Case 2:85-cv-04544-DMG-AGR Document 833 Filed 06/26/20 Page 1 of 7 Page ID #:38477

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Date

Title Jenny L. Flores, et al. v. William P. Barr, et al.
Present: The Honorable

June 26, 2020
Page

1 of 7

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS—ORDER RE UPDATED JUVENILE COORDINATOR
REPORTS [808, 813]
On May 15, 2020, the Juvenile Coordinators for Defendants Immigration and Customs
Enforcement (“ICE”) and Office of Refugee Resettlement (“ORR”) filed interim reports in
accordance with the Court’s April 24, 2020 Order granting Plaintiffs’ Motion to Enforce the Flores
Settlement Agreement (“FSA”) in light of the COVID-19 public health crisis. [Doc. # 788.] Due
to concerns about Defendants’ compliance with the FSA, guidance by the Centers for Disease
Control and Prevention (“CDC”), and Court orders, on May 22, 2020, the Court ordered that the
Juvenile Coordinators file updated reports by June 8, 2020, covering the topics listed in the April
24, 2020 Order and providing specific explanations for delays in releasing Class Members. [Doc.
# 799.] The Court’s Order also provided for enhanced monitoring of ICE Family Residential
Centers (“FRCs”) by the Independent Monitor Andrea Ordin and Dr. Paul Wise. May 22, 2020
Order at 3.
ORR Juvenile Coordinator Aurora Miranda-Maese filed the ORR updated report on June
7, 2020, and ICE Juvenile Coordinator Deane Dougherty filed the ICE updated report on June 10,
2020. [Doc. ## 808, 813.] Plaintiffs filed responses to both reports. [Doc. ## 823, 824.] In
addition, Independent Monitor Andrea Ordin and Dr. Paul Wise filed an Interim Report on
COVID-19 [Doc. # 827], and Aldea – The People’s Justice Center, Proyecto Dilley, and the
Refugee and Immigrant Center for Education and Legal Services (“RAICES”), which provide
legal services for Class Members and their parents in the ICE FRCs, filed an amicus curiae brief
[Doc. # 831].
As has been previously stated, the Court appreciates both ICE’s and ORR’s efforts to
reduce the number of Class Members in their custody during the pandemic. As of June 8, 2020,
there were 124 Class Members in ICE custody. [Doc. # 813.] As of June 7, 2020, 1,077 Class
Members were in ORR care—including 507 Class Members in shelters and 21 in staff secure

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

 Case 2:85-cv-04544-DMG-AGR Document 833 Filed 06/26/20 Page 2 of 7 Page ID #:38478

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Date

June 26, 2020
Page

2 of 7

facilities.1 [Doc. # 808.] Although progress has been made, the Court is not surprised that COVID19 has arrived at both the FRCs and ORR facilities, as health professionals have warned all along
that individuals living in congregate settings are more vulnerable to the virus. As of June 25, 2020,
at least 11 people detained at Karnes FRC have been diagnosed with COVID-19. See Independent
Monitor’s Interim Report at 10 [Doc. # 827]. Test results for residents of the South Texas FRC
(“Dilley”) remain pending, though four employees at Dilley already have tested positive. Id. at 9.
The recent increases in COVID-19 infection rates in the counties in which Karnes and Dilley are
located give the Independent Monitor, Dr. Wise, and the Court even more cause for concern. Id.
Although no COVID-19 cases have been reported yet at Berks FRC, six children were afflicted
with viral stomatitis in or about April 2020, further demonstrating the ease with which contagion
can spread in congregate settings. Cambria Decl. at ¶¶ 31-36 [Doc. # 831-1]. The FRCs are “on
fire” and there is no more time for half measures.2
Additionally, Plaintiffs have identified issues, mistakes, or omissions in both the ORR and
ICE Juvenile Coordinators’ reports. Plaintiffs argue that ORR’s onerous approval chain for a
sponsor to obtain a fingerprinting waiver may be redundant and prolong the detention of otherwise
releasable Class Members, in violation of the FSA’s prohibition on unnecessary delay. Pl.’s
Response to ORR Second Report at 3-4 [Doc. # 823]; see also FSA at ¶ 14 [Doc. # 101]. Plaintiffs
also critique the ORR report for lack of specificity and even erroneous conclusions regarding
certain minors, which may have resulted in unnecessary delay. Id. at 6-8.
Still, ORR’s potential violations of the FSA pale in comparison to issues raised by
Plaintiffs, amici curiae, the Independent Monitor, and Dr. Wise regarding ICE’s incomplete,
infrequent, and at times, inaccurate, parole determinations and failure to implement best public
health practices. See Pl.’s Response to ICE Second Report at 9-12 [Doc. # 824]; Br. of Amici
Aldea, Proyecto Dilley, and RAICES at 6-8 [Doc. # 831]; Independent Monitor’s Interim Report
at 7-10. Amici identify potential errors in the ICE Juvenile Coordinator’s report, particularly in
the Flores Release Summaries attached at Exhibit B, that may have resulted in certain Class
Members being kept in custody for arbitrary or inconsistent reasons. See, e.g., Meza Decl. at ¶ 18
[Doc. # 831-3] (describing Class Members detained awaiting court dates that had not yet been set);
Fluharty Decl. at ¶¶ 22-23 [Doc. # 831-3] (demonstrating ICE’s mistakes as to which families were
1

As a point of comparison, there were 185 Class Members at ICE FRCs as of May 15, 2020; 342 Class
Members as of April 21, 2020; and 648 Class Members as of March 28, 2020 [Doc. ## 788-1, 784, 768]. There were
1,418 Class Members in ORR custody as of May 14, 2020; 2,104 Class Members as of April 6, 2020; and 3,622 as of
March 13, 2020. [Doc. # 788-2; 740; ORR April 7, 2020 Report].
2

See Graves Decl. at ¶ 7 [Doc. # 774-3] (“Postponing the release of children in facilities with known COVID19 exposure is like leaving them in a burning house rather than going in to rescue them and take them to safety.”).
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CIVIL MINUTES—GENERAL

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 Case 2:85-cv-04544-DMG-AGR Document 833 Filed 06/26/20 Page 3 of 7 Page ID #:38479

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Date

June 26, 2020
Page

3 of 7

plaintiffs in federal litigation); id. at ¶¶ 24-27 (questioning why Class Members with a stay of
removal are described as being on the “next removal flight” to their country of origin). The
attorneys also assert that they have provided ICE with each Class Member’s sponsor information,
belying ICE’s assertion that some minors cannot be released due to lack of an identified caregiver.
See, e.g., Meza Decl. at ¶¶ 29-35; Fluharty Decl. at ¶ 28. As for public health measures, Dr. Wise
advised the Court that ICE’s critical areas of improvement are in social distancing, masking, and
testing—in other words, the basics. Thus, ICE’s compliance with Paragraphs 12, 14, and 18 of
the FSA remains at issue.
If they wish, Defendants shall have the opportunity to respond to the numerous and specific
critiques raised in the amicus brief and Plaintiffs’ replies.3 But in the interim, given the severity
of the outbreak in the counties in which FRCs are located and the Independent Monitor and Dr.
Wise’s observations of non-compliance or spotty compliance with masking and social distancing
rules, renewed and more vigorous efforts must be undertaken to transfer Class Members residing
at the FRCs to non-congregate settings through one of two means: (1) releasing minors to available
suitable sponsors or other non-congregate settings with the consent of their adult
guardians/parents; or (2) releasing the minors with their guardians/parents if ICE exercises its
discretion to release the adults or another Court finds that the conditions at these facilities warrant
the transfer of the adults to non-congregate settings.4 While the above should be undertaken with
all deliberate speed, in the meantime, ICE must also urgently implement the protocols
recommended by the CDC, rather than hiding behind unevenly implemented written protocols, in
order to comply with its obligation to provide safe and sanitary conditions for Class Members.
FSA at ¶ 12.
In light of the foregoing, the Court ORDERS the following:
1.

By July 17, 2020, ICE shall transfer Class Members who have resided at the FRCs
for more than 20 days to non-congregate settings through one of two means:
(1) releasing minors to available suitable sponsors or other available COVID-free
non-congregate settings with the consent of their adult guardians/parents; or
(2) releasing the minors with their guardians/parents if ICE exercises its discretion

3

ICE may also, if desired, respond to the issue of A.F.P.P.’s release from Cowlitz County Juvenile Detention
Center. Because A.F.P.P.’s case does not fall within the scope of any of the Court’s prior Orders, it should have been
raised with the Juvenile Coordinator and opposing counsel, not via declaration on the eve of a hearing. See Schey
Decl. [Doc. # 828]; March 22, 2020 Order at 4 (ordering the parties to meet and confer regarding the status of the
minors currently detained at juvenile detention facilities).
4

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See O.M.G. v. Wolf, CV 20-786-JEB (D.D.C. 2020).
CIVIL MINUTES—GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Date

June 26, 2020
Page

4 of 7

to release the adults or another Court finds that the conditions at these facilities
warrant the transfer of the adults to non-congregate settings. If it is deemed
necessary, ICE may apply location monitoring devices to those who are released.
2.

While the above efforts shall be undertaken with all deliberate speed, in the
meantime, ICE shall urgently enforce its existing COVID-19 protocols, particularly
in the following areas:
a. Social distancing: More effective use of the available space in the FRCs
should be implemented such that living quarters, bathroom facilities, eating
areas, and other communal areas are compatible with optimal social
distancing protocols. Spaced residential assignments, staggered bathing
and eating schedules, and sequenced use of other facility locations should
be implemented to permit greater distancing among residents.
b. Masking: Recommended masking protocols need to be enforced at all
times. Enhanced training regarding mask usage for all staff may be
necessary and oversight and documentation of compliance with these
protocols are indicated.
c. Enhanced testing: Greater use of testing should be implemented for staff,
new entrants, and residents as indicated by evolving CDC and local health
department guidelines for congregate care facilities.

3.

If they wish, Defendants may respond to the amicus brief [Doc. # 831] by July 2,
2020.

4.

The Juvenile Coordinators shall file their annual report by July 1, 2020 as
previously scheduled. They shall file their next interim reports by July 24, 2020,
covering the topics listed in the April 24, 2020 and May 22, 2020 Orders to the
extent there is anything new. In addition,
a. The ORR Juvenile Coordinator shall provide greater specificity to explain
delays in release caused by fingerprinting requirements and home studies,
addressing the concerns raised in Plaintiffs’ response;

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CIVIL MINUTES—GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Date

June 26, 2020
Page

5 of 7

b. ORR shall review and amend its fingerprinting policy to provide for a less
onerous chain of approvals or show cause to the Court why the policy, as
written, is imperative;
c. The ICE Juvenile Coordinator shall report on compliance with the above
order to expeditiously release or transfer affected minors from the FRCs.
For each minor detained at an FRC for more than 20 days who is deemed
a “flight risk,” and not released or transferred pursuant to the above
directive requiring expeditious release, the ICE Juvenile Coordinator shall
give a detailed individualized explanation of why that minor is a flight risk
(cursory explanations such as “In custody—pending IJ hearing/decision,”
“pending USCIS response,” “plaintiff in a pending lawsuit,” or any other
justification that the Court has already rejected as being insufficient indicia
of imminent removal shall not be acceptable explanations);
d. For each minor who remains detained at an FRC for more than 20 days,
the absence of a suitable sponsor, a parent/guardian’s declination of waiver
of Flores rights, or a prior unexplained failure to appear at a scheduled
hearing would be a satisfactory explanation for continued detention if that
explanation is verified in a declaration by an ICE representative under
penalty of perjury; and
e. The ICE Juvenile Coordinator shall report on the status of conditions at the
Cowlitz County Juvenile Detention Center (“Cowlitz”) and Northern
Oregon Regional Corrections (“NORCOR”) detention facilities, including
specific reasons why B.B.B., A.F.P.P., and K.J.A.B. remain in detention.
None of these minors who age out shall be sent to an adult detention facility
pending resolution of this inquiry. If these Defendants remain in detention,
the report shall include a detailed explanation demonstrating flight risk
and/or danger to the community.
5.

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Plaintiffs and Defendants may file a joint response by July 31, 2020 to the Juvenile
Coordinators’ reports after having met and conferred regarding areas of dispute and
attempted to achieve resolution (if the Court determines that relevant facts are being
presented to the Court for the first time without having been shared in advance with
the opposing side in an effort to achieve resolution, the Court will not address the
issue to which those facts pertain).

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

 Case 2:85-cv-04544-DMG-AGR Document 833 Filed 06/26/20 Page 6 of 7 Page ID #:38482

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Title Jenny L. Flores, et al. v. William P. Barr, et al.

Date

June 26, 2020
Page

6 of 7

6.

The parties shall file another joint status report by July 8, 2020, regarding the
adoption and implementation of proper written advisals and other protocols to
inform detained guardians/parents about minors’ rights under the FSA and obtain
information regarding, and procedures for placement with, available and suitable
sponsors,5 as well as discuss conditions at the Cowlitz and NORCOR detention
facilities.

7.

Pursuant to the Court’s April 10, 2020 Order[Doc. # 768], the parties’ counsel shall
continue to meet and confer regarding (1) certain disclosures, including
information regarding existence of COVID-19 infection among Class Members,
that should be provided to minors’ immigration counsel; and (2) the quality of the
data that Defendants maintain and provide to Class Counsel pursuant to Paragraph
28A of the FSA. By no later than July 31, 2020, the parties shall file a joint status
report regarding the outcome of their efforts to meet and confer in this regard.

8.

To the extent disagreements remain between the parties after meaningful efforts to
meet and confer on any of the topics on which they are to submit joint status reports,
the parties may describe those disagreements in the reports submitted to the Court
and request adjudication, mediation, or any other form of relief the Court may
provide.

9.

Dr. Paul Wise and the Independent Monitor Andrea Ordin shall continue to provide
enhanced monitoring of the care of minors at the FRCs and shall have the ability to
(a) request and obtain copies of medical care data and policies; (b) have telephone
or videoconference access to persons most knowledgeable at the FRCs with whom
they can discuss the baseline of custodial medical care, health care protocols, and
COVID-19 prevention practices; (c) consider protocols for identifying minors who
have serious medical conditions that may make them more vulnerable to COVID19; (d) interview minors with serious medical conditions or, as appropriate, their
guardians; and (e) make such recommendations for remedial action that they deem
appropriate.

5
To provide further guidance to the parties, the Court clarifies that any “waiver” should be only as narrow
as the issue being waived. For example, a parent/guardian may waive a Class Member’s Flores right to release
“without unnecessary delay” to an available suitable custodian in the order of preference listed in Paragraph 14, if that
parent/guardian does not prefer for the Class Member to be released to that custodian, without waiving any of the
Class Member’s other Flores rights. See FSA at ¶ 14 [Doc. # 101]. On the other hand, the guardian/parent of a Class
Member who simply has no available suitable custodian need not sign any waiver at all.

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 Case 2:85-cv-04544-DMG-AGR Document 833 Filed 06/26/20 Page 7 of 7 Page ID #:38483

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 85-4544-DMG (AGRx)

Title Jenny L. Flores, et al. v. William P. Barr, et al.
10.

Date

June 26, 2020
Page

7 of 7

The Court shall hold a further video status conference on August 7, 2020 at 11:00
a.m. to discuss compliance with the Court’s Orders.

IT IS SO ORDERED.

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Initials of Deputy Clerk KT