Case 2:85-cv-04544-DMG-AGR Document 938 Filed 08/26/20 Page 1 of 21 Page ID
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ANDREA SHERIDAN ORDIN (SBN 38235)
STRUMWASSER & WOOCHER LLP
10940 Wilshire Boulevard, Suite 2000
Los Angeles, California 90024
Telephone: (310) 576-1233
Facsimile: (310) 319-0156
E-mail: aordin@strumwooch.com

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Independent Monitor

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JENNY LISETTE FLORES, et al.,

CASE NO. CV 85-4544-DMG (AGRx)

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Plaintiffs,

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v.

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NOTICE OF FILING OF INTERIM
REPORT ON THE USE OF
TEMPORARY HOUSING FOR
MINORS AND FAMILIES UNDER
TITLE 42 BY INDEPENDENT
MONITOR AND DR. PAUL WISE

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

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Defendants.

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NOTICE OF FILING OF INTERIM REPORT ON THE USE OF TEMPORARY HOUSING FOR
MINORS AND FAMILIES UNDER TITLE 42 BY INDEPENDENT MONITOR AND DR. PAUL WISE

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On June 26, 2020, Judge Dolly M. Gee ordered (Doc. 833), among other
things, that:
Dr. Paul Wise and the Independent Monitor Andrea Ordin shall
continue to provide enhanced monitoring of the care of the minors at
the FRCs and shall have ability to . . . make such recommendations
for remedial action that they deem appropriate.

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On July 25, 2020, this Court issued another Order (Doc. 887)
requiring, among other things:
The Independent Monitor, Andrea Ordin, may in the exercise of her
monitoring duties request such further information regarding safe and
sanitary conditions and/or Defendants’ continuous efforts at release as
she deems appropriate pursuant to her authority under Paragraph
B(1)(c)(iii) of the October 5, 2018 Order appointing her, and in
consideration of the concerns outlined in this Order and the Court’s
June 27, 2017 Order regarding minors in prolonged detention at any
stage of expedited removal proceedings. [Doc. ## 363, 494.]
On August 7, 2020, this Court issued yet another Order (Doc. 914)
affirming the Independent Monitor’s authority to monitor the hotelling issue:
Dr. Paul Wise and the Independent Monitor Andrea Ordin shall
continue to provide enhanced monitoring of the FRCs’ care of minors,
and shall have the ability to . . . make such recommendations for
remedial action that they deem appropriate. They shall also continue to
monitor the hotelling of minors, under the authority discussed in the
Court’s July 25, 2020 Order. [Doc. # 887.]

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In accordance with the Court’s Orders, the Monitor submits the attached

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Interim Report on the Use of Temporary Housing for Minors and Families

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under Title 42.

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NOTICE OF FILING OF INTERIM REPORT ON THE USE OF TEMPORARY HOUSING FOR
MINORS AND FAMILIES UNDER TITLE 42 BY INDEPENDENT MONITOR AND DR. PAUL WISE

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DATED:

August 26, 2020

Respectfully submitted,
Andrea Sheridan Ordin
STRUMWASSER & WOOCHER LLP

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By

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/s/ Andrea Sheridan Ordin
Andrea Sheridan Ordin

Special Master / Independent Monitor

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NOTICE OF FILING OF INTERIM REPORT ON THE USE OF TEMPORARY HOUSING FOR
MINORS AND FAMILIES UNDER TITLE 42 BY INDEPENDENT MONITOR AND DR. PAUL WISE

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CERTIFICATE OF SERVICE

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Case No. CV 85-4544- DMG (AGRx)

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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.

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I hereby certify that on August 26, 2020, I electronically filed the following

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documents with the Clerk of the Court for the United States District Court, Eastern District

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of California by using the CM/ECF system:

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NOTICE OF FILING OF INTERIM REPORT ON THE USE OF
TEMPORARY HOUSING FOR MINORS AND FAMILIES UNDER
TITLE 42 BY INDEPENDENT MONITOR AND DR. PAUL WISE
I certify that all participants in the case are registered CM/ECF users and that service
will be accomplished by the CM/ECF system.

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I declare under penalty of perjury under the laws of the United States the foregoing
is true and correct. Executed on August 26, 2020, at Los Angeles, California.

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Jeff Thomson

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CERTIFICATE OF SERVICE

 Case 2:85-cv-04544-DMG-AGR Document 938 Filed 08/26/20 Page 5 of 21 Page ID
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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, et al., Defendants.

Case No. CV 85-4544-DMG (AGRx)
Hon. Dolly M. Gee, United States District Judge

Interim Report on the Use of Temporary Housing
for Minors and Families under Title 42
by Independent Monitor and Dr. Paul Wise

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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INTRODUCTION
On June 26, 2020, Judge Dolly M. Gee ordered (Doc. 833), among other
things, that:
Dr. Paul Wise and the Independent Monitor Andrea Ordin shall
continue to provide enhanced monitoring of the care of the minors
at the FRCs and shall have ability to. . . make such
recommendations for remedial action that they deem
appropriate.
On July 25, 2020, this Court issued an Order (Doc. 887) requiring,
among other things:
The Independent Monitor, Andrea Ordin, may in the exercise of
her monitoring duties request such further information regarding
safe and sanitary conditions and/or Defendants’ continuous
efforts at release as she deems appropriate pursuant to her
authority under Paragraph B(1)(c)(iii) of the October 5, 2018
Order appointing her, and in consideration of the concerns
outlined in this Order and the Court’s June 27, 2017 Order
regarding minors in prolonged detention at any stage of
expedited removal proceedings.
On August 7, 2020, this Court issued yet another Order (Doc. 914),
affirming the Independent Monitor’s authority to monitor the hotelling issue:
Dr. Paul Wise and the Independent Monitor Andrea Ordin shall
continue to provide enhanced monitoring of the FRCs’ care of
minors, 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 COVID-19; (d) interview minors with serious medical
conditions or, as appropriate, their guardians; and (e) make such
recommendations for remedial action that they deem
appropriate. They shall also continue to monitor the hotelling of
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minors, under the authority discussed in the Court’s July 25,
2020 Order.1
In the Independent Monitor’s Report filed July 22, 2020, the
Independent Monitor and Dr. Paul Wise reported on the temporary housing
portion of the Title 42 programs and recommended remedial action under the
authority of the June 26, 2020 Order of Judge Gee (Doc. 833) and Order of
April 24, 2020 (Doc. 784). That Report described the operation of the
program in three hotels, one in McAllen Texas, one in El Paso Texas and one
in Phoenix Arizona. Statistics provided by ICE demonstrated that 14
families and 23 single minors were residing in the mentioned hotels as of
June 16, 2020.
Dr. Paul Wise and the Independent Monitor, after reporting on the
structure of the program and the length of stays of the single minors in
hotels, recommended excluding all single minors from the current temporary
housing program while expressing particular concern for the vulnerability of
single minors below the age of 15.

On October 5, 2018, the Court, among other things, ordered the
appointment of Andrea Sheridan Ordin as Special Master/Independent
Monitor (“Monitor”) (Doc. 494):
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If the Monitor has a good faith basis to believe that there is a
significant violation of the Court’s Orders that cannot reasonably
be addressed through a Report and Recommendation due to its
exigency, the Monitor shall file on the case docket an interim
report
and
recommendation
(“Interim
Report
and
Recommendation”), including any recommendations for steps
necessary to improve Defendants’ compliance and the reason for
the urgency. Prior to filing the Interim Report and
Recommendation, the Monitor shall afford the Parties a
reasonable opportunity to be heard and to expeditiously cure any
violation.
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After the August 7, 2020 hearing, the Court set a briefing schedule
relating to the Title 42 hotelling issue, directing that Plaintiffs file a motion
to enforce the FSA and ordering Dr. Paul Wise and the Monitor to monitor
the hotelling of minors under the authority of the Court’s July 25, 2020
Order. The Court also ordered that any report and recommendation be filed
by August 24, 2020, but subsequently extended that date.
This Interim Report provides information on the monitoring pursuant
to that Order and provides a more complete picture of the scope of the
program.
ACTIVITIES OF THE MONITOR JULY 23, 2020 - AUGUST 18, 2020
Since the July 22, 2020 Report, the Independent Monitor has been
provided comprehensive data on minors in Family Residential Centers
(FRCs) and hotels under Title 42. On August 6, 2020, Dr. Paul Wise and the
Monitor conferred with ICE Juvenile Coordinator Deane Dougherty and ICE
officials and statisticians regarding points in need of clarification in Flores
data from March through June of 2020. On August 15, 2020, the Monitor
received updated data specifically summarizing the number of single minors,
family units, and family groups in hotels under Title 42.
Through the reporting period, the Monitor and Dr. Wise corresponded
and attended virtual meetings with counsel for minors at the FRCs, and with
lawyers for the defendants. The Monitor participated in meet and confers
among the lawyers, and reviewed drafts and pleadings. The Monitor and Dr.
Wise participated in a virtual tour of both facilities at Dilley and Karnes, and
interviewed at length parents and their children. As part of their review of
medical care at both facilities, Dr. Wise and the Monitor had access to the
medical leadership at each facility, and with the consent of the patients were

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able to review medical records. The next Interim Report will focus on the
current medical care for the minors in the FRCs.
TITLE 42 EXPULSIONS OF BOTH UNACCOMPANIED AND
ACCOMPANIED MINORS
From March 1, 2020 through July 31, 2020, the CBP website reports a
total of 105,331 U.S. Border Patrol (USBP) expulsions and 4,290 Office of
Field Operations (OFO) expulsions along the Southwest Border. USBP
expelled 35,056 individuals in July, which represents a 24% increase from the
previous month. OFO expulsions saw roughly a 10% increase from 1,359 in
June to 1,492 in July.
U.S. Border Patrol Southwest Border Enforcement Encounters
(Title 42 Expulsions and Title 8 Apprehensions)2

Enforcement Action

March

Title 42 Expulsions

7,075

Title 8 Apprehensions 23,309

April

May

June

July

FY 20 TD

14,987 19,985 28,228 35,056

105,331

1,175

192,907

1,568

2,493

3,291

U.S. Customs and Border Protection, U.S. Border Patrol Monthly
Enforcement Encounters 2020: Title 42 Expulsions and Title 8
Apprehensions, available at https://www.cbp.gov/newsroom/stats/cbpenforcement-statistics/title-8-and-title-42-statistics (last accessed August 26,
2020).
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Office of Field Operations Southwest Border Enforcement
Encounters
(Title 42 Expulsions and Title 8 Inadmissible Aliens)3
Enforcement Action

March April May June

July

FY 20 TD

Title 42 Expulsions

69

519

851 1,359 1,492

4,290

Title 8 Inadmissible Aliens

3,987

405

793

47,488

855

907

Of the total USBP enforcement encounters on the Southwest Border
from March through July, including Title 42 and Title 8 actions, 8,661 of the
individuals encountered were unaccompanied minors and 8,713 of the
individuals encountered were members of family units. However, because
statistics for the total number of unaccompanied minors and families
encountered do not specify whether those encounters involved enforcement
actions under Title 42 and Title 8, it is unclear how many of the total number
of unaccompanied minors and family units encountered by USBP and OFO
were detained under Title 42. The total number of USBP enforcement
actions against unaccompanied minors increased by 52% and the total
number of USBP enforcement actions against family units increased by 26%
from June to July.

U.S. Customs and Border Protection, Office of Field Operations Monthly
Enforcement Encounters 2020: Title 42 Expulsions and Title 8 Inadmissible
Aliens, available at https://www.cbp.gov/newsroom/stats/cbp-enforcementstatistics/title-8-and-title-42-statistics (last accessed August 26, 2020).
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U.S. Border Patrol Southwest Border Encounters4
Demographic

March April May June

July

Total
March-July

Unaccompanied Child

2,973

712

965 1,592 2,419

8,661

Family Units5

3,455

716

975 1,577 1,990

8,713

OFO encounter statistics reported 492 unaccompanied minors and
1,434 family units at the Southwest Border for the same March-July period.
OFO data also reported 212 accompanied minor children during this time.6

U.S. Customs and Border Protection, U.S. Border Patrol Southwest Border
Encounters FY 2020, available at https://www.cbp.gov/newsroom/stats/swborder-migration (last accessed August 26, 2020).
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Family Unit represents the number of individuals (either a child under 18
years old, parent, or legal guardian) apprehended with a family member by
the U.S. Border Patrol.

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“Accompanied Minor Child” represents a child accompanied by a parent or
legal guardian and the parent or legal guardian is either a U.S. Citizen,
Lawful Permanent Resident, or admissible alien, and the child is determined
to be inadmissible.
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Office of Field Operations Southwest Border Encounters7
Demographic

March April May June July

Total
March-July

Unaccompanied Child

247

29

42

87

87

492

Family Units

1,180

22

73

98

61

1,434

Accompanied Minor Child

40

18

30

56

68

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CURRENT STATUS OF TEMPORARY HOUSING OF SINGLE
MINORS IN HOTELS UNDER TITLE 42
A.

Program Structure
As described in the Independent Monitor’s Report filed July 22, 2020,

the Temporary Housing Program (THP) involves the housing of single minors
(children less than 18 years of age) and families in hotels while they await
deportation under Title 42 expulsion protocols. While the basic structure and
procedures of the THP have not changed since the Independent Monitor’s
July 22, 2020 Interim Report, the program is much larger than reflected in
that report. Currently, minors are housed in more than 25 hotels in 3 states,
according to a report provided by the Juvenile Coordinator for ICE.

U.S. Customs and Border Protection, Office of Field Operations Southwest
Border Encounters FY 2020, available at
https://www.cbp.gov/newsroom/stats/sw-border-migration (last accessed
August 26, 2020).
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B.

The Updated Snapshot of Covid-19
The hotels housing single minors and families are located in cities and

counties continuing to experience high Covid-19 caseloads. Indeed, Maricopa
County, where Phoenix is located, is ranked number 2 nationwide by Johns
Hopkins on a list of top 50 counties with the most number of confirmed
cases.8 Harris County, where Houston is located, is ranked number 5. Bexar
County, where San Antonio is located, ranks number 15.
Covid-19 Cases in Maricopa County, Arizona (Phoenix)

Data is current as of August 26, 2020, courtesy of The Johns Hopkins
Coronavirus Resource Center.
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Covid-19 Cases in Harris County, Texas (Houston)

Covid-19 Cases in Bexar County (San Antonio)

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C.

Number of Minors
Based on the data provided,9 there were 577 single minors entering the

THP for the period March 24, 2020 through July 31, 2020. The youngest
child was 10 years of age. There were 7 children 10 years of age; another 14
were 11 years of age; 13 were 12 years of age. Of all single minors, 126 (22%)
were below 15 years of age. The full age distribution is presented below:

Number of Single Minors in THP by Age: March 24-July 31

Number of Minors

250
200
150
100
50
0
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AGE (Years)

For this analysis and going forward, the Independent Monitor is relying on
the data provided by the Juvenile Coordinator for ICE, which listed 660
minors in the program as of July 31, 2020, 577 who were identified as single
minors between the ages of 10 and 17. This information was also filed with
the Court under seal as Attachment A to the Declaration of Mellissa Harper
(Doc. 925-1). However, there are some inconsistencies between those reports
and the monthly Flores reports provided to the Independent Monitor and
Plaintiffs. The inconsistencies have been brought to the attention of ICE, and
the Independent Monitor expects to receive any corrections or explanations
prior the Court’s September 4, 2020 hearing.
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D.

Length of Stay
Based on the data provided, there was a substantial range in the

amount of time single minors were held in the THP. For all single minors,
the shortest length of stay (LOS) was 1 day and the longest was 28 days with
an average of approximately 5 days. For minors less than 15 years of age,
the shortest LOS was also 1 day and the longest LOS was 15 days. Among
the 10 year old minors, the average LOS was approximately 4 days with a
maximum of 7 days.
Significantly, the distribution of LOS was quite broad for all age
groups. The box plots presented below provide a statistical visualization of
these distributions. Box plots (also known as Box and Whisker plots) are
helpful in assessing the distribution of values within a dataset. They reveal
more than an average and identifies how the values congregate within a
distribution.
The elements of the Box plots are arranged around what is called the
Interquartile Range (IQR), which is a measure of variability or spread in the
data, by separating the distribution into 4 quartiles. For all single minors
(see figure below), the first quartile is the range from the minimum value
(labeled “a” on the graph) of 1 day to the 25th percentile (labeled “b”) of 3
days. The second quartile is from the 25th percentile to the 50th percentile,
which is the median of 4 days. The third quartile is from the median to the
75th percentile (labeled “c”) of 6 days. The fourth quartile is from the 75th
percentile to the modified maximum value (labeled “d”) of 10 days. The
maximum value here is considered “modified” because it excludes values, or
“outliers” that fall far outside the main distribution. By statistical
convention, outliers are defined as falling less or more than 1.5 times the
IQR. These outlier values for the LOS distribution for all single minors range
from 11 days to 28 days and represent the LOS values for 33 different
minors.
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a
b
c
d

Minimum value
25th percentile
75th percentile
Maximum
value
(excluding
outlier values)

Outlier LOS Values
Representing 33
Individual Minors*

d

Average 4.9
Median 4

c
b
a

* Outliers are considered as being outside the main distribution of values. Outliers are calculated as
having LOS greater than 1.5 times the Interquartile Range which is c-b and in this plot equals 10
days.

The second Box plot depicts the same analytic approach but confines
the analysis to only those minors less than 15 years of age. There was a total
of 126 children less than 15 years of age held in custody in the THP from
March 24 to July 31, 2020. There were 4 children identified as outliers with
LOS of 13 or 15 days.

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Average 4.6
Median 4

The age and LOS data suggest that the THP includes children of a
variety of ages and developmental stages. The largest portion of single
minors in the THP were adolescents 15-17 years of age. However,
approximately 1 in 5 single minors were less than 15 years old and
approximately 1 in 20 were 12 years old or less. The youngest single minors
reported to have been held in the THP were 10 years of age.
The LOS data for single minors had a wide distribution. The average
LOS was approximately 5 days. The median was 4 days, implying that 50%
of single minors had a LOS of less than 4 days and the other 50% greater
than 4 days. Almost one-third of all single minors had a LOS of greater than
6 days with a maximum of almost 1 month in the THP. This skewed upper
range of the distribution, with a substantial number of children experiencing
extended stays of more than 10 days, suggests that there does not appear to
be any formal limit on the LOS in the THP and that even relatively young
children can be held in the hotels for extended periods of time.
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E.

Amenities
The helpful declaration of Mellissa Harper filed with Defendants’

Response in Opposition to Plaintiffs’ Motion to Enforce (Doc. 920) listed a
number of important amenities provided to minors in the THP. These include
supervision by contractor MVM personnel, the provision of beds, temperature
control, hygiene materials, hot meals and snacks, bathrooms, and access to
ICE medical personnel. The hotels being utilized by the THP are mainstream
facilities of hotel chains that provide mid-level accommodations for visitors
and business travelers. The quality of the provided amenities has been
subject to internal inspections and MVM quality control activities. As
detained minors and parents have not yet been made available for interview,
an independent assessment of detainee experiences has not been possible to
date.
F.

Overall Assessment
While the legal provisions of the Title 42 expulsion policy will be

deliberated elsewhere, it seems clear that the Temporary Housing Program is
not fully responsive to the safe and sanitary requirements of young children.
● Age limits. The inclusion of young, single minors in the THP remains
of concern. Tender age single minors require specialized supervision
and services and are inherently vulnerable to the potential
psychological harm of an extended expulsion process. The current THP
procedures and amenities make no distinction based on the age or
developmental capacity of the child in custody. Diapers and other
essential items for young children are provided to parents in family
units. However, there is no information regarding the systems of care
required by children who cannot care for themselves. Moreover, it is
unclear how the THP custodial elements for a 10 year old differ from
those provided to a 17 year old. There is a vast body of pediatric and
psychological evidence documenting sharp differences in the requisite
custodial needs and developmental vulnerabilities of children over this
range of ages.
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It is important to note that according to the data provided, the
youngest single minor housed in the THP was 10 years old. This would
appear to reflect some assessment by CBP, ICE, or MVM that referral
to the THP of children less than 10 years of age would be inappropriate.
This raises two considerations:
1. Appropriate lower age limit. The apparent exclusion of
children of 9 years of age and younger suggests that there
exists some operational consensus that the THP is not an
appropriate mechanism for holding young children in
custody. However, it is not clear upon what developmental
or custodial grounds this age limit was based nor what
technical guidance was utilized to make the decision to
exclude children aged 9 but include those aged 10.
2. No formal age limit policy. The restriction of the THP to
children greater than 9 years of age while clearly helpful,
does not appear to have been adopted formally as policy.
This in turn implies that this lower age limit is
fundamentally discretionary and could be altered to include
infants and very young children at any time.
● Facility census and length of stay. It remains unclear whether
there are any limits on the number of minors permitted to be housed in
any given hotel. The concern is that without formal limits the number
of minors in a facility could surpass the supervisory and medical
capabilities of the program. Although the THP has been constructed to
hold individuals for relatively short periods of time, there does not
appear to be any formal limit to the length of stay for single minors.
This suggests that the length of time single minors could be held in the
THP would be structurally vulnerable to increased numbers of entrants
and the vicissitudes of flight availability.
● Covid-19. Concerns for the protection of minors in the THP from
acquiring Covid-19 remain. Since the inception of the THP, three
single minors tested positive for Covid-19 while in the custody of ICE at
a hotel. Of those three, two were transferred to ORR. The third
juvenile was a 16 year old who spent a total of 23 days in ICE custody
at the hotel, including a 14-day quarantine period. It is not clear how
the decisions regarding these cases were made as there appears to be
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no formal policy regarding the procedures for single minors who do test
positive for Covid-19 while in the THP. Children who are feeling sick
with Covid-19 could remain in the THP hotel as long as their medical
condition does not require referral to an outside hospital. The rates of
new cases in the areas surrounding the primary THP hotels appear to
have stabilized or fallen, although they remain worrisome. The most
recent information is that testing is confined to individuals with
relevant symptoms and that most single minors in the THP are not
required by their home countries to receive a Covid-19 test prior to
expulsion.
RECOMMENDATION: EXCLUDE SINGLE MINORS FROM THE
TEMPORARY HOUSING PROGRAM.
While the amenities provided by the THP are appreciated, a list of
amenities is not a system of care for children of different ages and
developmental stages. There remains no assurance that the THP can provide
adequate custodial care for single minors, who by definition are being moved
through the immigration system alone and without familial support or
protection. Formal systems of custodial care for children have been well
defined and require specialized custodial elements, continuous oversight, and
specialized training of relevant personnel. These specialized services and
formal protocols seem particularly important for children who test positive
for Covid-19. While the recommendation to exclude single minors from the
THP pertains to all single minors, it is particularly directed at single minors
below the age of 15 years. The current informal practice of excluding single
minors less than 10 years of age, while welcomed, is not fully responsive to
the safety and sanitary vulnerabilities of young children, including children
aged 10 through 14 years of age. Simply put, the lower age limit for single
minors assigned to the THP should be formalized and raised urgently from 9
to 14 years of age and alternative custodial programs for all single minors
should be pursued.

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