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

Filing 189

NOTICE Revised Reunification Plan by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Attachments: #1 Exhibit Reunification Plan)(Fabian, Sarah)(aef).

Case 3:18-cv-00428-DMS-MDD Document 189 Filed 08/16/18 PageID.3219 Page 1 of 5

1 CHAD A. READLER
Acting Assistant Attorney General
2 SCOTT G. STEWART
3 Deputy Assistant Attorney General
WILLIAM C. PEACHEY
4 Director
5 Office of Immigration Litigation
U.S. Department of Justice
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WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
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SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
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Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
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Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: [phone]
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Fax: [phone]
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ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
California Bar No. 94918
Office of the U.S. Attorney
880 Front Street, Room 6293
San Diego, CA 92101-8893
619-546-7125
619-546-7751 (fax)
Attorneys for Federal RespondentsDefendants

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No. 18cv428 DMS MDD

MS. L, et al.,

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Petitioners-Plaintiffs,

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vs.

U.S. IMMIGRATION AND CUSTOMS
24 ENFORCEMENT, et al.,
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Respondents-Defendants.
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NOTICE REGARDING
IMPLEMENTATION OF PLAN FOR
REUNIFICATIONS ABROAD

Case 3:18-cv-00428-DMS-MDD Document 189 Filed 08/16/18 PageID.3220 Page 2 of 5

As requested by the Court, the parties met and conferred regarding

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2 Defendants’ reunification plan for removed class members. At the request of
3 Plaintiffs, and after discussion between the parties, Defendants have agreed to some
4 changes to the plan document, and Defendants therefore submit the attached revised
5 plan document that reflects those changes. The parties having now reached
6 agreement on this plan, Defendants respectfully ask that the Court approve the plan
7 so that the reunification process for removed parents under this plan can move
8 forward immediately.
In making this request, Defendants note that their agreement to the changes

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10 proposed by Plaintiffs, as well as their ability to move forward in implementing the
11 attached plan, relies on Defendants’ understanding that nothing in this Court’s
12 preliminary injunction order (or the plan) requires Defendants to return any removed
13 class members to the United States for the purpose of reunification. Indeed, such a
14 requirement would be inconsistent with the Court’s order making clear that the
15 Government “remain[s] free to enforce its criminal and immigration laws, and to
16 exercise its discretion in matters of release and detention consistent with law.” ECF
17 No. 83 at 20. 1 Thus, Defendants’ plan proposes an efficient process to reunify
18 children with their parents who have been removed in the family’s home country,
19 and Defendants have agreed to the changes in the attached plan with the
20 understanding that, upon the Court’s approval of the plan, reunifications will be able
21 to proceed in that manner.
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This Court’s previous order also is consistent with the application of parole
26 authority, which must be exercised on a case-by-case basis and is a non-reviewable
discretionary authority of the Secretary of Homeland Security. See 8 U.S.C.
27 § 1182(d)(5); 8 C.F.R. § 212.5; see also 8 U.S.C. § 1252(a)(2)(B)(ii).
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18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 189 Filed 08/16/18 PageID.3221 Page 3 of 5

1

Plaintiffs in M.M.M. v. Sessions, Case No. 18-cv-1832 (S.D. Cal.), also

2 pending before this Court, and the companion case in the District of Columbia
3 raising materially identical issues, M.M.M. v. Sessions, Case No. 18-cv-1835
4 (D.D.C.), have suggested through email communication and at oral argument this
5 week in the District Court for the District of Columbia that they intend to take the
6 position that where a child has been separated from his or her parent, and that parent
7 has been removed, the child has a legal right to demand that the Government return
8 his or her parent to the United States to act as a consultant on behalf of the child in
9 any further asylum or protection-related proceedings to which the child may be
10 entitled. Regardless of whether such a right exists—a proposition that Defendants
11 strongly dispute and would oppose if raised directly with this Court or the District
12 Court for the District of Columbia—such assertions would directly and significantly
13 interfere with Defendant’s ability to execute the attached plan.
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If M.M.M. Plaintiffs choose to interfere with implementation of the attached

15 plan by requesting this relief, such a request would be fundamentally at odds with
16 the prompt reunification contemplated by the parties in this case, would make
17 implementation of the attached plan unworkable as currently written, and would
18 request relief that the Court lacks jurisdiction to order. Accordingly, Defendants
19 request that in approving this plan, the Court make clear that it does not intend to
20 require the Government to return Ms. L class members to the United States for
21 purposes of reunification, but instead will permit the Government to proceed under
22 the attached plan to reunify children with their parents in their home country.
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18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 189 Filed 08/16/18 PageID.3222 Page 4 of 5

1 DATED: August 16, 2018
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Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
/s/ Sarah B. Fabian
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
[phone]
[phone] (facsimile)
[e-mail]

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ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
Attorneys for Respondents-Defendants

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18cv428 DMS MDD

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CERTIFICATE OF SERVICE

2 IT IS HEREBY CERTIFIED THAT:
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I, the undersigned, am a citizen of the United States and am at least eighteen
4 years of age. My business address is Box 868, Ben Franklin Station, Washington
5 DC 20044. I am not a party to the above-entitled action. I have caused service of
6 the accompanying NOTICE REGARDING IMPLEMENTATION OF PLAN
7 FOR REUNIFICATIONS ABROAD on all counsel of record, by electronically
8 filing the foregoing with the Clerk of the District Court using its ECF System, which
9 electronically provides notice.
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I declare under penalty of perjury that the foregoing is true and correct.

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DATED: August 16, 2018

s/ Sarah B. Fabian
Sarah B. Fabian

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18cv428 DMS MDD

Case 3:18-cv-00428-DMS-MDD Document 189-1 Filed 08/16/18 PageID.3224 Page 1 of 7
Interagency Plan for Reunification of Separated Minors with Removed Parents
August 16, 2018
SCOPE
This plan describes roles, responsibilities, and activities for U.S. government agencies to effect the
reunification of minors currently in the care of the Department of Health and Human Services
(HHS) Office of Refugee Resettlement (ORR) who were separated from class member parents by
the U.S. Department of Homeland Security (DHS), and who have been removed or have departed
from the United States or released from the custody of U.S. Immigration and Customs Enforcement
(ICE).
COORDINATION GROUP
Each Cabinet Department (U.S. Department of Justice (DOJ), U.S. Department of Health and
Human Services (HHS), U.S. Department of Homeland Security (DHS), and U.S. Department of
State (DOS)) has designated a lead. The four leads together constitute the UAC Reunification
Coordination Group for removed parents and minors in ORR care. This group fulfills Judge
Sabraw’s requirement for an “accountable individual or team.” The operational lead for each
Department is responsible for coordinating resource requests to the respective Department,
briefing the Secretary (or designee) for the Department, representing the Department in the
interagency planning process, and serving as point of contact for interagency partners to ensure
unity of effort and effective interagency collaboration. The Coordination Group consists of the
following individual points of contact (POC):
1.

DHS: U.S. Immigration and Customs Enforcement (ICE) Acting Deputy Assistant
Director Robert Guadian
DOJ: Scott G. Stewart, Deputy Assistant Attorney General, Civil Division (nonoperational role; will take the lead in addressing the Court and coordinating with
Plaintiffs’ counsel)
DOS: Dale Eppler, Acting Deputy Secretary, Western Hemisphere Affairs Bureau
HHS: Commander Jonathan D. White

2.

3.
4.

OPERATIONAL CORE PROCESSES
The plan for reunifications with removed class members has five processes:
1.
2.
3.
4.
5.

Identify and Resolve Safety/Parentage Concerns
Establish contact with parents who have been removed from the United States
Determine parent’s intention for child
Resolve immigration status of minors to allow reunification
Transport minors to their respective countries of origin (COO)

The plan for reunifications for parents released into the interior of the United States is listed in the
parties’ Joint Status Report. Below is the plan for removed parents.

1

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PROCESS 1 – IDENTIFY & RESOLVE SAFETY/PARENTAGE CONCERNS
• HHS, DHS, and DOJ determine whether each purported class member parent actually
is a class member and eligible for reunification.
• HHS conducts a case review of each minor in care for reunification with a removed
class member, to determine if the reunification is cleared to the standard established
in the Ms. L case. This consists of reviewing the criminal background summary
previously provided by DHS, through ICE, as well as the child’s case record in the
UAC Portal system, to identify if there are any specific reasons to doubt parentage or
to question the safety of the child. The standard of review is the same as that used for
“ORR Clearance” in Phase II (for reunification of minors aged 5-17 with parents in
ICE custody).
• For cases where there are no indications to doubt parentage, and no indications to
doubt child safety, ORR will designate that reunification is “Green-lighted” and the
reunification will proceed as below.
• For cases where ORR identifies any cause to doubt parentage, HHS will refer those
cases to the government of the country of origin (COO) via the designated Embassy
or Consular Network in the United States for relationship verification. The
government of the COO will determine parentage using documents, interviews,
investigations, or other methods deemed suitable by that government. The Embassy
of the COO will notify HHS whether the parentage is verified, and HHS will rely upon
the determinations of the government of the COO. Where parentage is confirmed by
the Embassy of the COO, HHS will proceed to the next step in reunification. Where
parentage is denied by the Embassy of the COO, the child will proceed into the
standard ORR sponsorship process. If parentage is denied, the decision shall be
conveyed, as part of the weekly update to the class list, to the ACLU/Steering
Committee, which shall be permitted, within a reasonable timeframe not to exceed
five days, to present evidence demonstrating parentage. If Plaintiffs continue to
disagree with the Government’s determination, Plaintiffs may bring the dispute to the
Court.
• For cases where ORR identifies any cause to doubt the safety of the reunification
(such as allegations of abuse made by the child while in care, or criminal background
check summary results indicative of danger, such as prior criminal convictions for
crimes such as child abuse, sexual exploitation of a minor, sexual assault, domestic
violence, human trafficking, child pornography, rape, kidnapping, or murder), ORR
will refer the case to ORR Federal Field Specialists for further inquiry. If the
determination is made that the reunification cannot be approved due to safety
concerns, the child will proceed into the standard ORR sponsorship process. Such
determinations shall be conveyed, as part of the weekly update to the class list, to the
ACLU/Steering Committee, which shall be permitted, within a reasonable timeframe
not to exceed five days, to present evidence demonstrating parental fitness or lack of
criminal history purportedly preventing reunification. If Plaintiffs continue to disagree
with the Government’s determination, Plaintiffs may bring the dispute to the Court.
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PROCESS 2 – ESTABLISH CONTACT WITH PARENTS IN COUNTRY OF ORIGIN
• ORR develops a line list based on information solicited from shelter programs
providing care for children of removed class members, identifying the contact status of
class member parents. Initial list was completed on Tuesday, 7 August 2018, and will
be iteratively updated thereafter.
•

•

•
•
•

•

•
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From the above line list, HHS provides the list of removed parents who have not yet
been located/contacted to a DOS POC who will relay to U.S. Embassy personnel in
each of the countries to which parents were removed.
DOS and DHS will liaise with the COO government to assist the COO government in
identifying contact information for parents who have not yet had contact information
identified. DOS will contact COO government authorities through existing channels
as required to facilitate partnership. These efforts will be conducted at the U.S.
Embassy in each COO through engagement with local authorities to identify contact
information for remaining parents (such as local address and telephone number).
o
In exceptional cases, the ACLU/Steering Committee may alert the
Government that liaising with COO governments concerning specific Class
Members may pose a particularized danger to that Class Member. In such
cases, following such notification, the Government may refrain from any
further liaising with the COO government regarding that Class Member.
DOS will provide daily updates with contact information on located parents to HHS.
HHS updates list daily with information received.
DOS will place on U.S. Embassy websites—and communicate to U.S. consulates in
countries to which parents were removed—a hotline phone number that provides
direct contact to American Civil Liberties Union (ACLU) Steering Committee. The
ACLU/Steering Committee will establish, maintain, and staff this number, and will
provide the number to DOS for this purpose. DOS will also work with COO
government officials to identify other ways to make this information available to
removed parents in those countries, including asking the COO government to post
notices, advertisements, and billboards and conduct other outreach efforts as
necessary.
Each Tuesday, the ACLU/Steering Committee will provide to the UAC Reunification
Coordination Group (via the DOJ member of that group):
1. A copy of the list of class members who have not been reunified with their
child(ren) and are not in the United States, as most recently provided by the
Government to the ACLU/Steering Committee, annotated to indicate whether the
ACLU/Steering Committee has contacted the class members, and the status of any
efforts to confirm whether that class member wishes to be reunified with his or her
child(ren).
2. A list of any class members for whom the ACLU/Steering Committee has been
unable to obtain direct contact information using all of the information already
provided by the government, and a description of the efforts that the ACLU/
Steering Committee has made to locate that direct contact information.
For any class member for whom direct contact information cannot be obtained after

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all of these steps are completed, the parties will meet and confer to discuss what
additional steps should be taken to attempt to locate direct contact information for that
class member. If the parties cannot agree on additional steps to be taken, then the
parties will inform the Court and seek guidance on how to proceed.
PROCESS 3 – DETERMINE PARENTAL INTENTION FOR MINOR
• Case managers in ORR grantee programs where children are sheltered in many cases
are already in contact with parents using identified contact information. In cases where
contact has already occurred, the status of these contacts is conveyed by HHS through
DOJ to the ACLU. The ACLU shall be responsible, as the counsel to the parents, for
determining and conveying the parents’ wishes. HHS (via DOJ) will provide the
ACLU/Steering Committee with a list of children with an indication whether HHS is
aware that the child is represented by an attorney along with any available names and
contact information for such attorneys, and will provide updated information within a
reasonable timeframe of it becoming available to HHS.
• The ACLU will develop an appropriate form for parents outside the United States who
wish to waive reunification with their children. The form would serve as a document
recording the parent’s wishes with respect to reunification, and would upon receipt be
maintained in the A-Files of both parent and child. This form would ordinarily
be accompanied by the standard ORR Letter of Designation, in the case of parents
who wish to designate another individual to be considered as the sponsor of the child
for standard ORR purposes. The parties recognize that securing such a form may be
impracticable in some cases. In those cases the ACLU/Steering Committee will
provide an affidavit signed by an ACLU/Steering Committee attorney stating why
securing such a form from the Class Member is impracticable, and providing the
attorney’s sworn statement as to the class member’s selections that would otherwise
be reflected in the form.
• Parents indicate to the ACLU/Steering Committee whether they elect to have the child
reunified with them in COO, or affirmatively, knowingly, and voluntarily waive
reunification and have the child proceed through standard TVPRA-governed ORR
sponsorship process. In the latter case, the parent identifies (if he/she wishes) a relative
or other individual to serve as sponsor via ORR Letter of Designation.
• DOJ provides weekly updated lists with contact information on located parents in the
COO to the ACLU/Steering Committee. The ACLU/Steering Committee agrees to
make best efforts to contact all parents within 10 days of receiving contact information
(or within 10 days of the date on which the Court approves this Plan, whichever is
later). If the ACLU/Steering Committee is not able to contact a parent within 10 days
after exhausting its best efforts to do so, the ACLU/Steering Committee shall
promptly meet and confer to try to agree on a reasonable extension of this time period.
• The ACLU/Steering Committee confirms any decision for the child to be reunified or
remain in ORR care on its client’s behalf within 14 days of the ACLU/Steering
Committee actually contacting the parent, or the conclusion of the above 10-day
contact period, whichever is sooner. The ACLU/Steering Committee will use its best
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efforts to meet the 14-day time limit and will inform the Government promptly if
additional time is required for a specific class member notwithstanding such effort.
The parties shall promptly meet and confer to try to agree on a reasonable extension
of the 14-day time limit. The parties shall present any disputes to the Court as needed.
For children whose parents have expressed a wish for reunification, and who are
“green- lighted” by ORR (as detailed in Process 1, above), reunification proceeds
(Processes 4 and 5, below).
For children whose parents decline reunification, the parent is removed from the class,
and the child proceeds in the U.S. pursuant to the standard, TVPRA-governed ORR
sponsorship process.
The ACLU/Steering Committee must provide Defendants with final, affirmative,
knowing, and voluntary written confirmation of whether any specific removed class
member wants to be reunified with his or her child. As discussed above, the
ACLU/Steering Committee must do so within 14 days of actually contacting the class
member, or exhausting the time period for contacting the class member, whichever is
sooner. The 14-day period may be extended by the agreement of the parties or the
Court. If written confirmation cannot be obtained from a class member, then the
ACLU/Steering Committee will provide an affidavit signed by an ACLU/Steering
Committee attorney attesting to either the class member’s final, affirmative, knowing,
or voluntary written confirmation, or that such confirmation could not be obtained
from the class member.
The ACLU/Steering Committee coordinates with counsel for the children, both class
counsel and any individual counsel, to confirm that where parents have elected to
reunify with children, attorneys for those children confirm that the U.S. government
may transport the child to the home country for reunification. The ACLU/Steering
Committee affirmatively communicates to DOJ prior to scheduling the reunification
that counsel for the children agree that reunification may occur.
If a class member who has been removed chooses reunification, the ACLU/Steering
Committee will ensure that the class member provides any information required to
complete the Court’s process for confirming that the Court’s criteria for class
membership and reunification are met (e.g., parentage, criminal history, parental
fitness, or child safety), to the extent that Class Members or the ACLU/Steering
Committee possess or can reasonably obtain such information.
If a class member who has been removed chooses reunification, the ACLU/Steering
Committee will ensure that the class member provides any additional information or
documents that the government may require to facilitate return of the child to the COO
for the purpose of reunification of the class member and his or her child, to the extent
that Class Members or the ACLU/Steering Committee possess or can reasonably
obtain such information.
If a class member who has been removed chooses not to be reunified, the
ACLU/Steering Committee will assist ORR in obtaining a written letter designating
relatives in the United States whom the parents would find acceptable as sponsors (the
standard Letter of Designation used in the ORR program), which will guide ORR to
the same extent as a Letter of Designation in other (non-separated) circumstances in

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the UAC Program. If the class member declines to participate in this process, ORR
will pursue the standard TVPRA/UAC placement with a sponsor in the United States.
PROCESS 4 – RESOLVE IMMIGRATION STATUS OF MINORS TO ALLOW
REUNIFICATION
In the case of any child whose reunification is not authorized by the Court’s order, the
U.S. government may not complete reunification until after children’s immigration
procedures are completed in the ordinary course.
If the parent selects reunification, then by Court approval of this plan the U.S.
government is authorized to proceed with reunifications in accordance with this plan as
follows:
1. If no NTA has been issued/filed, then the U.S. Government can transport the
child to the COO for the purpose of reunification with the parent.
2. If an NTA has been issued but not filed with EOIR, DHS will cancel the NTA
and then the U.S. Government can proceed with transporting the child to the
COO for the purpose of reunification with the parent.
3. If an NTA has been issued and filed with EOIR, DHS will move to dismiss
proceedings without prejudice, noting in such motion that it is based on Ms. L
reunification, after which the U.S. Government can proceed with transporting
the child to the COO for the purpose of reunification with the parent.
4. For each child who is reunified with a parent pursuant to this Plan in the
COO, the repatriation will be without prejudice to the minor’s future ability
to apply for asylum or withholding of removal under the Immigration and
Nationality Act or protection under regulations implementing U.S.
obligations under Article 3 of the Convention Against Torture, if the child
returns to the United States.
5. The procedures set forth above are for the Ms. L class only, and are not
intended to establish a precedent that will apply to any other cases or
proceedings.
PROCESS 5 – TRANSPORTATION OF MINORS FOR PHYSICAL
REUNIFICATION WITH PARENT IN COUNTRY OF ORIGIN
• If a class member who has been removed chooses reunification, the U.S. government
will provide transportation for the child to the COO to facilitate reunification, pursuant
to applicable authorities and as consistent with law.
• HHS updates the list of minors for whom the government has completed Processes 14 above, and who are eligible for transportation to the COO for purposes of
reunification and whose parents have elected reunification. This list is provided to all
network partners.
• DHS, through ICE (with DOS assistance, as needed), liaises with the Embassy and/or
consular network of the COO in the United States to ask them to produce travel
documents for the child.
• As needed and in collaboration with DHS, through ICE, DOS requests the government
of the COO to expedite preparation of travel documents.
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The ORR shelter grantee prepares the child for discharge and transport.
If required, ORR directs shelter programs providing care to minors eligible for
reunification in COO to arrange transport from the shelter or transfer the child to an
appropriate location in the United States.
ORR will direct shelter programs providing care to minors eligible for reunification
in COO whether the minors’ transportation will be arranged from their shelter location
or whether they will be transferred to another appropriate staging location.
The U.S. Government will coordinate travel to the COO once travel documents from
the COO government are received. U.S. Embassies in each COO liaise with
government authorities for the COO to arrange reception of flights of minors and
physical reunification of minors with their parents at the debarkation airport. All
reunifications in the COOs shall be effectuated by the respective COO governments.
The Government shall facilitate transportation of children to their respective COOs,
including the arrangements for travel. The Government will consider the views and
particular issues raised by the ACLU/Steering Committee with respect to such
arrangements.