State of Washington et al v. United States of America et al

Filing 29

SUPPLEMENT Defendants Appendix A, Dkt. #21 -1 by Defendants Alex Azar, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, Donald Trump, 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, United States of America (Attachments: #1 Exhibit 15, #2 Exhibit 16, #3 Exhibit 17, #4 Exhibit 18, #5 Exhibit 19, #6 Exhibit 20, #7 Exhibit 21, #8 Exhibit 22)(Murley, Nicole)

Case 2:18-cv-00939-MJP Document 29 Filed 07/16/18 Page 1 of 4

The Honorable Marsha J. Pechman

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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No. 2:18-cv-0939 (MJP)
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STATE OF WASHINGTON, et al.,

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Plaintiffs,
v.

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Supplement to APPENDIX A (Dkt. 21-1)

UNITED STATES OF AMERICA, et al.,
Defendants.

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Defendants, by and through their undersigned counsel, respectfully submit the following

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Supplement to Defendants’ Appendix A, Dkt. 21-1, regarding the status of the Ms. L., et al. v. ICE,

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et al., Case No. 18-cv-0428 (S.D. Cal.) class action. Attached hereto as Exhibits 15-22 of

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Defendants’ Supplement to Appendix A, are additional materials from the Ms. L. class action that

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have been filed since the Defendant filed Appendix A on July 11, 2018, including rigorous and

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ongoing reporting requirements concerning the government’s compliance with the injunction in

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Ms. L.

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SUPPLEMENT TO APPENDIX A, DEFENDANTS’
RESPONSE IN OPPOSITION TO PLAINTIFFS; MOTION FOR
EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
STATE OF WASHINGTON, ET AL. V. UNITED STATES, ET AL.

U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: [phone]
FACSIMILE: (202) 305-700

Case 2:18-cv-00939-MJP Document 29 Filed 07/16/18 Page 2 of 4

INDEX OF SUPPLEMENT TO APPENDIX A (Dkt. 21-1)

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Exhibit

Title

15

Dkt 101, Order Following Status Conference, Ms. L. v. U.S. ICE, No. 18428 (S.D. Cal.) (July 10, 2018)

16

Dkt 105, Joint Motion Regarding Scope of the Court’s Preliminary
Injunction, Ms. L. v. U.S. ICE, No. 18-428 (S.D. Cal.) (July 13, 2018)

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Dkt 105-1, Order Granting Joint Motion Regarding Scope of the Court’s
Preliminary Injunction, Ms. L. v. U.S. ICE, No. 18-428 (S.D. Cal.)
(July 13, 2018)

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Dkt 107, Status Report Regarding Plan for Compliance, Ms. L. v. U.S.
ICE, No.18-428 (S.D. Cal.) (July 13, 2018)

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Dkt 107-1, Declaration of Chris Meekins, Ms. L. v. U.S. ICE, No. 18-428
(S.D. Cal.) (July 13, 2018)

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Dkt 108, Order Following Status Conference, Ms. L. v. U.S. ICE, No. 18428 (S.D. Cal.) (July 13, 2018)

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Dkt 109, Notice, Ms. L. v. U.S. ICE, No. 18-428 (S.D. Cal.) (July 15,
2018)

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Dkt 109-1, HHS/DHS Unified Plan of Operations For Reunification of 517 Year Old Population to Include Flow Chart and Summary of Required
Steps, July 14, 2018, Ms. L. v. U.S. ICE, No. 18-428 (S.D. Cal.) (July 15,
2018)

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SUPPLEMENT TO APPENDIX A, DEFENDANTS’
RESPONSE IN OPPOSITION TO PLAINTIFFS; MOTION FOR
EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
STATE OF WASHINGTON, ET AL. V. UNITED STATES, ET AL.

U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: [phone]
FACSIMILE: (202) 305-700

Case 2:18-cv-00939-MJP Document 29 Filed 07/16/18 Page 3 of 4

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DATED: July 16, 2018

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CHAD A. READLER
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director

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EREZ REUVENI
Assistant Director

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/s/ Nicole N. Murley____
NICOLE N. MURLEY
Trial Attorney
JOSHUA S. PRESS
Trial Attorney
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Phone: [phone]
[e-mail]

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Attorneys for the United States of America
and the Federal Defendants

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SUPPLEMENT TO APPENDIX A, DEFENDANTS’
RESPONSE IN OPPOSITION TO PLAINTIFFS; MOTION FOR
EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
STATE OF WASHINGTON, ET AL. V. UNITED STATES, ET AL.

U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: [phone]
FACSIMILE: (202) 305-700

Case 2:18-cv-00939-MJP Document 29 Filed 07/16/18 Page 4 of 4

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CERTIFICATE OF SERVICE

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I hereby certify that on July 16, 2018, I electronically transmitted the foregoing document

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to the Clerk’s Office using the U.S. District Court for the Western District of Washington’s

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Electronic Document Filing System (ECF), which will serve a copy of this document upon all

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counsel of record.

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By: /s/ Nicole N. Murley
NICOLE N. MURLEY
Trial Attorney
United States Department of Justice
Civil Division

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SUPPLEMENT TO APPENDIX A, DEFENDANTS’
RESPONSE IN OPPOSITION TO PLAINTIFFS; MOTION FOR
EXPEDITED DISCOVERY
CASE NO. 2:18-CV-00939-MJP
STATE OF WASHINGTON, ET AL. V. UNITED STATES, ET AL.

U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: [phone]
FACSIMILE: (202) 305-700

Case 2:18-cv-00939-MJP Document 29-1 Filed 07/16/18 Page 1 of 6

Exhibit 15

Case 3:18-cv-00428-DMS-MDD Document 101 29-1 Filed 07/16/18 Page 2 of 6
Case 2:18-cv-00939-MJP Document Filed 07/10/18 PageID.1976 Page 1 of 5

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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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A status conference was held on July 9, 2018, after which the parties submitted two

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Joint Status Reports. In the first of those Reports, the parties identified some disagreements

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about the processes to be followed prior to reunification of Class Members and their

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children, with a particular eye toward the reunifications of children under age 5 by the

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court-ordered deadline of July 10, 2018. The second Report provided more detailed

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information about these parents, i.e., those with children under the age of 5, and set out

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which of those parents were ineligible for reunification, which parents were ineligible for

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reunification by the July 10, 2018 deadline, how many parents had already been reunified

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with their children, which parents were eligible for reunification by the July 10, 2018

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deadline, and which parents were eligible for reunification, but not by the July 10, 2018

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deadline.
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18cv0428 DMS (MDD)

Case 3:18-cv-00428-DMS-MDD Document 101 29-1 Filed 07/16/18 Page 3 of 6
Case 2:18-cv-00939-MJP Document Filed 07/10/18 PageID.1977 Page 2 of 5

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A follow-up status conference was held on July 10, 2018, to discuss these issues

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with counsel. During that conference, the Court explained ICE’s past procedure for dealing

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with parents and children who entered ICE custody together. That procedure was geared

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toward resolving “any doubt about whether they are parent and child, and second, whether

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there is information that causes a concern about the welfare [of] the child, such as the adult

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having a significant criminal history.” (Decl. of Mario Ortiz in Supp. of Opp’n to Am.

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Mot. for Prelim. Inj. ¶¶ 3, ECF No. 46-1.)) If there were no “concerns about the family

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relationship or welfare of the child, the [parent and child would] be detained at a family

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residential center or, if appropriate, released to a sponsor or non-governmental

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organization.” (Id.) If there were concerns, the child would “be transferred to the U.S.

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Department of Health and Human Services Office of Refugee Resettlement (ORR) for care

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and placement consideration.” (Id.) The Court explained this procedure had been in effect

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for many years, and had been effective in ensuring the safety and well-being of children

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processed through ICE custody.

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The Court contrasted this procedure with the procedure for vetting sponsors for

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“unaccompanied minors” under the TVPRA. As explained during the hearing, and in

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previous orders in this case, the TVPRA was promulgated to address a different situation,

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namely, what to do with alien children who were apprehended without their parents at the

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border or otherwise. In that situation, the lengthy and intricate vetting process makes sense

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because arguably the Government is not dealing with a parent, but is instead dealing with

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perhaps another relative or even a foster-type parent. That detailed vetting process was not

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meant to apply to the situation presented in this case, which involves parents and children

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who were apprehended together and then separated by government officials. Rather, it

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appears ICE had a more streamlined procedure for that situation, as set out above.

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Both of these procedures, at their core, aim to promote the best interests of the

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children who are taken into government custody. This Court also seeks to serve that

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interest, and has attempted to do so by focusing on the two issues set out in ICE’s past

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procedure: Ensuring the adult is the parent of the accompanied child, and ensuring the
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18cv0428 DMS (MDD)

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Case 2:18-cv-00939-MJP Document Filed 07/10/18 PageID.1978 Page 3 of 5

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parent does not present a danger to the child’s welfare. Both of these concepts are built

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into the definition of the class certified by the Court, as well as the preliminary injunction.

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And in the context of this case, both of these concerns can be addressed by a process similar

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to the one previously used by ICE in dealing with parents and children apprehended

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together. Accordingly, in this case, the Government need not comply with the onerous

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policies for vetting child sponsors under the TVPRA prior to reunifying Class Members

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with their children.1 Rather, the Government need only comply with the more streamlined

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procedure set out during the hearing.

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As explained therein, that procedure allows for DNA testing of adult and child, but

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only when necessary to verify a legitimate, good-faith concern about parentage or to meet

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a reunification deadline.

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circumstances, it should be completed in accordance with Plaintiffs’ proposal in the Joint

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Status Report at pages 7-8. (See ECF No. 96.)

To the extent DNA testing is warranted under those

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On the dispute surrounding follow-up background checks of parents, the Court

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agrees with Plaintiffs that those background checks should not delay reunification.

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Certainly, if the Government has performed a background check on a parent prior to

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reunification, and that background check indicates the parent may pose a danger to the

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child, reunification need not occur unless and until those concerns are resolved. However,

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the Government must have a good faith belief that further background investigation is

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warranted before delaying reunification on that basis.

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investigations of the type contemplated by the TVPRA are not required here, and the

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Government’s inability to complete that type of background investigation prior to a

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reunification deadline will not be a valid reason for delaying reunification past a court-

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imposed deadline.

In general, background

Presumably, the Government has performed or will perform a

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The Court notes the vetting process and procedure set out by the Government here is a
matter of ORR policy. The process and procedure are not mandated by statute or
regulation.
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Case 2:18-cv-00939-MJP Document Filed 07/10/18 PageID.1979 Page 4 of 5

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background check on all parents who could fall within the Class, and those background

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checks will be completed well in advance of the reunification deadlines, which will obviate

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the need for any delays on this ground.

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The next dispute concerns background checks on other adults in the household where

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the Class Member and his or her child will reside. As with the preceding issue, these

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background checks are part of the TVPRA procedures, and they are not necessary here

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where the child is being reunited with a parent. As Plaintiffs’ counsel pointed out during

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the hearing, the touchstone here is the interest of the parent in making decisions for their

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child, and presumably the parent has the child’s best interest in mind.

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The next dispute concerns “sponsor care plans,” which is another procedure

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contemplated by the TVPRA.2 As with the procedures discussed above, the Court declines

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to require Class Members to submit these plans prior to or as a condition of reunification

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with their children.

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Next, the parties dispute whether Class Members must sign “sponsor care

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agreements” and attend legal orientation programs, again both of which are policies

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contemplated by the TVPRA. Here, as above, Plaintiffs do not object to executing these

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agreements or attending these orientation programs, provided those procedures do not

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delay reunification of Class Members and their children. The Court agrees with Plaintiffs,

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and thus declines to impose these requirements as a condition to reunification.

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The final dispute concerns children who may pose a danger to themselves or others.

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This concern is not applicable to the children under age 5 who are scheduled for

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reunification today. To the extent this concern is relevant to the older children, the parties

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may raise that issue in a further status report.

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///

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///

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The parties indicated there was also a dispute about whether Class Members must provide
a proof of address. However, Plaintiffs do not object to that requirement.
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18cv0428 DMS (MDD)

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Case 2:18-cv-00939-MJP Document Filed 07/10/18 PageID.1980 Page 5 of 5

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With these rulings, the Court anticipates the Government will be reuniting fifty-nine

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(59) Class Members with their children by the end of the day today. This will be in addition

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to the four (4) parents and children that have already been reunified.

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Counsel shall submit a further joint status report to the Court on or before 3:00 p.m.

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on July 12, 2018. That report should provide an update on Defendants’ compliance with

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the reunification deadline for children under age 5, and a status on the efforts to reunify the

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remaining members of the Class with their children over age 5. A further status conference

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shall be held at 1:00 p.m. on July 13, 2018. The Court has set up a dial in number for

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counsel and any members of the news media that wish to attend. This number is for

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counsel and media only, who should follow the steps below to connect to the conference

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call. Members of the general public may appear in person.

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1.

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);
3.

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Enter the Participant Security Code 07130428 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.

IT IS SO ORDERED.
Dated: July 10, 2018

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Case 2:18-cv-00939-MJP Document 29-2 Filed 07/16/18 Page 1 of 7

Exhibit 16

Case 2:18-cv-00939-MJP Document Filed 07/13/18 PageID.2073 Page 1 of 6
Case 3:18-cv-00428-DMS-MDD Document 105 29-2 Filed 07/16/18 Page 2 of 7

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
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE N. MURLEY
10
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
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
18
California Bar No. 94918
19 Office of the U.S. Attorney
20 880 Front Street, Room 6293
San Diego, CA 92101-8893
21 619-546-7125
22 619-546-7751 (fax)

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

23 Attorneys for Federal Respondents24 Defendants

Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice

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Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]
[e-mail]

Case 2:18-cv-00939-MJP Document Filed 07/13/18 PageID.2074 Page 2 of 6
Case 3:18-cv-00428-DMS-MDD Document 105 29-2 Filed 07/16/18 Page 3 of 7

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Petitioners-Plaintiffs,

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Case No. 18cv428 DMS MDD

MS. L, et al.,

JOINT MOTION REGARDING
SCOPE OF THE COURT’S
PRELIMINARY INJUNCTION

vs.

7 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
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Respondents-Defendants.
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In accordance with the Court’s orders and with the Court’s July 10, 2018
status conference, the parties respectfully jointly move the Court to enter the
attached Order Regarding Scope of the Court’s Preliminary Injunction. This
Proposed Order addresses compliance with this Court’s preliminary injunction. It
would provide that the Court’s preliminary injunction order in this case, or
subsequent orders implementing that order, does not limit the Government’s
authority to detain adults in the Department of Homeland Security’s (“DHS”)
custody. Accordingly, when DHS would detain a Class Member together with his or
her child in a facility for detaining families, consistent with its constitutional and
legal authorities governing detention of adults and families, but the child may be
able to assert rights under the Flores Settlement Agreement to be released from
custody or transferred to a “licensed program” pursuant to that Agreement’s terms,
then this Court’s preliminary injunction and implementing orders permit the
Government to require Class Members to select one of the following two options:
First, the Class Member may choose to remain in DHS custody together with his or
her child, subject to any eligibility for release under existing laws and policies, but

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1 to waive, on behalf of the child, the assertion of rights under the Flores Settlement
2 Agreement to be released, including the rights with regard to placement in the least
3 restrictive setting appropriate to the minor’s age and special needs, and the right to
4 release or placement in a “licensed program.” By choosing this option, the class
5 member is waiving the child’s right under the Flores Settlement Agreement to be
6 released, including the rights with regard to placement in the least restrictive setting
7 appropriate to the minor’s age and special needs, and the right to release or
8 placement in a “licensed program.” Second, and alternatively, the Class Member
9 may waive his or her right not to be separated from his or her child under this Court’s
10 preliminary injunction and assert, on behalf of the Class Member’s child, any such
11 right under the Flores Settlement Agreement for the child to be released from
12 custody or transferred to a “licensed program” pursuant to that Agreement’s terms—
13 in which circumstance the child would, consistent with this Court’s orders, be
14 separated with the parent’s consent. In implementing this release or transfer, the
15 government could transfer the child to HHS custody for placement and to be
16 otherwise treated as an unaccompanied child. See 6 U.S.C. 279(g)(2).
17

The Proposed Order provides that in neither circumstance do this Court’s

18 orders create a right to release for a parent who is detained in accordance with
19 existing law. If a Class Member is provided these two choices and does not select
20 either one, the Government may maintain the family together in family detention
21 and the Class Member will be deemed to have temporarily waived the child’s release
22 rights (including the rights with regard to placement in the least restrictive setting
23 appropriate to the minor’s age and special needs, and the right to release or
24 placement in a “licensed program”) under the Flores Settlement Agreement until the
25 Class Member makes an affirmative, knowing, and voluntary decision as to whether
26 he or she is waiving his or her child’s rights under the Flores Settlement Agreement.
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18cv428 DMS MDD

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The parties further agree that the Court’s orders in this case, and the Flores

2 Settlement Agreement, do not in any way prevent the Government from releasing
3 families from DHS custody. No waiver by any Class Member of his or her rights
4 under this Court’s orders, or waiver by the Class Member of his or her child’s rights
5 under the Flores Settlement Agreement, shall be construed to waive any other rights
6 of the Class Member or Class Member’s child to challenge the legality of his or her
7 detention under any constitutional or legal provisions that may apply.
8

The parties agree a Class Member’s waiver under the Flores Settlement

9 Agreement or this Court’s injunction can be reconsidered after it is made, but
10 disagree about whether there are circumstances when such a waiver cannot be
11 reconsidered. The parties propose to meet and confer regarding this issue, and
12 provide a joint statement to the Court addressing the results of the meet and confer
13 and, if necessary, providing statements of their respective positions – by 3:00 p.m.
14 on July 20, 2018.
15 DATED: July 13, 2018
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Respectfully submitted,
/s/ Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES

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18cv428 DMS MDD

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Case 3:18-cv-00428-DMS-MDD Document 105 29-2 Filed 07/16/18 Page 6 of 7

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P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]
[e-mail]
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice

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CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
/s/ Nicole N. Murley
NICOLE N. MURLEY
Trial Attorney
SARAH B. FABIAN
Senior Litigation Counsel
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044

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18cv428 DMS MDD

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Case 3:18-cv-00428-DMS-MDD Document 105 29-2 Filed 07/16/18 Page 7 of 7

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[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

Case 2:18-cv-00939-MJP Document 29-3 Filed 07/16/18 Page 1 of 4

Exhibit 17

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Case 3:18-cv-00428-DMS-MDD Document 105-1 Filed 07/13/18 PageID.2079 4Page 1 of 3

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11 MS. L, et al.,
Petitioners-Plaintiffs,

12
13

Case No. 18cv428 DMS MDD

vs.

14 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
15
Respondents-Defendants.
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING JOINT MOTION
REGARDING SCOPE OF THE
COURT’S PRELIMINARY
INJUNCTION

Before the Court is the parties’ Joint Motion Regarding Scope of the Court’s
Preliminary Injunction. IT IS HEREBY ORDERED that the Court’s preliminary injunction
order in this case, or subsequent orders implementing that order, does not limit the
Government’s authority to detain adults in the Department of Homeland Security’s
(“DHS”) custody. Accordingly, when DHS would detain a Class Member together with his
or her child in a facility for detaining families, consistent with its constitutional and legal
authorities governing detention of adults and families, but the child may be able to assert
rights under the Flores Settlement Agreement to be released from custody or transferred to
a “licensed program” pursuant to that Agreement’s terms, then this Court’s preliminary
injunction and implementing orders permit the Government to require Class Members to
select one of the following two options: First, the Class Member may choose to remain in

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1 DHS custody together with his or her child, subject to any eligibility for release under
2 existing laws and policies, but to waive, on behalf of the child, the assertion of rights under
3 the Flores Settlement Agreement to be released, including the rights with regard to
4 placement in the least restrictive setting appropriate to the minor’s age and special needs,
5 and the right to release or placement in a “licensed program.” By choosing this option, the
6 class member is waiving the child’s right under the Flores Settlement Agreement to be
7 released, including the rights with regard to placement in the least restrictive setting
8 appropriate to the minor’s age and special needs, and the right to release or placement in a
9 “licensed program.” Second, and alternatively, the Class Member may waive his or her
10 right not to be separated from his or her child under this Court’s preliminary injunction and
11 assert, on behalf of the Class Member’s child, any such right under the Flores Settlement
12 Agreement for the child to be released from custody or transferred to a “licensed program”
13 pursuant to that Agreement’s terms—in which circumstance the child would, consistent
14 with this Court’s orders, be separated with the parent’s consent. In implementing this release
15 or transfer, the government could transfer the child to HHS custody for placement and to be
16 otherwise treated as an unaccompanied child. See 6 U.S.C. 279(g)(2).
17

In neither circumstance do this Court’s orders create a right to release for a parent

18 who is detained in accordance with existing law. If a Class Member is provided these two
19 choices and does not select either one, the Government may maintain the family together in
20 family detention and the Class Member will be deemed to have temporarily waived the
21 child’s release rights (including the rights with regard to placement in the least restrictive
22 setting appropriate to the minor’s age and special needs, and the right to release or
23 placement in a “licensed program”) under the Flores Settlement Agreement until the Class
24 Member makes an affirmative, knowing, and voluntary decision as to whether he or she is
25 waiving his or her child’s rights under the Flores Settlement Agreement.
26

The parties further agree that the Court’s orders in this case, and the Flores Settlement

27 Agreement, do not in any way prevent the Government from releasing families from DHS
28 custody. No waiver by any Class Member of his or her rights under this Court’s orders, or
Ex Parte Motion to File Exhibits as Restricted

1

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1 waiver by the Class Member of his or her child’s rights under the Flores Settlement
2 Agreement, shall be construed to waive any other rights of the Class Member or Class
3 Member’s child to challenge the legality of his or her detention under any constitutional or
4 legal provisions that may apply.
5

The parties agree a Class Member’s waiver under the Flores Settlement Agreement

6 or this Court’s injunction can be reconsidered after it is made, but disagree about whether
7 there are circumstances when such a waiver cannot be reconsidered. They are directed to
8 meet and confer regarding this issue, and provide a joint statement to the Court addressing
9 the results of the meet and confer and, if necessary, providing statements of their respective
10 positions – by 3:00 p.m. on July 20, 2018.
11

Dated:

12
13

Hon. Dana M. Sabraw

14

United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ex Parte Motion to File Exhibits as Restricted

2

18cv428 DMS MDD

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Exhibit 18

Case 2:18-cv-00939-MJP Document Filed 07/13/18 PageID.2082 Page 1 of 5
Case 3:18-cv-00428-DMS-MDD Document 107 29-4 Filed 07/16/18 Page 2 of 6

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
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
10
Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
12
Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: [phone]
14
Fax: [phone]
15
ADAM L. BRAVERMAN
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
18
California Bar No. 94918
19 Office of the U.S. Attorney
20 880 Front Street, Room 6293
San Diego, CA 92101-8893
21 619-546-7125
22 619-546-7751 (fax)
23 Attorneys for Federal Respondents-Defendants
24
25
26
27
28

Case 2:18-cv-00939-MJP Document Filed 07/13/18 PageID.2083 Page 2 of 5
Case 3:18-cv-00428-DMS-MDD Document 107 29-4 Filed 07/16/18 Page 3 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

1
2

Case No. 18cv428 DMS MDD

MS. L, et al.,

3
Petitioners-Plaintiffs,

4

STATUS REPORT REGARDING
PLAN FOR COMPLIANCE

vs.

5

U.S. IMMIGRATION AND CUSTOMS
6 ENFORCEMENT, et al.,
7
Respondents-Defendants.
8
9
10

I.

STATUS REPORT
Defendants hereby submit this status report to apprise the Court of their

11
12 current plan for determining and reunifying the remaining class members with their
13 children, by July 26, 2018, as this Court’s orders require. The plan is set forth in the
14
Declaration of Chris Meekins, which is attached as Exhibit A. The agencies are
15
16 putting their plan into operation immediately.
17
18
19

The agencies designed the plan to achieve full compliance with this Court’s
orders, i.e., reunification of every remaining class member with their child where

20 this Court’s orders require reunification by July 26.

Meekins Dec. ¶ 28.

21 Reunifications under the plan should begin today and occur on a rolling basis. Id.
22
Unlike the plan put into place for the smaller cohort of children aged 0-4, the current
23
24 plan for children aged 5-17 does not involve DNA testing or full background
25 investigations of purported class members HHS conducts under the Trafficking
26
Victims Protection Reauthorization Act of 2008 (TVPRA). Id. ¶ 33. Nor does it
27
28
1

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1 require criminal background checks of other adult members of the household where
2 the class member and the child will live, or the submission of sponsor care plans
3
(which may require background checks of other care givers). Id.
4
5
6

While the agencies are committed to complying fully with the Court’s orders,
as explained in the attached declaration, the Department of Health and Human

7
8

Services (HHS) is concerned that the truncated procedures needed for compliance

9 present significant risks to child welfare. Meekins Dec. ¶¶ 37-49. As the declaration
10

explains, while most children should be safely reunited with their actual parents by

11
12

the Court’s deadline, the class is large and the agencies must proceed rapidly and

13 without the procedures that HHS would ordinarily use to place a child with a parent
14

safely. Id. HHS believes that this creates a material risk that dozens of children may

15
16

be reunited with individuals who falsely claimed to be their parents or placed into

17 situations that may pose a danger to the child. Id.
18

Indeed, the streamlined procedures that HHS used for the under-five cohort

19
20 identified several instances in which placement of a toddler or infant with a
21 purported parent was inappropriate. In one case, mandatory DNA testing prompted
22

one putative class member to concede her lack of parentage during testing. Meekins

23
24 Dec. ¶ 11. Another putative class member had a negative DNA match and conceded
25 that he was not a parent. Id. ¶ 10.
26

And in another case, HHS conducted a

background check of an adult member of the putative class member’s household and

27
28
2

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1 identified that the adult had a warrant for sexually abusing a 10-year-old girl. Id.
2 ¶¶ 14-16.
3
Defendants believe they are now taking all operationally feasible steps under
4
5 the Court’s orders to reunify hundreds of class members and children safely. But
6

going forward, HHS will not be able to do the same rigorous vetting that has already

7
8

prevented the placement of toddlers and infants with adults who were not their

9 parents or would have endangered them. Meekins Dec. ¶¶ 37-49. The Court’s
10

restriction of vetting of putative class members for the 5-and-up cohort will likely

11
12

mean that some children in that cohort will be at risk of improper placements. Id.

13 Given the agencies’ reported figures on the size of the 5-and-up cohort
14

(approximately 2,500 children), the number of placements of children with adults

15
16

who are not their parents or who might endanger them could be significant. Id. ¶ 47.

17 Defendants hope that such risks will not materialize, or do so as rarely as possible,
18

and the covered families will be reunited safely.

19
20
21
22
23
24
25
26
27
28
3

18cv428 DMS MDD

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1 DATED: July 13, 2018

Respectfully submitted,

2

CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director

3
4
5
6
7
8

/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]

9
10
11
12
13
14
15
16
17

ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney

18
19
20
21

Attorneys for Respondents-Defendants

22
23
24
25
26
27
28
4

18cv428 DMS MDD

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Exhibit 19

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Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2087 18

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Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2088 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 4 of Page 3 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2089 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 5 of Page 4 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2090 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 6 of Page 5 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2091 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 7 of Page 6 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2092 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 8 of Page 7 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2093 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 9 of Page 8 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2094 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 10 of Page 9 of 17
Case 3:18-cv-00428-DMS-MDD Document 107-1 Filed 07/13/18 PageID.2095 18

Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 11 18
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Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 12 18
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Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 13 18
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Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 14 18
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Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 15 18
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Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 16 18
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Case 2:18-cv-00939-MJP Document 29-5 Filed 07/16/18 Page 17 18
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Exhibit 20

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Case 2:18-cv-00939-MJP Document Filed 07/13/18 PageID.2104 Page 1 of 6

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Ms. L.; et al.,

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

12
13

v.

14

ORDER FOLLOWING STATUS
CONFERENCE

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

15
16

Respondents-Defendants.

17
18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

the Class “migrant parents with criminal history or communicable disease” and parents
1
18cv0428 DMS (MDD)

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1

who were “unfit or present[ed] a danger to the child.” The Court reiterated these concerns

2

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

3

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

4

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

5

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

6

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

7

their parents pursuant to this Court’s injunction.

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

Christopher Meekins, the Deputy

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

“be transferred to the U.S. Department of Health and Human Services Office of Refugee
2
18cv0428 DMS (MDD)

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1

Resettlement (ORR) for care and placement consideration.” (Id.) It was the Court’s intent

2

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

3

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

4

separation policy.

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

has apparently taken it.

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

Court’s rulings requiring Defendants to make determinations about parental fitness and
3
18cv0428 DMS (MDD)

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1

danger to the child prior to reunification. Unfortunately, HHS appears to be operating in a

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

family

Mr.

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

resources available to the federal government.

24

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

25

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

26

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

27

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

28

///

The task is laborious, but can be

4
18cv0428 DMS (MDD)

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1

Accordingly, IT IS HEREBY ORDERED:

2

1.

3

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

4

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

5

age 5.

6

2.

7

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

8

currently subject to reunification with Class Members.

9

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

10

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

11

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

12

child.

13

4.

14

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

15

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

16

of parents in ICE custody who are ineligible for reunification.

17

5.

18

provide Plaintiffs with 12 hours notice of each reunification.

19

6.

20

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

21

representative from HHS personally appear at this conference.

22

7.

23

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

24

8.

25

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

26

9.

27

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,

28
5
18cv0428 DMS (MDD)

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Case 2:18-cv-00939-MJP Document Filed 07/13/18 PageID.2109 Page 6 of 6

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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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1.

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);
3.

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

4.

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)

Case 2:18-cv-00939-MJP Document 29-7 Filed 07/16/18 Page 1 of 8

Exhibit 21

Case 3:18-cv-00428-DMS-MDD Document 109 29-7 Filed 07/16/18 Page 2 of 8
Case 2:18-cv-00939-MJP Document Filed 07/15/18 PageID.2110 Page 1 of 7

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
6
WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
8
SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE MURLEY
10
Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
12
Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: [phone]
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Fax: [phone]
15
ADAM L. BRAVERMAN
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
18
California Bar No. 94918
19 Office of the U.S. Attorney
880 Front Street, Room 6293
20
San Diego, CA 92101-8893
21 619-546-7125
22 619-546-7751 (fax)
23 Attorneys for Federal Respondents-Defendants
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Case 3:18-cv-00428-DMS-MDD Document 109 29-7 Filed 07/16/18 Page 3 of 8
Case 2:18-cv-00939-MJP Document Filed 07/15/18 PageID.2111 Page 2 of 7

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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NOTICE

vs.

U.S. IMMIGRATION AND CUSTOMS
6 ENFORCEMENT, et al.,
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Respondents-Defendants.
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Defendants hereby submit this notice in response to the Court’s order of July

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11 13, 2018, including its modifications to the June 26, 2018, order. Defendants are
12 devoting extraordinary resources to comply fully with this Court’s orders, and to do
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so in good faith. Through this extraordinary effort, HHS was able to substantially
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15 comply with this Court’s July 12, 2018, deadline with respect to children aged four
16 and under. See July 13 Order at 4. HHS is also committed to meeting the Court’s
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July 26, 2018, deadline for the children who are aged five and over. In response to
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19 the Court’s concerns, set forth below is a clarification of some points of potential
20 confusion about how the reunification plan works. A plan document itself (“Plan”)
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is attached. Under the reunification plan, and consistent with the Court’s orders,
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23 Defendants will not reunify a child without first making “determinations of
24 parentage, fitness and danger.” Id.
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In particular, under the plan, the Department of Health and Human Services
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27 (HHS) makes determinations of parentage based on information that goes beyond
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18cv428 DMS MDD

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1 what U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and
2 Border Protection (CBP) would typically have available to them. First, unlike a
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typical alien child in HHS custody who arrives alone, here there is preexisting
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5 evidence of parentage: The adult arrived at the border and presented as a family,
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with the child; the putative parent said they were a family; and CBP treated them as

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a family unit. See Meekins Dec. ¶ 45.
Second, the children have now been in the care of HHS Office of Refugee
Resettlement (ORR) for several weeks. While CBP and ICE are tasked with

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enforcing the immigration laws, 8 U.S.C. 1103(a); 6 U.S.C. 211(c)(8), 251, ORR’s

13 mission is to protect children, including unaccompanied alien children in its care,
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6 U.S.C. 279(b); 8 U.S.C. 1232(c)(1). The personnel at ORR shelters have had

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many opportunities, over a considerable span of time, to interact with the children

17 and make notes in their files, including of risks of smuggling or abuse. See Meekins
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Dec. ¶ 36.

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Third, by definition, this cohort of children is older (aged 5 and over), and

21 thus can communicate. A child thus could potentially tell ORR staff, for example,
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that the adult who they arrived with is not their parent but an adult they were bundled

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24 or trafficked with, without the adult standing right there. Finally, the file may also
25 include documentation voluntarily provided by the adult or plaintiff’s counsel. See
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Meekins Dec. ¶ 36.

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18cv428 DMS MDD

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Under the plan, HHS reviews the files for each child—including all the

2 information mentioned above—before proceeding with reunification. See Plan at 2;
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Meekins Dec. ¶ 36. HHS believes that in the large majority of cases, there will be
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5 no such indicia of trafficking in the records, and the constellation of evidence above
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will support the adult’s assertion of parentage. See Plan at 2; Meekins Dec. ¶¶ 36-

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37. If so, HHS will determine that the adult is a parent, thus proceeding with the

9 swift reunification plan. Id. Finally, HHS also conducts a final 15-minute interview
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of the parent at the ICE facility, which can provide further confirmation of that

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determination. See Plan at 3; Meekins Dec. ¶ 35. Absent a red flag, HHS will then

13 transfer the child to ICE custody, completing the reunification. Id. But if the
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interview raises a red flag (or if a red flag caused HHS not to proceed to the interview

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in the first place) then, consistent with the order, reunification will not be completed

17 and instead HHS undertakes additional scrutiny. See Plan at 2-3; Meekins Dec. ¶ 37.
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HHS thus will reunify families if and only if HHS has made a determination of

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20 parentage. See Plan at 1; Meekins Dec. ¶ 42.
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This plan does not include, however, “affirmative verif[ication]” of parentage
for each adult in the manner HHS does in its ordinary operations under the TVPRA.

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24 Meekins Decl. ¶ 39. Affirmative verification is different from the determination
25 described above. In its ordinary operations, HHS affirmatively verifies parentage
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using documentary evidence (e.g., birth certificates), which are typically obtained

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18cv428 DMS MDD

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1 through consular channels. Id. ¶ 46. That process can take months, and thus much
2 too long to comply with the Court’s reunification deadline. Id. HHS may also use
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DNA testing to affirmatively verify that an adult is a biological parent, as it did with
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5 the four-and-under cohort. See id. ¶ 23. (A negative DNA test, however, does not
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conclusively disprove legal parentage, but instead triggers further inquiry.) HHS

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views those processes as allowing for conclusive verification that an adult is a parent,

9 without relying on other evidence, at the highest degree of accuracy. See id. ¶¶ 4410

48. But DNA testing of all or virtually all the remaining parents and children here

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would be inconsistent with the Court’s orders, see July 10 Order at 3, and HHS

13 estimates it would “stretch the time required to comply by months,” Meekins Dec.
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¶ 31. HHS thus has instead determined that it need not perform DNA testing when

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it can make a determination of parentage based on the significant information

17 described above. See Plan at 1-3.
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As Defendants have explained in prior filings, there is an unavoidable

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20 difference between the accuracy of using HHS’s ordinary processes for affirmatively
21 verifying parentage in the absence of other information for every adult, and the
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accuracy of determining that an adult is a parent based on the information available

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24 via this process. See Meekins Dec. ¶¶ 43-48. Those concerns remain, as do risks
25 associated with that difference. See id. But Defendants have been striving to comply
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with the Court’s orders in good faith, and the plan indeed requires HHS to make a

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18cv428 DMS MDD

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Case 2:18-cv-00939-MJP Document Filed 07/15/18 PageID.2115 Page 6 of 7

1 determination of parentage, based on the information available to it, before
2 reunifying families within the deadlines.
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This Court’s order of July 13, 2018, imposes two new requirements, however:
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5 (1) that, absent a showing of good cause, Defendants shall complete the
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determination of parentage by a new, earlier deadline (July 19, 2018), to include

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DNA testing, if necessary; and (2) that Defendants shall provide Plaintiffs with 12

9 hours’ notice of each reunification. July 13 Order at 5. In response to that order,
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Defendants have already added to the plan the use of DNA testing as a method for

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resolving red flags about parentage. See Plan at 3. Defendants are currently

13 considering what additional modifications they need to make to the plan to comply
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with the Court’s new requirements, as well as its prior deadlines and orders, and

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whether Defendants will seek further clarification or partial relief. We will also seek

17 guidance from the Court to ensure that the current plan is consistent with the Court’s
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orders.

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18cv428 DMS MDD

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1 DATED: July 15, 2018

Respectfully submitted,

2

CHAD A. READLER
Acting Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director

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/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

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Attorneys for Respondents-Defendants

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18cv428 DMS MDD

Case 2:18-cv-00939-MJP Document 29-8 Filed 07/16/18 Page 1 of 5

Exhibit 22

Case 3:18-cv-00428-DMS-MDD Document 109-1 Filed 07/15/18 PageID.2117 5Page 1 of 4
Case 2:18-cv-00939-MJP Document 29-8 Filed 07/16/18 Page 2 of

HHS/DHS UNIFIED PLAN OF OPERATIONS
FOR REUNIFICATION OF 5-17 YEAR OLD POPULATION TO INCLUDE FLOW CHART AND
SUMMARY OF REQUIRED STEPS
14 JULY 2018

OPERATIONAL SCOPE:
1. Swift reunification of adults and children from age group 5-17 subsequent to
separation, after determination of parentage, fitness, and danger.
2. There will be a total of eight ICE locations that will operate for as long as
necessary to effect efficient reunification of children with parents. There will be a
population of no more than 50 (estimated) children that will require transport to
locations outside of the three ICE AORs for individual reunification. This will be
coordinated with the HHS IMT and the ICE LNOs on site at HHS.

LOGISTICS AND POTENTIAL LIMITING FACTORS:
1. Strict coordination and adherence to agreed upon planning and operational factors
by all involved.
2. The requirement for HHS to transfer and ICE to receive high volumes of children at
pre-designated sites. EXTENDED HOURS OF OPERATIONS OR 24/7 OPERATIONAL
PERIODS MAY BE REQUIRED, AS INDICATED.
3. ICE will incur all costs for the transportation of the adult population and HHS will
incur the cost of moving the child (to pre-designated location). ICE will transport
the reunited families, adults and minors as necessary, following reunification.

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Case 2:18-cv-00939-MJP Document 29-8 Filed 07/16/18 Page 3 of

HHS/DHS UNIFIED PLAN OF OPERATIONS
FOR REUNIFICATION OF 5-17 YEAR OLD POPULATION TO INCLUDE FLOW CHART AND
SUMMARY OF REQUIRED STEPS
14 JULY 2018 (Page 2)

OPERATIONAL REQUIREMENTS AND PLANNING EFFORTS:
A. ICE will provide NCIC background information. ORR to review and assess for
criminal concerns. ICE will provide additional category of “convicted” vs.
“charged” for the adult population identified with concerns from the NCIC review
(step 1 in the process flow). ICE will be responsive to all requests for additional
information to expedite “clearance” or “removal” of adult from the certification list
for reunification.

B. ORR to review case file to identify any pertinent “red flags”, eg: the child was not
accompanied by a parent, was smuggled, or would otherwise be subject to
safety/security concerns. Home studies are performed only in the following cases:
(1)

a child who is a victim of a severe form of trafficking in persons;

(2)

a special needs child with a disability;

(3)

a child who has been a victim of physical or sexual abuse under

circumstances that indicate that the child’s health or welfare has been
significantly harmed or threatened; or
(4)

or a child whose proposed sponsor clearly presents a risk of abuse,

maltreatment, exploitation, or trafficking to the child based on all available
objective evidence.
C. If red flags, ORR will undertake further review and action as appropriate. If ORR
finds no red flags, proceed towards reunification on track below.
D. ORR will create and publish daily updated lists of “request to interview” (RTI)
adults for reunification.
E. ICE Field Offices will review the A#’s submitted by ORR using EARM and flag if any
adults have an executable Final Order.
F. ICE will notify HHS/ORR/SOC immediately if the adult elects to be removed without
the child (and all supporting paperwork MUST be forwarded to HHS/ORR/SOC or be
made immediately available through electronic links between HHS and ICE.
G. ICE to move selected adult population to identified sites for Field Team Interview
(there will be a few isolated individuals outside of the three selected ICE AORs
who are currently closer to their minor child in ORR care).

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HHS/DHS UNIFIED PLAN OF OPERATIONS
FOR REUNIFICATION OF 5-17 YEAR OLD POPULATION TO INCLUDE FLOW CHART AND
SUMMARY OF REQUIRED STEPS
14 JULY 2018 (Page 3)

H. ICE will NOT transfer any pending adults for reunification outside or away from the
three ICE AORs. ICE will transfer all non-executable Final Orders and litigation
pending cases (except PHO, ELP, SNA, to SNA AOR – but will not do so, as stated

above, if children are already in the same AOR as the adult.
I. HHS contractor to perform intake of adult (15 min interview).
J. If HHS contractor finds red flags, undertake further review and action as
appropriate. If HHS contractor finds no red flags, complete reunification as below.
K. ICE will support HHS/ORR authorized personnel at reunification sites for parental
screening procedures.
L. Contractor to notify IMT of “green” status of adult population (from list) and IMT to
execute logistical plan for child to move to designated location within 06-48 hours
of notification of final clearance.
M. ICE will conduct final check and confirm “greenlight” on reunification (with ORR).
N. Child is transported to designated location.
O. Paperwork exchange, transfer of responsibility between agencies and reunification
occurs.
P. ICE to coordinate with MVM to dispatch reunited family to a pre-identified NGO
release location. To request assistance through this program, email the MVM
Command Center at [e-mail]. Also copy Supervisory
Detention and Deportation Officer Roberto R. Salazar, at
[e-mail]. MVM may also be contacted via phone at (956)
621-7920

PLEASE SEE FLOW CHART ON THE FOLLOWING PAGE

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Case 2:18-cv-00939-MJP Document 29-8 Filed 07/16/18 Page 5 of
UAC Population
5-17 years old

UAC Reunification Process

NCIC Check/ICE
A # Categorization of
Conviction

Conducted
Concurrently

Red
Flags?

YES

ICE Review of conviction
w/determination of
proceedings

A# & Name to ICE
for determination
of conviction

NO
ORR Case Manager Review
(Significant child safety
concern or indications of
non parentage)

Red
Flags?

YES

NO

Cleared by ICE?

DNA Test for
Adult and Child

DNA Match?

NO

YES

ACLU & ICE receives request for
interview (RFI) from HHS. ICE
returns executable Final Order
list allowing interviews

NO

ORR performs statutory
requirements and
determination

ICE notifies ORR/SOC if parent
elects to not be removed w/child
and update list

Sponsorship Verification @
ICE Designated Locations
Reunification Decision

Red
Flags?

YES

NO

Cleared by
ORR?

NO

Parent
available?

YES

NO

YES

ICE identifies and hold
adults w/children in
same area of
responsibility.

Parent desires
reunification?

NO

YES
ORR Transfers Child to
Target Detention Facility

NO

YES

Reunification within 24-48
Hours
YES

ICE to Coord w/MVM to
dispatch reunited family to
pre-identified release
location

Did child
become ill in
ORR Care?

Illness resolved?

Due Diligence
Actions in the
Interest of the Child

NO
Child remains in
ORR Care for
placement