Ms. L. v. U.S. Immigration and Customs Enforcement et al

Filing 108

ORDER Following Status Conference signed by Judge Dana M. Sabraw on 07/13/2018. A further Status Conference will be held on July 16, 2018 at 9:30 a.m.(jpm)

Case 3:18-cv-00428-DMS-MDD Document 108 Filed 07/13/18 PageID.2104 Page 1 of 6

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Ms. L.; et al.,

Case No.: 18cv0428 DMS (MDD)
Petitioners-Plaintiffs,

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v.

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ORDER FOLLOWING STATUS
CONFERENCE

U.S Immigration and Customs
Enforcement (“ICE”); et al.,

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Respondents-Defendants.

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Over two weeks ago, this Court certified for class treatment Plaintiffs’ claim that

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their due process rights to family integrity had been violated as a result of Defendants’

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policy and practice of separating families apprehended at or between ports of entry, and

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placing minor children who were separated from their parents in government facilities for

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“unaccompanied minors” run by the Department of Health and Human Services (“HHS”).

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The Court also issued a preliminary injunction ordering Defendants to reunify all Class

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Members with their minor children under the age of five by July 10, 2018, and to reunify

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all Class Members with their minor children age five and over by July 26, 2018. In the

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class certification order, the Court was mindful of the safety of the children—stating it to

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be a paramount consideration—in limiting the Class to “adult parents,” and carving out of

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the Class “migrant parents with criminal history or communicable disease” and parents
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who were “unfit or present[ed] a danger to the child.” The Court reiterated these concerns

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in its preliminary injunction by creating exceptions to reunification for parents who are

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“unfit or present[ ] a danger to the child.”

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In a filing late this afternoon and after the in-court status conference, Defendants

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called into question this Court’s concern for the safety, welfare and well-being of the

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children Defendants separated from their parents, and who are now being reunited with

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their parents pursuant to this Court’s injunction.

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Assistant Secretary for Preparedness and Response, and the Chief of Staff for the Office of

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the Assistant Secretary for Preparedness and Response at HHS, states, “While I am fully

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committed to complying with this Court’s order, I do not believe that the placing of children

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into such situations is consistent with the mission of HHS or my core values.” (Decl. of

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Christopher Meekins in Supp. of Status Report (“Meekins Decl.”) ¶ 56, ECF No. 107-1.)

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It is clear from Mr. Meekins’s Declaration that HHS either does not understand the Court’s

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orders or is acting in defiance of them. At a minimum, it appears he is attempting to provide

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cover to Defendants for their own conduct in the practice of family separation, and the lack

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of foresight and infrastructure necessary to remedy the harms caused by that practice.

Christopher Meekins, the Deputy

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Following the July 10 status conference, the Court issued an order setting out ICE’s

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previous procedures—which had apparently been in place for years—for dealing with

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parents and children who entered ICE custody together. Those government procedures,

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which the Court noted appeared to have been successful in ensuring child safety and

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welfare, involved ICE personnel (1) resolving “any doubt about whether they are parent

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and child,” and (2) investigating “whether there is information that causes a concern about

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the welfare [of] the child, such as the adult having a significant criminal history.” (Decl.

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of Mario Ortiz in Supp. of Opp’n to Am. Mot. for Prelim. Inj. ¶¶ 3, ECF No. 46-1.) If there

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were no “concerns about the family relationship or welfare of the child, the [parent and

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child would] be detained at a family residential center or, if appropriate, released to a

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sponsor or non-governmental organization.” (Id.) If there were concerns, the child would

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“be transferred to the U.S. Department of Health and Human Services Office of Refugee
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Resettlement (ORR) for care and placement consideration.” (Id.) It was the Court’s intent

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that the reunification of Class Members and their children would proceed along these lines,

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lines the Government itself had used prior to the implementation of the recent family

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separation policy.

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Because the facts of this case presented a situation wholly different from those

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underlying the Trafficking Victims Protection and Reauthorization Act, Pub. L. No. 110-

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457 (Dec. 23, 2008), the Court found Defendants did not have to go through all of ORR’s

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policies and procedures prior to reunifying Class Members and their children. Indeed, it

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appears HHS, on its own, had modified those procedures prior to the Court’s July 10, 2018

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Order. (See Decl. of Jonathan White in Supp. of Notice of Compliance ¶ 13, ECF No. 86-

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1) (“HHS has modified and expedited its ordinary process so that it can determine class

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membership using the Court’s criteria and, to the extent possible, reunify class members

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and their children within the Court’s deadlines.”) The Court’s July 10, 2018 Order allowed

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for further modification of those procedures to ensure the safe reunification of Class

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Members and their children by the court-imposed deadline, but it did not go as far as HHS

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has apparently taken it.

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For instance, and despite Defendants’ joint statement that reunification had occurred

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after “careful vetting procedures[,]” Press Release, U.S. Department of Homeland Security,

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Trump Administration Completes Reunification for Eligible Children Under Age 5 (July

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12, 2018), Mr. Meekins states HHS has “suspended further efforts to affirmatively verify

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the parentage of putative class members with children under 5.” (Meekins Decl. ¶ 6.) He

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also states “HHS has stopped DNA testing of putative class members notwithstanding the

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value of DNA testing as an objective tool for verifying biological parentage.” (Id. ¶ 30.)

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Both of these statements are categorically inconsistent with the Court’s oral and written

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rulings, which explicitly require Defendants to make parentage determinations prior to

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reunification, and to use DNA testing, if necessary, to make those determinations. Other

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statements in Mr. Meekins’s Declaration are also categorically inconsistent with this

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Court’s rulings requiring Defendants to make determinations about parental fitness and
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danger to the child prior to reunification. Unfortunately, HHS appears to be operating in a

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vacuum, entirely divorced from the undisputed circumstances of this case:

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separation by Defendants, this Court’s order finding a likelihood of success on Plaintiffs’

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due process claim, the President of the United States declaring the Government is in favor

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of maintaining family unity, and the joint statement of three Cabinet Secretaries that they

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are in full compliance with the Court’s orders and are acting in good faith and will continue

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to do so. Press Release, U.S. Department of Homeland Security, Trump Administration

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Completes Reunification for Eligible Children Under Age 5 (July 12, 2018).

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Meekins’s Declaration is entirely inconsistent with explicit pronouncements from the

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family

Mr.

highest levels of the Government and this Court’s orders.

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To be clear, determinations of parentage, fitness and danger must be made before

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any Class Members are reunited with their children. All of these determinations are

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incorporated in the class definition and the preliminary injunction, and until Mr. Meekins’s

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Declaration was filed, it appeared the parties were in agreement that these determinations

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were necessary prior to any reunifications of Class Members and their children. Mr.

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Meekins’s Declaration casts doubt on what the Court believed was a mutual understanding,

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and calls into question the Court’s previous statements that Defendants are acting in good

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faith in their attempts to reunify Class Members by the currently imposed deadlines.

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As the Court stated in the 5:30 p.m. telephonic status conference with counsel held

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after the submission of Mr. Meekins’s Declaration—safe and timely reunification of Class

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Members and their children can, and will, be done by the Court’s deadline. There is no

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reason why one of these goals must be sacrificed for the other given the vast amount of

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resources available to the federal government.

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accomplished in the time and manner prescribed. Defendants were substantially compliant

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with reunifying parents with children under age five, and the Court fully expects

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Defendants will be compliant with reunifying Class Members and their minor children age

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five and over, notwithstanding Mr. Meekins’s Declaration.

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///

The task is laborious, but can be

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Accordingly, IT IS HEREBY ORDERED:

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1.

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(1) the parents of children under age 5 that Defendants excluded from the Class and (2)

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Class Members who are not currently eligible for reunification with their children under

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age 5.

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2.

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list of all Class Members currently in ICE custody, and a list of all children in ORR custody

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currently subject to reunification with Class Members.

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3.

The parties shall continue to meet and confer on the possibility of reunification for

On or before July 13, 2018, Defendants shall provide to Plaintiffs and the Court a

On or before 9:00 a.m. on July 16, 2018, Defendants shall provide to Plaintiffs and

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the Court the names, A-file numbers and locations of all Class Members and children on

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the July 13, 2018 lists, and for the children, Defendants shall also provide the age of each

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child.

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determinations for Class Members in ICE custody, to include DNA testing, if necessary,

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on or before July 19, 2018. Defendant shall also provide to Plaintiffs and the Court a list

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of parents in ICE custody who are ineligible for reunification.

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provide Plaintiffs with 12 hours notice of each reunification.

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during the evening status conference on July 13, 2018, Defendants shall have a

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representative from HHS personally appear at this conference.

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2018. A further status conference shall be held on July 20, 2018, at 1:30 p.m.

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2018, and further status conference shall be held on July 24, 2018, at 4:00 p.m.

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and a further status conference shall be held on July 27, 2018, at 1:30 p.m.

Absent a showing of good cause, Defendants shall complete their parentage

For all reunifications that occur pursuant to the Court’s order, Defendants shall

A further status conference will be held on July 16, 2018, at 9:30 a.m. As discussed

The parties shall submit a further status report on or before 3:00 p.m. on July 19,

The parties shall submit a further status report on or before 3:00 p.m. on July 23,

The parties shall submit a final status report on or before 3:00 p.m. on July 26, 2018,

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10.

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attend the July 16, 2018 status conference is as follows:

The dial in number for counsel and any members of the news media that wish to

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Dial the toll free number: 877-873-8018;

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2.

Enter the Access Code: 9911153 (Participants will be put on hold until the

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Court activates the conference call);
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Enter the Participant Security Code 07160428 and Press # (The security code
will be confirmed);

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Once the Security Code is confirmed, participants will be prompted to Press
1 to join the conference or Press 2 to re-enter the Security Code.

Members of the general public may appear in person.
IT IS SO ORDERED.
Dated: July 13, 2018

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18cv0428 DMS (MDD)