Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9057 Page 1 of 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Ms. L.; et al., Case No.: 18cv0428 DMS (MDD) Petitioners-Plaintiffs, 12 13 v. 14 U.S. Immigration and Customs Enforcement (“ICE”); et al., 15 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO ENFORCE PRELIMINARY INJUNCTION Respondents-Defendants. 16 17 18 Plaintiffs bring the present motion to enforce this Court’s June 26, 2018 preliminary That injunction was directed at the Trump Administration’s practice of 19 injunction. 20 separating migrant parents and their minor children when they crossed the United States- 21 Mexico border and its failure to reunify those families in accordance with the United States 22 Constitution. The Administration’s practice of separating these families was formally 23 abandoned on June 20, 2018, when the President of the United States issued Executive 24 Order No. 13841, which reestablished a policy to “maintain family unity,” and directed 25 that alien families be detained together “during the pendency of any criminal improper 26 entry or immigration proceedings involving their members.” However, the Executive 27 Order did not provide any guidance on reunifying families, and did not provide any 28 guidance on future family separations, other than stating that parents and children would 1 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9058 Page 2 of 26 1 not be detained together if Defendants had “concerns” that the parent posed “a risk to the 2 child’s welfare.” This Court’s injunction addressed those two issues. 3 Specifically, it required 4 Defendants to reunify within thirty days parents and minor children who had been 5 separated under the Administration’s practices, and prohibited Defendants from separating 6 migrant parents and their minor children in the future absent a determination that the parent 7 was unfit or presented a danger to his or her child or had a criminal history or 8 communicable disease. 9 The day after this Court issued its preliminary injunction and accompanying order 10 granting class certification, Defendants implemented new guidelines and procedures in an 11 attempt to comply with those orders. Nevertheless, in the year following issuance of the 12 preliminary injunction, Defendants have separated nearly 1,000 migrant families at the 13 border. 14 “systematic” separation of families, prompting the present motion. It is undisputed that 15 prior Administrations separated families at the border based on fraudulent claims of 16 parentage, or evidence of child trafficking or other dangers to the child or community. 17 Defendants argue their practices now are no different from prior Administrations. They 18 point out that the number of separations at issue represents a small fraction of the number 19 of individuals entering the border at the time in question, some 524,294 parents and 20 children, and reflects careful exercise of discretion consistent with the Court’s orders. 21 Given these numbers, Plaintiffs fear the Administration has returned to Considering the Administration’s return to family unity, Defendants’ 22 implementation of guidelines immediately following the Court’s preliminary injunction, 23 Defendants’ authority to secure the Nation’s borders, and the scope of the class and need 24 to avoid individualized determinations, the Court finds Defendants are generally exercising 25 their discretion to separate families at the border consistent with Plaintiffs’ rights to family 26 integrity and the Court’s orders, with one exception regarding DNA testing and one 27 clarification regarding separations based on family residential center standards. 28 /// 2 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9059 Page 3 of 26 1 I. 2 BACKGROUND 3 In July of 2017, the Trump Administration embarked on an unprecedented policy of 4 separating migrant families at the border to deter immigration. The policy started quietly 5 and was implemented by the Department of Homeland Security (“DHS”) through Customs 6 and Border Protection (“CBP”) officials at border facilities in Texas. See Department of 7 Homeland Security, Office of the Inspector General, DHS Lacked Technology Needed to 8 Successfully Account for Separated Migrant Families, Rep. No. OIG-20-06 (Nov. 2019) 9 (“OIG DHS Report (11/25/19)”), at 5 (stating DHS began a “prosecution initiative … in 10 the El Paso Sector to deter illegal border crossings by increasing prosecutions, which 11 resulted in an increase in family separations.”). Eventually, the policy would be made 12 public on May 7, 2018, when the Attorney General of the United States announced the 13 Administration’s “zero tolerance policy,” in which all migrant parents entering illegally 14 between ports of entry with their minor children would be criminally prosecuted and 15 separated from their children. 16 separation of thousands of migrant parents and children, most of whom were seeking 17 asylum from countries in Central America and many of whom entered the United States 18 lawfully at designated ports of entry. In addition, parents who were prosecuted for 19 unlawful entry for entering between ports of entry were not reunified with their children 20 after serving brief criminal sentences because DHS did not have adequate systems in place 21 to keep track of the children, let alone any plan to reunify the families. As a result, migrant 22 parents remained separated from their children for months while the parents pursued their 23 asylum claims and other relief from removal. Many of the parents were deported back to 24 Central America without their children after exhausting their challenges to removal. In practice, the policy resulted in the indiscriminate 25 In response to this situation, Plaintiffs filed the present case seeking to enjoin family 26 separations on constitutional and statutory grounds. The focus of Plaintiffs’ Complaint 27 was not the zero tolerance policy, but rather a broader family separation practice that was 28 being applied to families crossing into the United States both legally at designated ports of 3 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9060 Page 4 of 26 1 entry and illegally between ports of entry. In response to the Complaint, Defendants filed 2 a motion to dismiss, which the Court denied. In the June 6, 2018 order on that motion, the 3 Court found Plaintiffs had stated a legally cognizable claim that this broader family 4 separation practice violated the right to family integrity and association under the Due 5 Process Clause of the Fifth Amendment to the United States Constitution. The Court also 6 found Plaintiffs’ allegations that Defendants’ practice of separating parents for prosecution 7 for improper entry (zero tolerance) and failing to reunify those families after the parent 8 completed his or her sentence without a determination the parent was unfit or presented a 9 danger to the child stated a claim for violation of the right to family integrity. 10 Thereafter, on June 20, 2018, the President of the United States abandoned the zero 11 tolerance policy in favor of a “policy of th[e] Administration to maintain family unity” by 12 way of the Executive Order, see Exec. Order No. 13841, 83 Fed. Reg. 29435 (June 20, 13 2018), but did not address reunification or set out specific standards for separating family 14 units in the future.1 This Court then issued its order on class certification and the 15 preliminary injunction on June 26, 2018. Pursuant to those orders, the Court certified a 16 class that included adult parents who entered the United States at or between ports of entry 17 who were detained in immigration custody and had a minor child who was separated from 18 them and placed in the custody of the Department of Health and Human Services (“HHS”), 19 Office of Refugee Resettlement (“ORR”). Specifically, the Court certified the following 20 class (“Ms. L. class”) on Plaintiffs’ due process claim arising out of the Administration’s 21 family separation practices: 22 All adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the DHS, and (2) have a minor child who is or will be separated from them 23 24 25 1 26 27 28 Prior Administrations attempted to maintain family unity at the border. See CBP, National Standards on Transport, Escort, Detention, and Search (“TEDS”), October 2015, at § 1.9 Family Unity (stating “CBP will maintain family unity to the greatest extent operationally feasible, absent a legal requirement or an articulable safety or security concern that requires separation.”) 4 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9061 Page 5 of 26 1 by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child. 2 3 (ECF No. 82 at 17.) The Court excluded from the class “parents with criminal history or 4 communicable disease, or those who are in the interior of the United States or subject to” 5 the Executive Order. (Id.) The preliminary injunction ordered the reunification of class 6 members with their children and prohibited Defendants from separating parents from their 7 minor children at the border “absent a determination that the parent is unfit or presents a 8 danger to the child.” (ECF No. 83 at 22-23.)2 9 The day after the Court issued its injunction, Defendants distributed a Memorandum 10 to CBP employees providing “initial direction on compliance with” the Court’s orders. 11 (Opp’n to Mot., Ex. 4 (Memorandum from Kevin K. McAleenan, Commissioner, U.S. 12 Customs and Border Protection, to Carla L. Prevost, Chief, U.S. Border Patrol, and Todd 13 C. Owen, Exec. Asst. Commissioner, Office of Field Operations (June 27, 2018)) 14 (“Memorandum” or “CBP Interim Guidance Memorandum”). The Memorandum directs 15 that parents “who enter the United States illegally as part of a family unit … should not be 16 referred for prosecution for [improper entry under] 8 U.S.C. § 1325.” (Id.) In addition, it 17 states that a parent should not be separated from his or her minor child unless he or she has 18 a criminal conviction for “violent misdemeanors or felonies[,]” presents a danger to the 19 child, has a communicable disease, or presents a fraudulent claim of parental relationship. 20 (Id.) The Memorandum emphasizes that “any questions about what constitutes a violent 21 misdemeanor or felony should be referred to the local Office of Chief Counsel[,]” and that 22 /// 23 24 25 26 27 28 2 At the time the preliminary injunction issued on June 26, 2018, 2,814 children had been separated from their parents (“Ms. L. class members”) and were then in the custody of ORR in facilities throughout the country. Through the parties’ reunification efforts, every one of these families was accounted for and nearly every child was reunified with a parent either in the United States or in their country of origin or placed with a sponsor in the United States to pursue asylum, in accordance with law and the parents’ wishes. 5 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9062 Page 6 of 26 1 “any questions about how to comply with the court order should be raised through the 2 appropriate chain of command for contact with local Office of Chief Counsel.” (Id.) 3 In November 2018, after the majority of class members had been reunited with their 4 children, Plaintiffs notified the Court that Defendants were interpreting the class 5 certification order to include only those parents whose children were in ORR custody on 6 or after June 26, 2018. Given Plaintiffs’ allegations that the family separation practice had 7 been in effect well before the announcement of the zero tolerance policy, Plaintiffs filed a 8 motion to clarify that the class include parents who had been separated from their children 9 prior to June 26, 2018, and whose children had been released from ORR custody prior to 10 that date. While that motion was pending, the Office of Inspector General for HHS 11 confirmed that Defendants began separating families in July of 2017, and that potentially 12 thousands of additional children may have been through ORR custody before the 13 preliminary injunction issued. See Department of HHS, Office of the Inspector General, 14 Separated Children Placed in Office of Refugee Resettlement Care, HHS OIG Issue Brief 15 No. OEI-BL-18-0051 (Jan. 2019). 16 Plaintiffs’ motion to modify the class definition to include those parents who had been 17 separated from their children at the border beginning on July 1, 2017, and whose children 18 were released from ORR custody prior to June 26, 2018. As with the original class, the 19 expanded class is subject to the same exclusions for criminal history and communicable 20 disease.3 21 /// After that report was issued, the Court granted 22 23 3 24 25 26 27 28 After the Court modified the class definition, it ordered Defendants to conduct an accounting of possible children of members of the expanded Ms. L. class. That accounting was completed on October 25, 2019, and revealed an additional 1,556 separated children. It appears the majority of parents in the expanded class were deported to Central America without their children. Finding them will involve the same painstaking process that was used to locate the 471 parents who were removed without their children in the original class of 2,814 parents. The reunification effort is presently underway and is being monitored by the Court through monthly status conferences with the parties. 6 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9063 Page 7 of 26 1 Consistent with the Court’s class certification orders and preliminary injunction, 2 Defendants have continued to separate parents and children crossing the border when there 3 are concerns about parentage, the parent has a criminal history or communicable disease 4 (or long-term medical need), or the parent is unfit or presents a danger to his or her child 5 or others. 6 Plaintiffs reported Defendants had excluded only twenty-nine parents from the class based 7 on the factors identified in the Court’s orders. Plaintiffs assert the number of parents who 8 have since been excluded from the class in the year following issuance of the preliminary 9 injunction stands at approximately 1,000.4 During the initial reunification process of approximately 2,814 families, 10 Given the number of family separations and the expectation that more parents will 11 be excluded from the class in the future, Plaintiffs filed the present motion to enforce the 12 Court’s preliminary injunction. The Court heard argument on the motion on September 13 20, 2019. In response to the Court’s invitation during oral argument, counsel in MMM v. 14 Sessions, Case No. 18cv1832, and Dora v. Sessions, Case No. 18cv1938, who represent 15 the settlement class of children of Ms. L. class members, filed a supplemental letter brief 16 to address whether parents convicted of illegal reentry under 8 U.S.C. § 1326 are entitled 17 to class membership. Defendants filed a response to that brief on October 16, 2019. During 18 a subsequent status conference, Plaintiffs requested an opportunity to file a supplemental 19 brief directed to Defendants’ then-recently produced separation protocols and practices set 20 out in the CBP Interim Guidance Memorandum and other documents, which the Court 21 granted. The Court also gave Defendants an opportunity to file a supplemental response 22 /// 23 24 25 26 27 28 4 When the present motion was filed on July 30, 2019, the number of exclusions was 911: 678 based on allegations of criminal conduct, seventy-one (71) based on gang affiliation, twenty (20) based on lack of fitness or child safety concerns, forty-six (46) based on “unverified familial relationships,” and twenty-four (24) based on illness. (Mot. at 7.) In the reply brief, filed on September 18, 2019, Plaintiffs assert the number was then “approximately 1,000[.]” (Reply at 1.) 7 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9064 Page 8 of 26 1 to Plaintiffs’ brief, which Defendants did on October 31, 2019. The motion has been fully 2 briefed and argued and is now granted in part and denied in part as discussed below. 3 II. 4 DISCUSSION 5 Read together, the orders on class certification and preliminary injunction set out 6 five criteria to be considered by DHS before an adult may be separated from his or her 7 child at the border: lack of parentage or fitness, criminal history, communicable disease, 8 and danger to the child.5 Plaintiffs argue Defendants’ application of these factors is 9 resulting in exclusion from the Ms. L. class and continued, unconstitutional separations of 10 parents from their minor children. Plaintiffs also assert Defendants’ standards for 11 placement in family residential centers (“FRCs”) are causing unconstitutional separations 12 of fit parents who pose no danger to their children. 13 Before turning to the five factors identified above, the Court first clarifies the 14 standard for separating parents and children at the border, as that standard informs the 15 remaining discussion. Since the beginning of this case, Plaintiffs have argued the right to 16 family integrity is protected by the Due Process Clause of the Constitution, and the 17 government may not separate a parent from his or her child absent a showing the parent is 18 unfit or presents a danger to the child. The first of these arguments is not disputed. As 19 stated in the Court’s order denying Defendants’ motion to dismiss, “it has long been settled 20 that the liberty interest identified in the Fifth Amendment provides a right to family 21 integrity or to familial association.” (ECF No. 71 at 14.) What is disputed is whether, and 22 to what extent, that right applies to the facts presented here, namely, to immigrant families 23 taken into government custody while crossing the United States-Mexico border. 24 25 26 27 28 5 The preliminary injunction prohibits separation absent a finding the parent is unfit or presents a danger to the child, while the class certification orders limit application of the preliminary injunction to certain individuals: adult parents at the border who do not have a criminal history or communicable disease. 8 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9065 Page 9 of 26 1 In the order on Defendants’ motion to dismiss, the Court found Plaintiffs had alleged 2 sufficient facts to state a due process claim under the circumstances of this case, and further 3 found the standard applicable to this claim was whether the government conduct at issue, 4 namely the separation of parents and children at the border based on a nationwide policy 5 or practice to deter illegal immigration, “shocks the conscience.”6 In the present motion, 6 Plaintiffs urge the Court, as they have done throughout this case, to adopt a different 7 standard, namely, that the separation of a parent from his or her minor child violates due 8 process absent a showing the parent is unfit or presents a danger to the child. In support, 9 Plaintiffs cite Quilloin v. Wolcott, 434 U.S. 246, 255 (1978) (quoting Smith v. Organization 10 of Foster Families, 431 U.S. 816, 862-863 (1977)), which states “the Due Process Clause 11 would be offended ‘[i]f a State were to attempt to force the breakup of a natural family … 12 without some showing of unfitness[.]’” See also Brokaw v. Mercer County, 235 F.3d 1000, 13 1019 (7th Cir. 2000) (citing Croft v. Westmoreland County Children and Youth Services, 14 103 F.3d 1123, 1126 (3d Cir. 1997) (“courts have recognized that a state has no interest in 15 protecting children from their parents unless it has some definite and articulable evidence 16 giving rise to a reasonable suspicion that a child has been abused or is in imminent danger 17 of abuse.”). In other words, Plaintiffs argue these two factors, fitness and danger, are the 18 only valid government interests justifying the separation of a parent from his or her child. 19 However, this approach ignores that “the jurisprudence of substantive due process 20 is an exercise that is ‘highly dependent on context and detail.’” Aguilar v. U.S. Immigration 21 and Customs Enforcements Div. of Dep’t of Homeland Sec., 510 F.3d 1, 22 (1st Cir. 2007) 22 23 The Court also found the “shocks the conscious” standard applied to Defendants’ practice of separating parents for prosecution for improper entry and failing to reunify those families after the parent completed his or her criminal sentence and was returned to immigration detention. In that context, the initial separation of the parent for prosecution is lawful but the continued separation after completion of the criminal sentence is not unless the parent is determined to be unfit or a danger to the child. The present motion focuses on the initial separation of parents from their children at the border for reasons unrelated to prosecution for improper entry. 6 24 25 26 27 28 9 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9066 Page 10 of 26 1 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)). Here, the context is an 2 international border between the United States and Mexico, which hundreds, if not 3 thousands, of people cross every day. In this context, the government interests go well 4 beyond just the fitness and danger that a parent may present to his or her own child. Rather, 5 the government interests extend to securing the Nation’s borders and enforcing the 6 Nation’s criminal and immigration laws, and all that those interests entail, including 7 detention and parole determinations for migrants taken into custody. 8 Plaintiffs’ approach, by contrast, is based on the context of state child welfare 9 investigations. (See Reply at 1) (asking Court to “reiterate that the standard for separating 10 a child is the traditional due process standard used in the child welfare context: whether 11 there is objective evidence to believe that the parent is genuinely unfit or a danger to her 12 child.”) In that context, child protective service agencies are typically responding to 13 concerns for an individual child’s welfare and are tasked with determining whether an 14 individual parent or guardian is unfit or presents such a danger to their child that the child 15 should be removed from the parent’s custody. There, the state’s primary concern is the 16 best interests of the child. There are no national security concerns or concerns about 17 immigration or criminal law enforcement, and no concerns about detaining or paroling into 18 the community families and children without lawful status in the United States. 19 The unique circumstances of this case, namely the intersection of national security 20 at the border and the fundamental right to family integrity, do not lend themselves to 21 Plaintiffs’ approach. Rather, other factors besides fitness and danger must be taken into 22 consideration when deciding whether to separate parents and children in the context of this 23 case. This Court has determined those factors include parentage, criminal history and 24 communicable disease, in addition to fitness and danger. 25 With these principles in mind, the Court considers whether Defendants’ application 26 of these factors is consistent with this Court’s orders. Plaintiffs argue Defendants are 27 separating parents from their children for unjustified reasons, including dubious concerns 28 about parentage, arbitrary determinations regarding parents with emergency medical needs 10 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9067 Page 11 of 26 1 or treatable illness, minor crimes and questionable allegations of gang affiliation, dubious 2 fitness and danger determinations, and overbroad use of family detention standards as a 3 justification to separate families. Defendants respond that their application of the factors 4 has been consistent with the Court’s orders, and that further Court intervention is 5 unnecessary and unwarranted. Each of these arguments is discussed below. 6 A. Parentage 7 The first factor, of course, is parentage, and here, Plaintiffs state Defendants have 8 separated forty-six (46) parents based on “unverified familial relationship[s].” (Mot. at 7.) 9 Specifically, Plaintiffs identify two cases in which parents were separated from their 10 children for this reason, only to be reunified after a DNA test confirmed parentage. While 11 these cases are relatively few, they raise two significant issues. The first is whether 12 Defendants are required to use DNA testing before separating a parent and child based on 13 doubts about parentage. The second concerns the burden of proof. 14 On the first issue, Defendants explain that DHS has implemented a pilot program 15 using Rapid DNA technology, which can determine parentage in approximately ninety 16 minutes. (Opp’n to Mot. at 11.) This program has been implemented in seven locations 17 along the border, but Defendants state “operational concerns” have prevented a wholesale 18 adoption of this program across the entire border. (Id.) It is unclear exactly what these 19 “operational concerns” are, especially when it appears Defendants are preparing for DNA 20 testing of immigrants being held in detention centers across the country. See Daniella 21 Silva, Trump admin to broadly expand DNA collection of migrants in custody, NBC News 22 (October 2, 2019, 12:51 PM), https://www.nbcnews.com/news/us-news/trump-admin- 23 broadly-expand-dna-collection-migrants-custody-n1061471. Nevertheless, if testing is not 24 available at a particular facility, Defendants can transfer the family to a facility where that 25 testing is available, or take swabs from the parent and child and send the swabs for testing, 26 as they did with Ms. L. and her daughter. Given the right at issue here, the harm that 27 parents and children suffer when they are separated, and the undisputed speed, accuracy 28 and availability of DNA testing, the Court finds Defendants must conduct DNA testing 11 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9068 Page 12 of 26 1 before separating an adult from a child based on parentage concerns. Such testing, in 2 service to the fundamental right at issue, is clearly warranted. It is also an efficient and 3 definitive way to resolve any concerns about fraudulent documentation. (See Opp’n to 4 Mot., Ex. 2 (Decl. of Lloyd Easterling, Div. Chief, U.S. Border Patrol, RGV Sector 5 (“Easterling Decl.”) ¶¶ 34-36 (explaining CBP concerns about fraudulent documentation 6 and child trafficking, efforts to verify validity of documents through the consulate and other 7 law enforcement agencies, and transfer of child to ORR when parentage “cannot be 8 validated within a reasonable period of time.”) 9 The answer to the second issue follows logically from the first: Defendants bear the 10 burden to show that an adult is not the parent before removing the child from the adult’s 11 custody. While Defendants’ guidelines provide that CBP must “clearly establish[] that the 12 familial relationship is not bonafide” before making a separation decision, (see ECF No. 13 489 (Memorandum from Todd A. Hoffman, Executive Director, Office of Field Operations 14 to Directors, Field Operations (Oct. 1, 2018)), it appears that guideline is not being 15 followed when parentage “cannot be validated” in a reasonable period. 16 As discussed, the personal right at issue here, to family integrity and familial 17 association, is “constitutionally protected[,]” Quilloin, 434 U.S. at 255, and finds its source 18 “in intrinsic human rights, as they have been understood in ‘this Nation’s history and 19 tradition.’” Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 845 20 (1977) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)). When the 21 importance of this right is combined with the circumstances in which these parents find 22 themselves, namely an unfamiliar custodial setting without access to resources other than 23 their own paperwork, if any, and where Defendants have the ability to resolve any concerns 24 about parentage quickly and inexpensively through the use of DNA testing, Defendants, 25 not Plaintiffs, bear the burden to prove lack of parentage before making a separation 26 decision. Subjective concerns about parentage—or inability to validate documentation— 27 are an insufficient basis for separation when those concerns can be definitively addressed 28 through use of readily accessible, inexpensive and accurate scientific testing. 12 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9069 Page 13 of 26 1 B. Communicable Disease 2 The next factor is communicable disease, and here Plaintiffs state Defendants have 3 separated twenty-four (24) parents due to “illness.” Of these twenty-four, Plaintiffs point 4 out two cases of concern. First, they complain about a father who was separated from his 5 child because he has HIV. (Mot. at 10.) Defendants acknowledge that parent was excluded 6 from the class “in error.” (Opp’n to Mot. at 22 n.9.) 7 Second, Plaintiffs complain about a mother who was hospitalized for emergency 8 surgery and whose child was placed in ORR custody as a result. (Mot. at 10.) Plaintiffs 9 complain that when the mother was released from the hospital into the community, she was 10 not reunified with her child in a timely manner, and the mother and her child were only 11 reunified after Plaintiffs informed Defendants that the child’s lawyer had prepared a motion 12 for the child’s release to the mother. (Id. at 10-11.) Here, again, Defendants concede error. 13 Specifically, they state the mother was mistakenly informed she would have to go through 14 the typical ORR screening process designed for “unaccompanied alien children” set out in 15 the Trafficking Victims Protection and Reauthorization Act (“TVPRA”), Pub. L. No. 110- 16 457 (Dec. 23, 2008), rather than the “Ms. L. reunification protocols” set out by the Court, 17 to regain custody of her child. (Opp’n to Mot. at 9 n.3.) The child also was not placed in 18 an ORR facility near the mother’s hospital. (Id. at 21.) Defendants explain the measures 19 they have taken to avoid any recurrence of that situation. (Id. at 9 n.3.) They also explain 20 that when a parent is hospitalized, DHS and ORR have been “work[ing] together to make 21 efforts to place the child in ORR custody near the location where the parent is hospitalized 22 to allow for reunification,” and that the situation described here was an anomaly. (Id. at 23 21.) These efforts are consistent with Defendants’ interim guidelines. (See Opp’n., Ex. 4 24 (CBP Interim Guidance Memorandum) (stating where parent “has an urgent medical need 25 that is not a communicable disease, officers and agents should attempt to keep the family 26 together in CBP custody, or parole both for medical care or contact the local Office of 27 Chief Counsel.”)) 28 /// 13 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9070 Page 14 of 26 1 While each of the above cases resulted in unwarranted separations, they also reflect 2 Defendants’ efforts to ensure those mistakes are not repeated and the importance of 3 Plaintiffs’ oversight. These two cases also demonstrate what can be accomplished when 4 the parties exchange information and work together. Based on the present record, the Court 5 declines to find Defendants are in violation of the Court’s orders with respect to the 6 communicable disease factor. 7 C. Criminal History 8 The next factor is criminal history, which is of primary concern to Plaintiffs, likely 9 because it has resulted in the largest number of family separations: nearly 750 from June 10 26, 2018, through June 29, 2019. On this factor, there are three primary disputes: (1) 11 whether the criminal history exclusion applies to any criminal history or only criminal 12 history bearing on a parent’s fitness or danger; (2) whether a conviction for illegal reentry 13 under 8 U.S.C. § 1326 may be a basis for exclusion from the class; and (3) the standards 14 for separating a parent and child based on gang affiliation. 15 1. 16 Although Plaintiffs concede that parents with criminal history were excluded from 17 the class, they argue that exclusion was limited to criminal history bearing on the parent’s 18 fitness and danger, not just any criminal history. 19 interpretation of the Court’s orders. They assert any criminal history may be a basis for 20 excluding a parent from the class. Notably, however, Defendants state they are not 21 excluding parents with any criminal history. Rather, they are excluding only those parents 22 “whose criminal history, in a good-faith discretionary determination by DHS, would 23 generally prevent them from being released into the community and from being housed in 24 an ICE FRC.” (Opp’n to Mot. at 18.) In other words, Defendants state they are including 25 many parents in the class even though they have minor criminal history. That assertion is 26 consistent with CBP guidelines. (See Opp’n to Mot., Ex. 4 (CBP Interim Guidance 27 /// 28 /// Scope of the Criminal History Exclusion Defendants disagree with that 14 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9071 Page 15 of 26 1 Memorandum) (directing that a parent should not be separated from his or her minor child 2 unless he or she has a criminal conviction for “violent misdemeanors or felonies.”7)) 3 The present motion is not the first time the Court has been asked to decide a dispute 4 over exclusions from the class based on criminal history. 5 reunification efforts were completed, Plaintiffs filed a motion concerning two parents who 6 had been excluded from the class, and therefore denied reunification with their children, 7 based on their criminal history. (See ECF No. 221.) In that motion, Plaintiffs argued 8 Defendants’ interpretation of the criminal history exclusion was too broad, and that the 9 criminal histories at issue—an arrest warrant out of El Salvador for being a member of the 10 MS-13 gang, and an eight year old misdemeanor domestic violence conviction for 11 swinging a machete at his spouse—were insufficient bases for exclusion. In the order on 12 that motion, the Court noted the parties had debated the criminal history exclusion prior to 13 issuance of the class certification order, with Plaintiffs expressing concern that 14 “Defendants would abuse their discretion and exclude parents with minor misdemeanors, 15 while Defendants were concerned with their ability to make detention decisions for 16 ‘individuals who posed a flight risk or danger to the community or others in a family 17 detention facility because of that person’s criminal history.’” (ECF No. 236 at 2 (citation 18 omitted).) The Court further noted the well-established principle that matters of detention 19 and parole are within the province of the Executive Branch. (Id.) See, e.g., 8 U.S.C. § 20 1231(g)(1) (stating the “Attorney General shall arrange for appropriate places of detention 21 for aliens detained pending removal or a decision on removal.”); Comm. Of Cent. Am 22 Refugees v. I.N.S., 795 F.2d 1434 (9th Cir. 1986) (stating Attorney General has broad 23 discretion in deciding where to house deportable aliens). Ultimately, the Court denied Shortly after the initial 24 25 “Violent misdemeanors” generally include offenses such as “assault, battery, burglary, resisting arrest, hit and run, and disorderly conduct.” (See Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 16.) “Simple thefts, fraud crimes, minor drug or traffic crimes, or driving while intoxicated (without an aggravating factor) are examples of offenses that would not generally justify separation.” (Id.) 7 26 27 28 15 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9072 Page 16 of 26 1 Plaintiffs’ motion to include these parents in the class, and declined to interfere with 2 Defendants’ determination that the two parents had “disqualifying criminal history that 3 precludes reunification with the children and either release into the community or detention 4 in a family residential center.” (ECF No. 236 at 3.) 5 As with Plaintiffs’ previous motion on this issue, the Court again agrees with 6 Defendants that parents may be excluded from the class based on any criminal history, not 7 just criminal history that bears on a parent’s fitness or danger. Plaintiffs’ approach ignores 8 the context of this case. This case does not involve individual issues of child welfare that 9 typically confront child protective service agencies. Rather, the system at issue in this case 10 involves CBP officers making decisions about hundreds, sometimes thousands, of people 11 crossing daily at the border. Given the large number of migrant families arriving at the 12 border and the inherent limitations placed on CBP facilities at the border,8 Defendants must 13 be able to use criminal history as an objective metric not only to assess the parent’s fitness 14 and danger to the child, but also risk of flight, danger to others and suitability for release 15 into the community or placement in an FRC with other families. Factually, this case is not 16 amenable to Plaintiffs’ proposed approach. 17 The procedural posture of the case also fails to lend support to Plaintiffs’ approach. 18 Procedurally, this case is proceeding as a class action on Plaintiffs’ substantive due process 19 20 21 22 23 24 25 26 27 28 8 (See Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 5) (stating “Border Patrol stations are designed for short-term custody. For multiple reasons (a high number of individuals arrested on a daily basis; time-in-custody requirements imposed by the [TVPRA]; the Flores Stipulated Settlement Agreement; the need to ensure that individuals referred for prosecution are promptly presented before a Magistrate Judge; and the general fact that Border Patrol Stations were not designed to hold individuals—particularly children—for a long period of time) Border Patrol Agents process all individuals as expeditiously as possible and make every effort to transfer them to facilities that are more appropriate for longer-term detention (such as those run by … [ICE and ORR]). Therefore, agents must often make processing determinations based on the limited information available to them at the time of encounter.”) 16 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9073 Page 17 of 26 1 claim. In granting class certification, the Court excluded from the class parents with 2 criminal history because including them would have destroyed the commonality 3 requirement. That requirement was met based on Defendants’ practice or policy of family 4 separation to deter immigration, not individual decisions about a parent’s criminal history. 5 Plaintiffs’ approach ignores the criminal history carve out, and jeopardizes the class’s 6 status because it invites individualized determinations about the reasons for family 7 separations rather than focusing on the common policy. 8 Defendants’ focus on violent misdemeanors and felonies when evaluating a parent’s 9 criminal history and determining whether a parent should be separated from his or her child 10 indicates good faith and compliance with the Court’s orders. For these reasons, the Court 11 declines to adopt Plaintiffs’ approach to the scope of the criminal history exclusion. 12 2. 13 Turning to the next issue, the parties agree there is one exception to the criminal 14 history exclusion: illegal entry into the United States under 8 U.S.C. § 1325. (See Opp’n 15 to Mot. at 18 n.6) (stating Defendants have been treating parents with section 1325 16 convictions “as class members eligible for relief under the preliminary injunction.”)) See 17 also Exec. Order No. 13841, § 3 (stating the Secretary of Homeland Security shall “to the 18 extent permitted by law and subject to the availability of appropriations, maintain custody 19 of alien families during the pendency of any criminal improper entry [§ 1325] or 20 immigration proceedings involving their [family] members.”); OIG DHS Report 21 (11/27/19) (stating prior to zero tolerance policy, “in most instances, family units either 22 remained together in family detention centers operated by ICE while their civil 23 immigration cases were pending, or they were released into the United States with orders 24 to appear in immigration court at a later date.”) The parties do not agree, however, on 25 whether convictions for illegal reentry under 8 U.S.C. § 1326 qualify for an exception. 26 This issue first came up during a July 16, 2018 hearing. (See ECF No. 117 at 53.) During 27 that hearing, Plaintiffs sought clarification from Defendants on whether parents with § 28 1326 violations were being excluded from the class. Based on testimony at that hearing, 8 U.S.C. § 1326 17 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9074 Page 18 of 26 1 the Court made “the assumption that 1325, 1326 collectively would not exclude[,]” but left 2 counsel to meet and confer on that issue. (Id.) 3 4 In their opposition to the present motion, Defendants propose the following for parents with § 1326 convictions: 5 6 7 8 9 10 11 12 13 [During or immediately following] service of any sentence for a section 1326 conviction, Defendants will endeavor to promptly complete the removal process consistent with applicable law, including processing the parent for reinstatement of removal under 8 U.S.C. § 1231(a)(5). Should the parent become subject to an executable removal order (e.g., no pending reasonable fear claim or withholding only proceedings before the Executive Office for Immigration Review), the government anticipates offering the parent the choice whether to be removed with his or her child or to allow the child to remain in the United States to pursue any immigration claims that the child may have. (Id. at 19 n.7.) 14 Plaintiffs urge the Court to reject this proposal, and instead “reiterate” that § 1326 15 convictions, like § 1325 convictions, are not a basis for exclusion from the class. (Reply 16 at 14.) Counsel for the settlement class of children in the MMM/Dora cases also object to 17 Defendants’ proposal on the ground it could “prevent[ ] separated children and their parents 18 from meaningfully exercising their rights to seek relief from removal.” (ECF No. 480 at 19 1.) They propose an alternate process for parents with § 1326 convictions “in which parents 20 and children jointly decide on reunification, and have the option to reunify for a joint 21 reasonable fear and credible fear screening, [which] would avoid violating parents’ and 22 childrens’ right to seek relief from removal.” (Id.) Alternatively MMM/Dora counsel 23 request that the Court defer ruling on this issue so the parties can continue to meet and 24 confer. (Id. at 2.) 25 This issue has been percolating for well over a year now despite the parties’ efforts 26 to come to an agreement, so the Court addresses it now. At first glance, it appears § 1326 27 convictions should be treated the same as § 1325 convictions for purposes of this case 28 because both statutes criminalize the same general conduct, namely illegal entry into the 18 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9075 Page 19 of 26 1 United States. But there are differences, and some of them are significant. Section 1325 2 is charged as a misdemeanor with up to six months imprisonment for the first improper 3 entry offense and may be charged as a felony with up to two years imprisonment for a 4 second improper entry offense, while § 1326 is only chargeable as a felony and carries a 5 statutory maximum sentence of two, ten or twenty years imprisonment depending on a 6 person’s immigration and criminal history. Also, unlike § 1325, which concerns unlawful 7 entry and no prior removal, § 1326 concerns unlawful reentry, which indicates a prior 8 removal (deportation) and often other criminal history. A § 1326 conviction also impacts 9 a person’s options under the immigration laws. (See Defs.’ Resp. to MMM Br. at 3) (stating 10 “violation of section 1326 is a serious felony and those who illegally re-enter and whose 11 previous orders of removal are reinstated are barred from seeking asylum”). Thus, 12 although § 1325 and § 1326 convictions concern the same conduct in the abstract, the 13 repetitive nature of the conduct underlying § 1326, including prior removal(s) and possible 14 prior conviction(s), calls for different treatment of that offense in this case. 15 Defendants are therefore justified in excluding from the class parents who are 16 separated from their children at the border as a result of the parent being charged, convicted 17 and sentenced under § 1326, as well as parents who have a prior § 1326 conviction.9 Absent 18 membership in the class, these parents would not be entitled to the relief provided by the 19 Court’s orders in Ms. L. and MMM/Dora. Nevertheless, Defendants agree that if these 20 21 9 22 23 24 25 26 27 28 It appears the exclusion of parents with a prior illegal reentry offense from the Ms. L. class may impact relatively few. If a parent “has criminal history consisting only of a prior conviction for 8 U.S.C. § 1326 …, RGV Sector [Texas] does not, in general, separate the parent from the child.” (See Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 21.) An “alien parent’s prior immigration history, standing alone, is not used as a basis to justify separation from an alien child.” (Id. ¶ 4.) In addition, the number of cases the U.S. Attorney’s Office elects to prosecute for § 1326 of parents crossing with their children appears to be relatively small. (Id. ¶ 21) (stating in “fiscal year 2019 (through August 27, 2019), RGV Sector processed 10,809 parents accompanying children for reinstatement of removal because of prior removal orders. CBP’s statistics reflect that only 140 of these parents (1.3%) were actually prosecuted for illegal reentry under 8 U.S.C. § 1326.”) 19 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9076 Page 20 of 26 1 parents become subject to an executable removal order, they will offer these parents “the 2 choice whether to be removed with [their] child or to allow the child to remain in the United 3 States to pursue any immigration claims the child may have.” (Opp’n to Mot. at 19 n.7.) 4 Although Plaintiffs and MMM/Dora counsel object to this proposal, it is consistent with 5 the Court’s orders in this case. 6 3. 7 Of the nearly 750 parents separated from their children based on criminal history, 8 Plaintiffs contend thirty-seven (37) of them have been separated based on gang affiliation 9 alone. (Mot. at 25.) As noted, the issue of gang affiliation came before the Court on 10 Plaintiffs’ previous motion to reunify a parent who had been separated from her child based 11 on a warrant out of El Salvador alleging she was affiliated with a violent gang. (See ECF 12 No. 221 at 4.) There, Plaintiffs disputed the allegation, but the Court declined to order 13 reunification, and deferred to Defendants’ determination that the mother’s criminal history 14 precluded reunification with her child and either release into the community or detention 15 in a family residential center. (ECF No. 236 at 3.) Gang Affiliation 16 Here, Plaintiffs argue that Defendants are separating parents and children based 17 solely on unsupported allegations of gang affiliation, and that evidence collected after the 18 separations demonstrates those initial determinations of gang affiliation are incorrect. The 19 record does not support Plaintiffs’ first argument that these decisions are being made on 20 speculation of gang affiliation. Rather, the record reflects that as part of the intake process, 21 border patrol agents may receive information “from foreign governments and other law 22 enforcement databases” indicating “that an individual has been identified as affiliated with 23 a criminal gang[.]” (Opp’n. to Mot., Ex. 2 (Easterling Decl.) ¶ 20.) Although Plaintiffs 24 complain about the reliability of this evidence, Defendants are relying on objective 25 evidence, not allegations or intuition. 26 Although the initial evidence of gang affiliation may turn out to be inaccurate, border 27 officials have limited information during the intake process and limited time to further 28 investigate at that stage. (Id. ¶18.) The record also reflects that when the families or their 20 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9077 Page 21 of 26 1 attorneys have subsequently obtained evidence refuting or qualifying allegations of gang 2 affiliation, Defendants have reunified the parents and children when appropriate. On this 3 record, where Defendants are relying on foreign records or other law enforcement 4 databases, and not subjective concerns about gang affiliation, and where the parties have 5 successfully resolved disputed cases, the Court declines to find Defendants are violating 6 the Court’s preliminary injunction with respect to gang affiliation. 7 D. Fitness and Danger 8 The next area of dispute concerns fitness and danger. Plaintiffs assert that during 9 the timeframe in question Defendants have separated twenty (20) families based on 10 “dubious” and “questionable” determinations of fitness and danger. Defendants assert they 11 are exercising their discretion and judgment in a reasonable manner, and that the Court 12 should decline to second-guess those determinations. 13 According to Defendants, the determination that a parent is unfit or presents a danger 14 to his or her child is made after evaluating the particular circumstances of an individual 15 case. (Opp’n to Mot. at 6.) As for the substantive decision, Defendants state: 16 17 18 19 [A]gents and officers may make the decision on a review of any available records about the parent, as well as observations made while the parent and child are in DHS custody, including immediately following the initial encounter with the family, and the views of medical professionals available to the officers and agents. 20 (Id. at 6.) In addition, decisions to separate must be reviewed and approved by a supervisor, 21 and CBP’s Office of Chief Counsel is often involved. (Id. at 7-8.) 22 The factual circumstances under which these initial determinations are made do not 23 lend themselves to micromanagement by the Court. This is especially so given the class 24 action nature of this case. Defendants must be allowed discretion to make these decisions 25 based on the available information. Concerns about lack of fitness and danger to a child 26 often overlap and include many scenarios that are difficult to assess under ideal 27 circumstances, let alone at the border: mental disorders, active users of illicit controlled 28 substances, odd behavior (e.g., climbing cell fencing and feigning passing out), and 21 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9078 Page 22 of 26 1 potential criminal activity, including child trafficking, sexual abuse and physical abuse. 2 (See Opp’n., Ex. 2 (Easterling Decl.) ¶¶ 25-29). The Court expects that field officers and 3 agents and medical professionals will exercise their discretion in a reasonable manner 4 based on the evidence then available, and that the reasonableness of those decisions will 5 be reviewed by appropriate supervisors before separation decisions are made. 6 expected the parties will meet and confer on disputed findings of fitness and danger, as 7 they have been doing on the issues of communicable disease and gang affiliation. Given 8 the intensely factual nature of these decisions and the processes now in place for parents to 9 challenge such decisions, (see ECF No. 489 (Memorandum from Carla L. Prevost, Chief, 10 U.S. Border Patrol to All Chief Patrol Agents and All Directorate Chiefs (Sep. 16, 2019) 11 (“Prevost Memo”) (explaining and attaching “Tear Sheet,” which informs a parent who 12 has been separated from his or her child of the reasons for separation, how to contact their 13 child and how to contest separation from their child)),10 the Court declines to find 14 Defendants are violating the injunction with respect to this factor. 15 E. It is FRC Standards 16 The final issue is Defendants’ standards for placement in FRCs. Specifically, 17 Plaintiffs assert those standards are vague and inconsistent, and result in unconstitutional 18 separations of parents and children. 19 Notably, the claims in this case do not challenge Defendants’ FRC standards. 20 Rather, this case has always focused on Defendants’ general practices of separating parents 21 and children at the border for reasons other than the FRC standards. In other words, the 22 23 24 25 26 27 28 The Tear Sheet advises parents: “If you believe that your separation from your child was improper and would like to provide the government with additional information, you may submit that information to SeparationSupplementalInformation@ice.dhs.gov. DHS will review any information submitted within 30 days and, if DHS determines some further action is appropriate, you will be so informed.” The “Separation Supplemental Information Form” informs the parent how to challenge the separation decision and request reunification. 10 22 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9079 Page 23 of 26 1 FRC standards are not the basis for Plaintiffs’ claims, nor have they been the subject of this 2 Court’s previous orders. Defendants must be able to consider danger to others and risk of 3 flight in addition to fitness and danger of a parent to his or her own child. (See Opp’n to 4 Mot., Ex. 5 (Decl. of Melissa Harper) ¶¶6-7, 10 (stating parents with criminal history or 5 gang affiliation are generally excluded from FRCs because of risk of flight and harm to 6 families, though in exceptional cases a parent with a non-violent misdemeanor offense may 7 be admitted.))11 Careful assessment of all of these factors is necessary in the context of 8 this case and may result in separation of a parent who is otherwise fit and not a danger to 9 his or her own child but poses an unacceptable risk to others or of flight. Given the scope 10 of this case and the statutory framework providing discretion to Executive Branch officials 11 in matters of detention and parole, see 8 U.S.C. § 1231(g)(1), the Court declines to wade 12 into the constitutionality of the FRC standards on the present record. 13 Plaintiffs also argue that by using any criminal history, Defendants can take a parent 14 out of the class and absolve themselves “of any obligation to immediately reunify the 15 family when the parent is released from an adult detention center [by an immigration judge] 16 (which happens frequently when the government cannot show that the parent is a flight risk 17 or danger [to others]”).” (See Suppl. Br. at 1-2.) Plaintiffs argue that parents who are 18 excluded from FRCs but later released from immigration detention are not being reunified 19 with their children during the pendency of their immigration proceedings. 20 agrees with Plaintiffs that if a parent who is separated from his or her child due to FRC 21 standards is subsequently released from custody, then Defendants should reunify that 22 parent with his or her child in the same way they are reunifying families with resolved The Court 23 24 25 26 27 28 Defendants assert FRCs are governed by standards that are designed to “promote a unique, non-secure, open-movement environment which permits parents and children to live in a dorm-like setting with access to education, recreational opportunities, and health care on site.” (See Opp’n to Mot., Ex. 5 (Harper Decl. ¶ 4.)) The safety of family residents is also regulated by state licensing requirements that impose “legal prohibitions on criminal individuals living, visiting or working at such licensed facilities.” (Id. ¶¶ 8-9.) 11 23 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9080 Page 24 of 26 1 communicable diseases or long-term illnesses. (See ECF No. 489 (Prevost Memo, Tear 2 Sheet) (informing parents that “following the conclusion of any criminal custody or 3 hospitalization” the parent will be transferred to ICE custody and DHS and ICE “will take 4 steps to determine whether you may be reunified with your child or children.”)) This 5 clarification does not interfere with Defendants’ discretion in matters of parole or 6 detention. CBP’s initial determination to detain the parent remains undisturbed until 7 another Executive Branch officer (an immigration judge) decides later based on additional 8 information to release the parent on bond or other appropriate conditions pending their 9 removal proceedings. Should Defendants fail to reunify parents under these circumstances, 10 parents can also now avail themselves of the “Tear Sheet” process, by which they can 11 make application for and be reunified with their children. Except for this clarification, the 12 Court declines to intervene further on this issue. 13 III. 14 CONCLUSION 15 Plaintiffs assert Defendants have returned to systematically separating families at 16 the border. However, the evidence before the Court does not support that assertion. 17 Although family separations have not stopped entirely, the number of family separations 18 compared to the number of family units crossing the border appears to be less than one 19 percent.12 Furthermore, the Executive Order abandoned the zero tolerance policy in favor 20 of a policy to maintain family unity, and Defendants have implemented policies and 21 22 23 24 25 26 27 28 12 Defendants represent that the number of parents separated from their children between June 27, 2018, and July 20, 2019, is less than .4% of the overall number of individuals entering the United States as members of a family unit over the same time period. (Opp’n to Mot. at 1.) Defendants state that during “an almost overlapping timeframe, from July 1, 2018 through July 30, 2019, … CBP data reflects that 524,294 individuals have crossed the southwest border at or between ports of entry as a member of a family unit[.]” (Id. at 5.) See also Innovation Law Lab v. McAleenan, 924 F.3d 503, 510 (9th Cir. 2019) (noting that for several months in 2018, approximately 2,000 migrants were “arriving at the Nation’s southern border on a daily basis”). 24 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9081 Page 25 of 26 1 procedures that are largely consistent with this Court’s orders prohibiting family separation 2 in the absence of the factors discussed above. Defendants have also gone beyond the scope 3 of the Court’s injunction and implemented additional practices related to family 4 separations, such as the Tear Sheet, which provide parents with the reasons for any 5 separations and information on how to challenge any separation decisions. 6 In the present motion, Plaintiffs invite the Court to engage in prospective oversight 7 of Defendants’ separation decisions, but that invitation warrants caution. It is an invitation 8 that is potentially massive in scope, invades an area that is particularly within the province 9 of the Executive Branch to secure the Nation’s border, and goes beyond this Court’s class 10 certification and preliminary injunction orders, which were focused on the 11 Administration’s practice of separating families at the border for the purpose of deterring 12 immigration, and failing to reunify those families.13 The Court is satisfied that the factors 13 discussed above provide an appropriate balance between the constitutional right to family 14 integrity and the government’s interests in border security and criminal and immigration 15 law enforcement. See J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997) 16 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)) (stating evaluation of party’s 17 “substantive due process rights require[s] a ‘balancing [of the party’s] liberty interests 18 against the relevant state interests.’”) Except for DNA testing and the clarification 19 regarding FRC standards, Defendants’ application of these factors has generally been 20 /// 21 22 23 24 25 26 27 28 Although the Court previously examined Defendants’ conduct in determining compliance with the preliminary injunction, that scrutiny occurred in a limited context— i.e., whether Defendants’ exclusion of parents from the original class of 2,814 was proper based on their criminal history. That examination was retrospective, confined to two parents, and concerned reunification. In contrast, Plaintiffs’ present motion invites the Court to set out additional “guidelines” for DHS to use before separating a family unit and, if necessary, to appoint a monitor to oversee DHS’s exercise of discretion in making those decisions for hundreds of thousands of migrant families arriving at the border. That is unwarranted on the present record. 13 25 18cv0428 DMS (MDD) Case 3:18-cv-00428-DMS-MDD Document 509 Filed 01/13/20 PageID.9082 Page 26 of 26 1 consistent with this Court’s orders and thus Plaintiffs’ motion to enforce the preliminary 2 injunction is otherwise respectfully denied. 3 4 IT IS SO ORDERED. Dated: January 13, 2020 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 18cv0428 DMS (MDD)