunk beds, dresser drawers, and often an attached bathroom. The male UACs 
are on a separate floor from the females. No personal items were observed in 
the bedrooms, either on the beds or on the dresser. The facility is surrounded 
by security for persons coming and going. The facility is locked and secure, 
with personnel regulating entry and exit of visitors and staff and minors 
accompanied by staff. The outdoor area for exercise is small and surrounded 
by a chain‐link fence. The Monitor observed school classes, which appeared to 
be of reasonable size and engaged in appropriate teaching activities. The 
monitor examined the cafeteria at mealtime, seeing male and female minors 
eating at the same time, with talk and laughter among the minors. The food 
looked appetizing. The walls of the cafeteria and general halls were decorated 
with bright colors, signs announcing events and reporting inappropriate 
conduct, and student artwork. 
The Monitor observed the medical facilities and met with administrative 
personnel. In walking through the facility, the Monitor observed mental 
health professionals in their offices and teachers conducting classes. The 
Monitor was told that all of the relevant staff held state licenses and that the 
facility itself was licensed. 
Family members are able to visit the minors, and the Monitor observed a 
bank of telephones available for private conversations with family, friends, 
and potential sponsors.  
 
 

 

 

 

 

 

 

 

 

 

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In response to questions, administrative staff recognized that there had been 
increased delay in obtaining sponsors, which the Monitor understands to be 
attributable, at least in part, to the current government policy regarding the 
need for fingerprints. But staff said that, in addition, they were sometimes 
being told that the fingerprints for household members of a prospective 
sponsor had expired, delaying placement until fingerprinting could be 
repeated. There also appeared to be increased investigation of sponsors and 
of the extended family of the potential sponsor.  
In January of 2019, subsequent to the December 4th tour, the Monitor was 
informed that on December 18, 2018, ORR policy had been changed by an 
Operational Directive in an attempt to increase the speed of investigation of 
sponsors and extended families, and decrease the length of care described 
during our tour. Among other things, ORR revised ORR fingerprint policy to 
extend the time period in which fingerprints remain valid. The Monitor will 
be reviewing the impact of this change in policy and provide results in the 
next Report.  
(3) Shiloh Residential Treatment Center 
The Monitor attended the first tour and interviews at Shiloh with counsel for 
the Parties and ORR personnel. The Unaccompanied Minor’s Program at 
Shiloh Treatment Center is a residential treatment program in a rural and 
 
 

 

 

 

 

 

 

 

 

 

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isolated environment that serves children and adolescents ages 3 – 18 years 
old with behavioral and emotional problems resulting from a mental health 
diagnosis. Shiloh operates 24 hours a day, 7 days a week. Shiloh is currently 
licensed for 44 beds by the Texas Department of Family and Protective 
Services, accredited by the Joint Commission, and approved as a non‐public 
school by the Texas Education Agency. 
The Court specifically directed that Shiloh provide facilities where minors 
may have private telephone conversations. The Monitor and attendees 
examined the office with the cubicle equipped with seating and the telephone 
used by the minors. Since the Court’s Order, the formerly solid door to the 
telephone cubicle has been altered to include a window, so that minors can 
now close the door and speak without being overheard by a staff member in 
the office. 
The Monitor observed the residences of the minors. The interiors contain 
bedrooms with bunk beds, bedroom furniture, private bathrooms, and a 
common living room, dining room and kitchen. The exteriors of the 
residences are equipped with visible security on doors and windows. The 
Monitor also observed a class in session and staff and boys in the athletic 
yard. 

 
 

 

 

 

 

 

 

 

 

 

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At the conclusion of the tour, the Monitor met in a conference room with ORR 
personnel, counsel, management of Shiloh, and the expert psychiatrist for 
Plaintiffs to discuss in general the role of ORR and its contractors caring for 
UACs, and specifically the current compliance by Shiloh with the Court’s 
Order after July 30, 2018. The conversation focused primarily on informed 
consent for administration of psychotropic medications, ensuring that minors 
were held in the least restrictive environment, and that minors should be 
expeditiously released or “stepped down” to a less restrictive environment.  
The lawyers and Shiloh staff concluded the meeting with a brief question and 
answer session. 
Days later, at a subsequent meet and confer with counsel, at the suggestion of 
the Monitor, it was agreed that the Program Administrator, Shiloh 
Psychiatrist, and Plaintiffs’ expert witness should meet in person or through 
Skype to further discuss disputed issues, without their lawyers present, with 
the hope that the medical professionals could develop a medical protocol 
consistent with best practices and the Order. It was decided that the Monitor 
would attend as moderator. 
The Monitor attended the meeting of the doctors at Shiloh on January 14, and 
observed their thoughtful and far‐ranging attempt to develop a common 
protocol.   

 
 

 

 

 

 

 

 

 

 

 

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At the conclusion of the meeting, the doctors agreed to share their 
impressions with the lawyers for ORR and the Plaintiffs.  The Monitor has 
been informed that after hearing from the doctors, the lawyers for ORR and 
the Plaintiffs have met and conferred in January and February. Each side has 
proposed language to settle the dispute.  The Monitor will report on the 
results in the next Report. 

6. DISCUSSION OF WHETHER DEFENDANTS’ RESPONSES TO 
PLAINTIFFS’ DECLARATIONS HAVE REBUTTED PLAINTIFFS’ 
EVIDENCE 
Paragraph D(1)(a) of the Order Appointing the Monitor requires her to 
include in the First Report and Recommendation a discussion of “Defendants’ 
responses to the declarations Plaintiffs filed on July 19, 2018 [Doc. ## 475 to 
475‐7] and Plaintiffs’ reply hereto [Doc. ## 481 and 481‐1], and opine on the 
extent (if any) to which Defendants have rebutted Plaintiffs’ evidence.”10 

                                                   

10 Defendants’ filing contains separate replies from ICE Juvenile Coordinator 

Deane Dougherty [Doc. # 475‐1] and USBP Juvenile Coordinator Henry A. 
Moak, Jr. [Doc. # 475‐2 to 475‐7]. The ICE reply addresses Plaintiffs’ 
Memorandum Re Status Conference and Response to Third Government 
Monitors’ Reports [Doc. ## 457 to 457‐1], dated July 13, 2018, and does not 
purport to address Plaintiffs’ July 19, 2018 declarations, to which this 
paragraph of the Order refers. Therefore, the Monitor focuses here on 
Mr. Moak’s response to the allegations against CBP in Plaintiffs’ July 19, 2018 
filing.  
 
 

 

 

 

 

 

 

 

 

 

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In his response (Letter from Henry A. Moak, Jr. to Hon. Dolly M. Gee, Aug. 6, 
2018) [Doc. #475‐1] (“Moak Ltr.”), Mr. Moak describes how he had CBP 
activity logs and amenity reports retrieved for all of the declarations 
pertaining to the RGV Sector, of which he was able to obtain documentation 
regarding 18 of the declarants; he attaches those documents to his response. 
Mr. Moak then presents his conclusions from this review. The Monitor has 
reviewed his response and compared the 18 declarations to the records 
proffered by Mr. Moak. Obviously this is a limited subset from which to draw 
any broad conclusions about rebuttal of Plaintiffs’ evidentiary showings, but 
that is of lesser concern than the limited evidentiary support CBP can draw 
from the 18 files that were examined. 
Mr. Moak’s file review demonstrates that the full breadth of the allegations in 
Plaintiffs’ declarations are not fully addressed in the file. Overall, “the 
custodial records indicate many of the minors were provided some or all of 
these amenities.” (Moak Ltr., at 2.) The review is restricted to “allegations 
related to personal hygiene products, access to showers, food availability, or 
other amenities offered” (id.), and acknowledges that some of the declarants’ 
allegations “cannot be resolved based solely on the attached RGV records,” in 
part because some of the issues (e.g., ambient temperatures) pertain to 
declarants’ subjective experiences (id. at 3). And Mr. Moak acknowledges 

 
 

 

 

 

 

 

 

 

 

 

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“particularly concerning” allegations of agent or officer misconduct, which 
have been referred to CBP’s Office of Professional Responsibility. (Id.)  
Mr. Moak compares the allegations of two declarations with the records 
proffered with his response, which “illustrate how many of the 18 
declarations I reviewed contain allegations that are inconsistent with the 
actual data collected by CBP during the minors' time in custody.” (Id. at 2.) 
The Monitor has compared the declarations with the CBP data provided. The 
comparison reveals that the limited scope of the data maintained, the 
inherently subjective nature of some of the complaints, and the limited 
conclusions Mr. Moak was able to reach cannot provide sufficient evidentiary 
refutation of the declarations. 
To illustrate, Mr. Moak’s first example regards Keylin M, whose declaration is 
Plaintiffs’ Exhibit 6. The following table itemizes the allegations, shows 
Mr. Moak’s responses, and describes how the Monitor finds that the two 
relate. 
 
 
 
 
 
 

 

 

 

 

 

 

 

 

 

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Allegation  
(Plaintiffs’ Exhibit 6) 
Room cold, shivering, miserable 
cold. (¶¶ 4, 10) 

CBP Response  
(Moak Ltr., p. 2) 
No response with respect to 
Keylin in particular, but CBP 
maintains that, except as 
noted, temperature was 
maintained between 60 and 
80 degrees F. 

Given food frozen (¶¶ 5, 13, 20) 

“[C]ustodial records show 22 
meals were accepted, one 
meal was rejected, and seven 
snacks were offered during the 
minor's time in custody.” 

Monitor confirms that e3DM 
records show minor 
“accepted” 22 meals (plus 
snacks) and refused 1. 
Whether minor found them 
edible (i.e., actually ate) is 
not clear. Several of 
Plaintiffs’ declarants made 
the same allegation 
regarding undefrosted food.  

Separated from Mother, limited 
opportunity to talk (¶¶ 6‐7, 19) 

No response 

 

Female guards abusive (¶¶ 8‐9) 

Allegations are particularly 
concerning. Referred to OPR. 

 

Food smelled bad (¶¶ 13, 20) 

Guards did not allow them to keep  No response 
blankets when leaving facility. 
(¶¶ 11, 12) 

 
 

 

 

 

 

 

 

Monitor’s Observations 
Numerous declarations 
allege (and Monitor 
observed) that rooms felt 
cold, minors were 
unaccustomed to air 
conditioning, many were 
lightly dressed.  

Allegation appears to regard 
being permitted to keep 
blankets when transferred 
between facilities, rather 
than being denied blankets. 

 

 

 

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Allegation  
(Plaintiffs’ Exhibit 6) 
Had no toothpaste, toothbrush at 
“Dog House” (¶ 14) 

CBP Response  
(Moak Ltr., p. 2) 
“KM received . . . a dental 
hygiene product, . . .” 

Bathrooms “dirty and disgusting, 
toilets overflowing” (¶ 15) 

No response. 

 

Was not allowed to shower or 
change for 5 days (¶ 16) 

“Custodial records indicate 
that KM received … two 
showers during her time in 
custody.” 

Minor was in custody for 8 
days at time of declaration. 

Not given any food, water when 
moved after 4 days (¶ 18) 

“[C]ustodial records show 22 
meals were accepted, one 
meal was rejected, and seven 
snacks were offered during the 
minor's time in custody.” 

This allegation appears to 
refer to 5th day in custody, 
when she was transferred 
from “RGV” to “BRP”. E3DM 
records indicate meals were 
received. No records 
regarding water. 

Monitor’s Observations 
Records show she received 
these items at “RGV”, the 
first facility to which she was 
taken. Declaration says she 
did not have toothpaste, 
toothbrush “the entire time I 
was at the Dog House,” 
which appears to refer to 
the second facility (“BRP” in 
the records), where she was 
taken on her fifth day in 
custody. So it appears she 
did not take what she was 
given at “RGV” with her to 
“BRP”, where she was not 
given new dental hygiene 
items. 

 
 
 
 

 
 

 

 

 

 

 

 

 

 

 

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The material Mr. Moak has provided is by no means irrelevant to the issues 
before the Court. In the Monitor’s view, this exercise has shown that while the 
e3DM data definitely has a significant role to play in examining some of the 
allegations that have been made, rebuttal of the full range of issues requires 
evidence outside the e3DM materials, at least as it is presently designed, and 
may require, for example, reconsideration of the standards and criteria CBP 
has adopted. 
At this point the Parties have moved beyond the allegations of the 2018 
filings. The Monitor has seen some progress on a number of the issues that 
have thus far eluded resolution. If, after the current efforts run their course, 
some issues remain unresolved, the Parties can address them with new 
evidence from both sides. 

 
 

 

 

 

 

 

 

 

 

 

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