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

Filing 35

NOTICE of Supplemental Authority re #33 Notice of Supplemental Authority,, #22 MOTION to Dismiss 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 1, #2 Exhibit 2, #3 Exhibit 3)(Press, Joshua)

DEFENDANTS’
EXHIBIT 2

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ESRB,

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Plaintiff,

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v.
JEFFERSON BEAUREGARD SESSIONS,

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PART I

Defendant.
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July 24, 2018
2:45 p.m.

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Before:
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HON. JED S. RAKOFF,
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District Judge
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APPEARANCES
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THE LEGAL AID SOCIETY
Attorneys for Plaintiff
SARAH GILLMAN
GREGORY COPELAND
JENNIFER LEVY

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GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
MICHAEL J. BYARS
BRANDON M. WATERMAN
Assistant United States Attorneys

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(Case called)

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THE DEPUTY CLERK:

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Will everyone please be seated, and

would the parties please identify themselves for the record.
MR. COPELAND:

Gregory Copeland of The Legal Aid

Society for the plaintiff petitioner.

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MS. GILLMAN:

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for the plaintiff petitioner.

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MS. LEVY:

Sarah Gillman, The Legal Aid Society,

Jennifer Levy, The Legal Aid Society, for

the plaintiff petitioner.
MR. BYARS:

Assistant U.S. Attorney Michael Byars for

the respondent.
MR. WATERMAN:

Assistant U.S. Attorney Brandon

Waterman on behalf of the respondents.
THE COURT:

So I have received a copy of the proposed

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order to show cause, as well as the memorandum of law in

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support of the order to show cause and the underlying

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complaint.

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I would have thought that the proper way to proceed is

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to give the government a short window to put in responding

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papers, provided that the status quo remain as is during that

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short period.

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So I was thinking maybe the government could get in

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their papers by Thursday morning, and we could hold oral

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argument and if necessary -- well, we would hold oral argument

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on Thursday afternoon, and if there was an evidentiary hearing
SOUTHERN DISTRICT REPORTERS, P.C.
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that was needed, then we could hold that on Friday.

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So any objections to that?

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MS. GILLMAN:

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No, your Honor, we do not object to

that.

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MR. BYARS:

Your Honor, this schedule raises some

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concern for the government.

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the issue of the reunification of parents and children is under

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active management by Judge Sabraw in the Southern District of

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California.

As I am sure your Honor is aware,

The judge set a deadline Thursday for

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reunifications to take place and the government is working to

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make sure that that happens.

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Last Monday, shortly before 8 p.m., the government was

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notified of an action in Part I before Judge Swain.

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appeared Monday night.

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We

restraining order.

Judge Swain entered a temporary

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THE COURT:

Are you talking about last week?

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MR. BYARS:

Yes.

The case was sent to Judge Furman.

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We saw him the next day.

Then on Thursday of last week, Judge

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Furman entered an order transferring that case to the Southern

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District of California, and I am happy to hand up a copy of the

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order.

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THE COURT:

I have a copy.

Thank you.

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MR. BYARS:

I would like to draw your attention, your

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Honor, if I may, to the bottom of page 4, in which Judge Furman

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says, "To preserve the status quo, the temporary relief granted
SOUTHERN DISTRICT REPORTERS, P.C.
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by the court on July 17, 2018, Docket No. 9, is extended to

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give Judge Sabraw an opportunity to consider plaintiff's

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request for broader emergency relief.

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promptly present those issues to Judge Sabraw so he can decide

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whether to maintain, modify, or vacate the order granting

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temporary relief."

The parties should

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I am hard-pressed to understand what Legal Aid is

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asking for in this action that is not encompassed by Judge

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Furman's direction, and it raises some very real practical

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concerns.

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Judge Sabraw held a hearing.

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Service Jonathan White appeared and established to Judge

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Sabraw's satisfaction that a 12-hour notice period prior to

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transporting these children was not needed and would interfere

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with the logistics of reuniting these children with these

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parents.

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anywhere else but in the Southern District of California.

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I would note that all of the parents whose children are

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represented here, all of these parents have told HHS that they

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want their children, and they want them as soon as possible.

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On the day that we appeared before Judge Swain,
Commander of Public Health

I am not sure why these issues should be determined
And

Now, the Southern District of California court was

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open last night when we received notice from Legal Aid at 8:19

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p.m., 5:19 p.m. California time.

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would have been open after-hours.

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THE COURT:

That court was open.

It

Are you sure it wasn't closed at 5 p.m.?

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I don't know, but most courts do close at 5 p.m., and my many

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wonderful trips to California suggest to me that working

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overtime is not their favorite occupation.

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think that court was open?

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MR. BYARS:

So what makes you

Judge Sabraw has a jury trial ongoing.

I

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am sure that Legal Aid could have reached out, certainly this

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morning before today's hearing.

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is a hearing today on the case at 3 p.m.

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THE COURT:

It's almost noon there.

There

Just so I understand what your proposal

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is.

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Judge Sabraw?

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show cause?

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hearing anything further from the government in terms of

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written submissions?

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specifically asking for.

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Is your proposal that I transfer this matter forthwith to
Is your proposal that I simply deny the order to

Is your proposal that I do all that without

MR. BYARS:

I just want to be clear what you're

I would ask for an immediate transfer of

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this case to Judge Sabraw.

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case should be -- we can certainly brief the case, but I think

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that any interim relief that your Honor were to consider here

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is plainly going to delay reunifications of children with

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parents who have asked to be reunified with their children, and

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that should not happen.

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that Judge Sabraw has put in place requiring reunifications by

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Thursday, and it's just going to slow everything down.

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Absent that, then I think that the

It would contradict the court order

Moreover, it appears that what Legal Aid wants to do
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is to force the parents to come to New York in order to get

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their children, and testify in a proceeding here to the

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satisfaction of Legal Aid before they can do that.

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seems completely contrary to the case's active management in

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the Southern District of California.

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guardian ad litem here.

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their decision is and their decision should be given effect.

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THE COURT:

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MS. GILLMAN:

That just

Legal Aid is not a

The parents here have indicated what

Let me hear from plaintiff's counsel.
Thank you, your Honor.

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So we come here today with a very simple ask.

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simply asking that our clients, the eight children that we have

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brought this individual habeas action on behalf of, be given

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the opportunity to have a meaningful conversation with their

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parents before they make what would be the most important

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decision in their young lives.

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very simple issue of reuniting the parents and the children,

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but the Legal Aid Society here is representing in this

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particular action before your Honor eight individuals, who

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range in age from 9 to 17, who were forcibly separated from

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their parents.

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We are

The government frames this as a

The reason that we brought this action before your

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Honor is because the government notified the plaintiff's

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counsel that transfer of these children outside the

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jurisdiction of New York was going to happen imminently.

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Number one, we got this notification very late on
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Saturday night.

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facilities that are run by the Office of Refugee Resettlement.

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Those facilities are not open on the weekend, and so that made

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any communication even with counsel seriously difficult.

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The plaintiffs are currently housed in

Next, your Honor, again, we are dealing with children

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between the ages of 9 and 17.

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here.

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before your Honor.

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we are talking about five parents for eight children.

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We are not making a big ask

There is a group of children who are in our papers

THE COURT:

There's four children and one family.

So

I guess what I am unclear about is the

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government, if I understand it, says that all the children,

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including, presumably, these eight, were being reunified with

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their parents.

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So if that's true, isn't that what you wanted?

MS. GILLMAN:

Your Honor, we do not oppose

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reunification.

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individual children, eight of them, and in order to ensure that

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their rights are protected, including, but not limited, the

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right to seek any independent relief such as asylum, that they

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have the opportunity to have a meaningful communication with

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their parents.

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However, we are here representing the

THE COURT:

Presumably, the way to have that is, in

the first instance, by reuniting them.
MS. GILLMAN:

Your Honor, the reunification of our

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clients, if it was to take place under the framework that the

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government is proposing, would not allow for meaningful
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communication, number one, between the plaintiffs and their

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counsel.

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these children and their parents are going to be reunited.

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They have indicated sort of a suggestion as to where they are

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going to be reunited.

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which is that these children cannot be placed in facilities

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that are not in compliance with the Flores settlement.

Number two, the defendants have not indicated where

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THE COURT:

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MS. GILLMAN:

But there is another issue at play here,

How did you come to represent these eight?
The Legal Aid Society, part of our

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office, your Honor, is comprised of a youth project.

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project does outreach with children who are in the custody of

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Office of Refugee Resettlement.

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a larger group of children that were part of litigation that

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was brought last week, which the government made reference to,

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and these children are being represented by the Legal Aid

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Society through our youth project.

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THE COURT:

The youth

These eight children are from

Did these children request your

representation?

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MS. GILLMAN:

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THE COURT:

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MS. GILLMAN:

Yes, they did, your Honor.

In what form did they do that?
The way that the youth project works is

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that we receive referrals from agencies that go in and

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initially meet with children in ORR custody.

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referral is sent to us, we go and meet with the individual

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children at the facilities.

And then once a

In this particular instance, the

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facilities are in New York, and the children indicated what

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their wishes were to us, and we have then followed through with

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those wishes, in terms of what we have stated in the papers.

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THE COURT:

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So with respect to these eight children, what form is

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Let me go back to defense counsel.

reunification taking and when?

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MR. BYARS:

My understanding is that they would be

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transported to meet with their parents on, I believe, as early

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as tomorrow the transportation would take place.

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THE COURT:

Transportation to where?

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MR. BYARS:

Well, it depends on where their parents

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are located, but, presumably, some of them are located in

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Texas.

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THE COURT:

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the California federal judge?

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MR. BYARS:

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It's all under the supervision of that

judge, yes, your Honor.

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And this is all pursuant to the order of

THE COURT:

Is the timetable one that that judge set

MR. BYARS:

The deadline for Thursday's reunifications

or not?

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to be completed is set by the Southern District of California,

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by Judge Sabraw.

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THE COURT:

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If these children are all going to be taken as early

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Let me go back to plaintiff's counsel.

as tomorrow, and no later than Thursday, to be reunited with
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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their parents, I am at a loss to see why you object to that.

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MS. GILLMAN:

Well, the issue, again, your Honor, is

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that the government has not indicated what this reunification

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means, meaning what happens after there is reunification with

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the parents.

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then be detained in a facility that is not compliant with the

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Flores settlement?

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and child will be deported?

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THE COURT:

Does that mean that the child and the parent will

Does the reunification mean that the parent

Aren't those the kind of issues that are

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before the judge in California?

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MS. GILLMAN:

They are not, your Honor.

The Ms. L

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class represents the parents and not children, and that's why

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we had to come before your Honor on behalf of these eight

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children.

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government, and as your Honor just previously asked defense

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counsel, we don't know what is going to happen after they are

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moved to be with their parents, and therein lies the problem.

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Because of the fact that they were separated from their

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parents, because of the fact that they were children --

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If the children are sent, as per the plan of the

THE COURT:

But if the judge in California is dealing

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with reunification from the standpoint of the parents, doesn't

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it make sense, if there are separate interests involving the

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children, that those also be litigated before that same judge?

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MS. GILLMAN:
Honor.

Not in this particular instance, your

Again, I am sorry that I keep repeating myself, but we
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are dealing with eight young children.

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that they were separated from their parents, they have

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obviously experienced trauma.

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action before your Honor who suffers from attention deficit

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disorder, who really has been suffering within the context of

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the facility and the separation from his parent.

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litigation simply seeks to reunify, but it's not representing

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the interests of the eight plaintiffs that come before your

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Honor.

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THE COURT:

By virtue of the fact

We have one plaintiff in our

The Ms. L

If I were to transfer this case to

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California, then you, or your California co-counsel, would

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still have full standing to represent the interests of those

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children there.

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MS. GILLMAN:

Well, your Honor, I think there are a

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couple of problems there.

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referenced, and as is set forth in our moving papers, they are

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also under the requirements of the order that was issued by the

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Honorable Swain last Monday.

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required that there be meaningful communication and that

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specifically the government advise within 48 hours of the

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purpose of the release, detention, or repatriation.

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been advised of any of those things.

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Number one, as defense counsel

Within that order, Judge Swain

We haven't

Moreover, again, the action here before your Honor

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really just involves -- it's a very minimal ask.

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asking that the children be able to communicate with their
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

We are simply

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parents, and that that be facilitated by the parents being

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brought to New York so they can actually engage in this

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communication.

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jurisdiction, it's going to be impossible for them to engage in

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that meaningful communication.

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If they are transferred out of this

THE COURT:

Again, these children --

That's what I am not fully understanding.

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Why are they going to have any less meaningful communication in

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Texas, for example, where I gather some will be reunited, than

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here?

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MS. GILLMAN:

Well, I think there's a few things.

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first thing is we don't know what will happen to them upon

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transfer to Texas.

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they get there.

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deported?

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independent claims?

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The

We just simply don't know that.

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So we don't know what the purpose is once

Are they being deported?

Are they not being

Are they going to be able to proceed with their own
And again, that's not something we know.

The second thing is that their attorneys are here in

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New York, and we think that it's incredibly important for them

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to be able to consult with their parents and then have the

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ability to consult with their attorneys.

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Third, I think that again, as I referenced before, we

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are not dealing with simply the transfer of -- just the general

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transfer.

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through an incredibly difficult time, and if they are sent to

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the detention facilities that the government -- again, we don't

These are children, again, who are just going

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exactly know what facilities they are; we don't know what

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accommodations are there for these children.

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These children right now are in facilities in New York

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that, although it's very difficult for them, although they are

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separated from their parents, although they are going through

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trauma, at least in these facilities, these facilities are

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compliant with the requirements of the Flores agreement, which

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allows for certain accommodations to be made for these

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children.

If these children are transferred across the country

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to various detention facilities, we have no indication of what

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those facilities will be.

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Therefore, the idea that they can engage in meaningful

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communication and meaningful consultation is virtually

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impossible, because you're taking someone who has already been

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traumatized, you're sending them from a facility that, although

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not perfect, not their home, not with their parent, actually

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does have some level of care that can address these child's

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needs, and then you're transferring them out of that facility,

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where they have already been transferred from their parents

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forcibly, and they are put in a situation where we don't know

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what is going to happen.

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Again, we are simply asking for a very small ask, and
I think your Honor's -THE COURT:

I am trying to get down to the

practicalities of this.

The government says it's under an

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order from the judge in California to reunite children and

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parents by Thursday.

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correctly, that's fine, but they need to be reunited here

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rather than someplace else so that they can have, in effect,

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communication with you.

And you say, if I understand you

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Do I have that right so far?

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MS. GILLMAN:

Yes, your Honor.

I think we are also

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asking that our clients' wishes be adhered to here.

If they

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are transferred out of this jurisdiction, I don't think that

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their wishes would be adhered to for all the reasons I

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previously stated.

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The other issue we have here, your Honor, and why we
had to come before you today --

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THE COURT:

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reunited with their parents?

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Isn't their single biggest wish to be

MS. GILLMAN:

No, your Honor.

Some of the children

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who are here before you today are actually very, very scared of

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going back to their country, and they would like the right to

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pursue their own independent claim for asylum.

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Honor can understand, we are dealing with a situation where

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these children are left in a situation where they are being

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told you have to reunify with your parents, but you're not

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really being told what that means, and where you're going, and

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whether or not you're going to have the right to actually

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proceed with your own application for relief.

But as your

And in the same

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time, you're dealing with a group of children who have just

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suffered trauma and will continue to suffer trauma.

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And the problem with what the government is proposing,

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and I guess their objection to what we have proposed to your

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Honor, is that there hasn't been meaningful notice provided to

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our clients.

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very late on Saturday evening, and that notification did not

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provide any substance.

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going to be transferring these children.

10

Again, we received an e-mail notification very,

The only thing it provided was, we are

I think what your Honor proposed in the initial ask to

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both the plaintiff and the defendant is more than reasonable.

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We are, again, speaking about five parents here.

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talking about thousands of parents.

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parents, eight children.

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that they have the opportunity to meaningfully engage with

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their parents and make a decision after that is done.

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just impossible to do if they are taken from New York and

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transferred across the country.

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country in all cases, because I think some of these facilities

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are in Texas, so I guess partially across the country.

We are not

We are talking about five

And all we want to do is make sure

And it's

I don't want to say across the

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THE COURT:

Let me hear from defense counsel.

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MR. BYARS:

A couple of points, your Honor.

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The Legal Aid attorneys sitting here today have

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entered appearances -- at least Mr. Copeland and Ms. Gillman

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have -- in the Southern District of California.
SOUTHERN DISTRICT REPORTERS, P.C.
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The case that

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they filed last week has been transferred to the Southern

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District of California before Judge Sabraw.

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THE COURT:

These children?

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MR. BYARS:

The case that was filed in Part I last

5

week, the putative class action involving the interest of the

6

children that Ms. Gillman has been describing, that case has

7

been transferred by Judge Furman.

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THE COURT:

Were any of these eight individual

plaintiffs in that case?
MR. BYARS:

My understanding, and you can perhaps

11

confirm with Legal Aid, but they were purporting to represent

12

70 children.

13

speaking of now are eight out of the 70 children that were

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potential class members in last week's action.

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I understand that the eight that they are

THE COURT:

Let me just stop you there to make sure

your adversary agrees with that.
Were these eight within the group that Legal Aid filed
on behalf of the 70?
MS. LEVY:

Yes, your Honor.

These clients were

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clients of Legal Aid's, but the proceeding that we filed last

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week was one that sought the 48 hours' notice; it did not seek

22

this relief on behalf of the plaintiff children.

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was we filed that case.

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Saturday night of 50 of our clients.

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THE COURT:

What happened

We received minimal notice late on

I have heard about minimal notice on

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Saturday night.

2

I, myself, was of course in chambers working.

Let me go back a step.

You filed an action on behalf

3

of 70 children, a class action that was filed initially before

4

Judge Furman; is that right?

5

MS. LEVY:

6

MS. GILLMAN:

It was initially filed -Sorry, your Honor.

So the action was

7

initially before, of course, Judge Swain because she was the

8

Part I judge.

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THE COURT:

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Then it was assigned to Judge Furman.

MS. GILLMAN:

So the eight children that we are

11

speaking about here today were not individual plaintiffs in

12

that action.

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THE COURT:

They were just members of the class.

14

MS. GILLMAN:

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THE COURT:

Yes.

Did Legal Aid purport nevertheless to have

16

an attorney-client relationship with these eight in what they

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presented to Judge Furman or Judge Swain?

18

In other words, it seems to me there is a difference

19

here between going in and saying, on behalf of Tom, Joe and

20

Mary, we are bringing a class action for the following 500

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people.

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more than entitled to.

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class, or seeking additional or corollary relief.

24

other hand, Legal Aid goes in, or a lawyer goes in in my

25

hypothetical and says, We have been authorized by not just Tom,

If those 500 want their own separate lawsuit, they are
They, in effect, are opting out of the

SOUTHERN DISTRICT REPORTERS, P.C.
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If, on the

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Joe and Mary, but by the following 70 people to be their

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lawyer, then it seems to me the representation was that they

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will be bound by the relief in that action.

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which of these two scenarios this is.

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6

MS. GILLMAN:

Can I have just a moment to consult with

my co-counsel?

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THE COURT:

8

MS. GILLMAN:

9

So I am not sure

Yes.
So, your Honor, when we went in last

week, the class was for all children in New York State who are

10

being held in the Office of Refugee Resettlement.

Subsequent

11

to that action being brought, the eight children that we are

12

here in court before your Honor about were referred to The

13

Legal Aid Society and are clients of The Legal Aid Society.

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THE COURT:

15

The action filed before Judge Swain and Judge Furman

16

That only partly answers my question.

was a class action pursuant to Rule 23 or some similar rule?

17

MS. GILLMAN:

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THE COURT:

Yes, your Honor.

Then I come back now to defense counsel.

19

If they were not the named plaintiffs, these eight, and they

20

were just members of the class, that doesn't in any way

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preclude this lawsuit.

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24
25

MR. BYARS:

I believe that these eight individuals

were on a list of 70 children that were provided to us.
THE COURT:

But that's like saying, if I brought a

securities class action and I said, Judge, John Jones is a
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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shareholder and here is a list of -- we don't have to guess, we

2

know who the other 69 shareholders are.

3

will seek certification of the class, and so we are bringing

4

this as a class action.

5

certified, and maybe even then, those other 69 in my

6

hypothetical are free to bring whatever action they want.

7

are not in any way, shape or form precluded by the fact that

8

John Jones said he is representing the class.

9

Here they are, and we

Until and unless that class is

They

So I would have to see the transcript, but they

10

brought the other action as a class action.

Nothing precludes

11

these other members of the class from seeking different or

12

alternative relief.

13

MR. BYARS:

Your Honor, just looking at page 2 of

14

Judge Furman's order, in a footnote it refers to Judge Swain's

15

granting emergency relief to prohibit the government from

16

removing putative class members represented by Legal Aid from

17

New York State without providing 48 hours' notice.

18

that the eight individuals at issue in this case are on the

19

list of 70 that was provided by Legal Aid and would be part of

20

the putative class.

21

Legal Aid or members of the putative class, but subject to the

22

relief granted by Judge Swain, and extended by Judge Furman,

23

and extended by Judge Furman with the specific direction that

24

this temporary relief would give Judge Sabraw an opportunity to

25

consider requests for broader emergency relief.

I think

I think they are either represented by

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I think that

20
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1
2

is what is happening here.
THE COURT:

I don't see anything in a footnote that

3

detracts from the right of any individual member to seek the

4

relief that is being sought here.

5

prohibition on the government from removing putative class

6

members represented by Legal Aid from New York State without

7

providing 48 hours' notice.

8

them from New York State.

9

State and have the parents brought here.

Judge Swain ordered a

They are not seeking to remove

They want them to stay in New York
So there is no

10

contradiction there.

11

is "putative."

12

someone who has been brought in as a class member, but is not

13

an individual class representative, from saying, I don't want

14

to be part of that class, I want to opt out, I want my own

15

relief, which is, in effect, at best, at most, what is being

16

asked for here.

17

conflict, that's a different question.

18
19
20

Moreover, I think the key adjective there

Nothing that I know in the law precludes

Now, whether it presents Legal Aid with a

So I don't understand what in this footnote you think
creates a problem for what they are asking for here.
MR. BYARS:

I think what was directed in the footnote

21

was temporary emergency relief that applied to the eight

22

individuals who are seeking broader relief here.

23

purpose of the transfer was to allow that to happen in such a

24

fashion so that the district judge that is actively managing

25

the reunification process could consider all of the issues that
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And the

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are in this case as well as in the Ms. L case.

2

I note that, for example, one of the things that Judge

3

Sabraw has done is to institute a seven-day stay of removal

4

following reunification.

5

judge can do there in order to try to provide for protections

6

for the reunification process.

7

involved in doing this.

8

minutes he is going to be having another hearing in the Ms. L

9

case, and presumably will also be considering the NTC case as

That's the kind of thing that the

Judge Sabraw is actively

In fact, in about two hours and 32

10

well.

So there is a very real risk here of this action

11

delaying the directions of Judge Sabraw in the Southern

12

District of California case.

13

the government to reunify children with their parents by

14

Thursday evening is very --

15

THE COURT:

The order that he has directed

In a case where there is a potential

16

conflict between two federal judges, my normal practice would

17

be to, on consent of the parties, call the other judge and find

18

out whether there really is a conflict or not in the other

19

judge's mind.

20

Judge Sabraw right now?

21

So does anyone have any objection to my calling

MR. BYARS:

Your Honor, the government has no

22

objection, and we note further that Judge Furman actually did

23

the exact same thing last week.

24

figure out -- I don't know what they talked about, but he did

25

call him about the NTC case.

He called Judge Sabraw to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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2

THE COURT:

I am glad that the younger judges know in

advance to follow the path set by the older judges.

3

Any objection from Legal Aid?

4

MS. GILLMAN:

We have no objection to the Court

5

calling the judge in the Ms. L litigation, but we think it's

6

appropriate, given the claims that are being brought before

7

your Honor which involve the Flores settlement, for your Honor

8

to call Judge Gee, who is the judge in the Flores case.

9
10

THE COURT:

In which case?

MS. GILLMAN:

In the Flores case.

It's the Flores

11

settlement.

Your Honor, of course we have no objection to you

12

calling the Ms. L judge, but it would also be, I think,

13

appropriate and necessary, given the claims before this Court,

14

that you call Judge Gee.

15

is a hearing scheduled before Judge Gee on Friday.

16

THE COURT:

17

MS. GILLMAN:

We understand that in that case there

A hearing on what?
A hearing on these issues involving what

18

is going on with the children who are subject to the Flores

19

settlement, in terms of the reunification of the parents in the

20

Ms. L litigation.

21

THE COURT:

To move this along, let me go see if I

22

could reach Judge Sabraw.

23

conversation that I should also call Judge Gee, does the

24

government have any objection?

25

MR. BYARS:

If I decide as a result of that

Your Honor, I think the two are distinct.

SOUTHERN DISTRICT REPORTERS, P.C.
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I think that Judge Gee, first of all, her proceeding on Friday

2

is necessarily after the deadline that's of real importance and

3

urgency here, which is the Thursday deadline.

4

how Judge Gee's views on the Flores settlement case would

5

inform the issues before the Court.

6

THE COURT:

That all may be true.

I am not sure

That's why I may or

7

may not feel the need to call Judge Gee.

But my question is,

8

just to move this along, because we are under various time

9

pressures, if after talking with Judge Sabraw I feel it would

10

be useful for the Court to call Judge Gee, do you have any

11

objection?

12

MR. BYARS:

No, your Honor.

13

THE COURT:

So we will take a short break and I will

14

try to reach one or both of those judges.

15

(Recess)

16

THE COURT:

So I had a very useful conversation with

17

Judge Sabraw, and before I rule I want to go back to the

18

government.

19
20

Tell me exactly what was the notice that you sent on
Saturday evening.

21

MR. BYARS:

I can check my phone.

23

THE COURT:

Sure.

24

MR. BYARS:

Your Honor, there is a cover e-mail to Mr.

22

25

I can tell you

exactly.

Copeland from an HHS attorney, and the cover e-mail says,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

24
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1

"Please find attached the list that ORR received from DHS of

2

children in the NTC class that are cleared for reunification

3

with their parent.

4

is located and where the reunification will take place.

5

realize it is late on Saturday night.

6

provide this information to you as soon as possible in order to

7

comply with the 48-hour notice.

8

are arranging for transportation for the children.

9

instructed to provide the following information.

10

information merely reflects the intent of ICE --"

The spreadsheet indicates where the parent
I

However, we wanted to

The federal field specialists
HHS is also

The

11

THE COURT:

Speak a little louder.

12

MR. BYARS:

"The information merely reflects the

13

intent of ICE at the current time, and based on currently

14

available information.

15

will be made at the time the minor and parent are detained in

16

ICE custody.

17

provides such information merely to inform The Legal Aid

18

Society pursuant to the injunction in the NTC v. ICE, case

19

number 18-6428, SDNY, filed July 16, 2018."

20

All custody and removal determinations

ICE is not bound by this initial information and

Then there is a spreadsheet.

It has, I think it's 70

21

names.

There's various information at the top.

22

identifying number, family name, given name, gender.

23

there is a facility name, reunification site; a column for

24

final order yes or no, final order executable, final order

25

date, matching child first name, matching child last name, and
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

There is an
Then

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then an identifying number.

Then a column that says "want

2

child?"

3

conviction or charge or no charge, suspected of gang

4

affiliation, most serious conviction, most serious pending

5

charge, and various comments, and a custody decision.

6

has all that information in the spreadsheet.

A column for criminality, whether there has been a

So it

7

THE COURT:

8

What is it that you think, if anything, the government

9
10
11

Let me go back to plaintiff's counsel.

was required to provide in that notice that they didn't
provide?
MS. GILLMAN:

So, your Honor, the information that

12

they provided in that e-mail that was just read by Mr. Byars is

13

wholly insufficient.

14

e-mail I think frames the problem with the notice that was

15

required, in that it says "this information merely reflects the

16

intent of ICE at the current time."

17

that the person actually gets real notice and the opportunity

18

to respond to that notice.

In particular, the end part of that

The meaning of notice is

19

The other problem in that notification that Mr. Byars

20

just read is that it failed to indicate whether these children

21

were going to be facing long-term detention with their parents

22

in facilities that were noncompliant with the Flores settlement

23

and whether or not they were facing deportation upon

24

reunification.

25

If you would excuse me one moment, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Sorry.

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THE COURT:

So the reason I asked this in part is that

2

Judge Sabraw brought to my attention that he has put in place

3

all sorts of provisions to address the very issues you just

4

raised, that he was cognizant even before the action brought

5

before Judge Swain and Judge Furman that the interests of the

6

children are not necessarily coincident with the parents'

7

interests at all times, but that at the same time

8

reunification, at least in the short-term, was something he

9

wanted to bring about promptly.

So he, as I understand it, has

10

arranged at each of the facilities where reunification is

11

taking place, pursuant to his order, that there will be present

12

people who will analyze and then report back to him on those

13

kinds of issues so that he can make an informed judgment.

14

He also told me something that I must say was quite

15

surprising to me, which was that Legal Aid had not made any

16

efforts to appear before him since Judge Furman transferred the

17

case other than filing a pro hac vice motion.

18

thought, given the exigencies that plaintiff's counsel has

19

raised, that since it's the same counsel in the class action,

20

that those matters would have been sought to be brought before

21

him on a highly expedited basis, as it was in this court.

22

Did you want to say anything about that?

23

MS. GILLMAN:

One would have

Your Honor, I think while we, of course,

24

appreciate the fact that Judge Sabraw has indicated that he has

25

put in place what he believes are -- I don't know how you want
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

27
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to refer to them -- requirements, that still doesn't address

2

the issues that are before this Court.

3

and why we specifically asked for your Honor to call Judge

4

Gee -- is that our individual clients that are appearing before

5

your Honor cannot have their interests properly represented in

6

the actions that are being taken by the Ms. L litigation,

7

because, again, the issue here is that --

8
9

THE COURT:

The issue is that --

To the extent that they have interests

that are not being represented, now that the class action is

10

before Judge Sabraw, why haven't you taken emergency action to

11

bring those interests to his attention?

12

MS. GILLMAN:

Well, your Honor, to begin with, we,

13

again, got this e-mail notification from the government very

14

late on Saturday night.

15

THE COURT:

16

order came down before that.

17
18

I understand that.

MS. GILLMAN:

But Judge Furman's

Your Honor, can I have one moment.

I'm

sorry.

19

THE COURT:

Yes, of course.

20

MS. GILLMAN:

So, your Honor, again, not to repeat

21

myself, but if you will just excuse me I will do it one more

22

time.

23

night.

24
25

We got this e-mail notification very late on Saturday

THE COURT:

I must say that I made a point of bringing

that to Judge Sabraw's attention, because it seemed to me that
SOUTHERN DISTRICT REPORTERS, P.C.
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28
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that was arguably quite heavy-handed on the government's part,

2

but I am sure they would say they were trying to expedite

3

things as quickly as possible.

4

its face, smacks a little bit of gamesmanship, but then so does

5

this action smack of gamesmanship.

6

MS. GILLMAN:

Nevertheless, it, at least on

I will not repeat myself again.

We will

7

start from the late e-mail notification.

After receiving the

8

late e-mail notification, my colleagues at The Legal Aid

9

Society made efforts to reach out to government counsel to

10

clarify the ambiguity that is inherent in the notice that Mr.

11

Byars --

12
13

THE COURT:

Excuse me.

Forgive me.

So who called

whom?

14

MS. GILLMAN:

15

sent us the e-mail, and we --

16

THE COURT:

17

MS. GILLMAN:

18
19

Who is the individual who sent the e-mail?
My colleague, Mr. Copeland, is going to

do this.
MR. COPELAND:

20

communications.

21

Services.

22

We reached out to the individual who

These were mostly e-mail

It was with the Department of Health and Human

I think it's a Ms. Lisette Mestre reached out to me.

THE COURT:

I'm sorry.

The person who sent you the

23

e-mail, which we will hereinafter refer to as "the Saturday

24

night e-mail," was whom?

25

MR. COPELAND:

So --

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

29
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THE COURT:

2

answered by a name?

3
4

Is that not a question that can be

MR. COPELAND:

I think I said it.

Lisette

Mestre.

5

THE COURT:

6

MR. COPELAND:

7

THE COURT:

8

Yes.

Spell it for the record.
L-I-S-E-T-T-E, last name M E S T R E.

Does that person give in the e-mail her

position?

9

MR. COPELAND:

Yes, your Honor.

She is an attorney

10

with the Office of General Counsel, Children, Families and

11

Aging, U.S. Department of Health and Human Services.

12

THE COURT:

OK.

Who was it from your end who then

13

e-mailed her with requests for more information, if that's what

14

happened?

15

MR. COPELAND:

That was me.

16

THE COURT:

17

What did you ask her?

18

MR. COPELAND:

19

sure I speak properly.

20

Saturday, not just the Saturday night e-mail.

21

earlier e-mail that was asking for us to waive the protections

22

of the TRO as to two siblings that wanted to be reunited in

23

advance.

24

indicated that she was the lead counsel for Health and Human

25

Services on this case.

So we have got the real party interest.

I asked her what -- I just want to make
She had e-mailed me earlier on
She sent me an

So that's how our communication started.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

She

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1

So she sent me that.

We looked into that case,

2

determined that this was somebody that did indeed want to be

3

reunited on a more expedited basis, didn't have any of the

4

issues that we are facing with the eight children that we are

5

here in court for today.

6

So to respond to your question, I believe it was the

7

next morning, there was more communications between myself and

8

attorney Mestre.

9

the expiration of the 48 hours, even going from the time of the

Then at some point we learned that prior to

10

Saturday night e-mail, what would be 48 hours there, that one

11

of our clients had actually been moved, and I think that that

12

happened on early Monday.

13

So our understanding was that that was not complying

14

with the order.

15

that, as well as indicating that we had these additional

16

clients that form, I think, the majority of the named

17

plaintiffs in this action, who we indicated we wanted to know

18

the status of whether or not they would be moved because we

19

were aware of the fact that they had expressed wishes to not be

20

reunited in detention or some other sort of issue in terms of

21

their reunification.

22

So we reached out to attorney Mestre about

THE COURT:

Just so I am clear, you wanted to know,

23

number one, whether any of them were about to be imminently

24

moved, and if so, whether it's for purposes of detention or

25

deportation.

Do I have that right?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. COPELAND:

2

THE COURT:

3

MR. COPELAND:

That is correct, your Honor.

What was the response?
There was further communication with

4

Ms. Mestre that didn't address that request yesterday, in terms

5

of we had also provided other individuals that were part of the

6

TRO that also wanted to waive.

7

Then we received an e-mail yesterday evening, I

8

believe it was from the Department of Justice's -- one of the

9

lead attorneys in the Ms. L litigation, I believe his name is

10

August -- I am going to mispronounce his last name -- Lente, or

11

something of that nature, which essentially said that the

12

notice provided on Saturday night was compliant notwithstanding

13

the fact that we had raised the issue that given --

14

THE COURT:

So they had given you what they thought

15

was required, and they weren't giving you anything else, is

16

that the gist of it?

17

MR. COPELAND:

18

THE COURT:

19

I am not quite sure why you weren't giving more

20
21

Basically, yes.

Let me go back to the government.

information.
MR. BYARS:

Your Honor, I think HHS and Main Justice

22

were providing what they could to Legal Aid, and they believed

23

that they had satisfied the requirement.

24
25

THE COURT:

Well, there is a question of whether they

have satisfied the requirements and there is a question of
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

32
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whether they are operating in the spirit of Judge Furman's

2

orders, Judge Swain's orders, and to the extent relevant, Judge

3

Sabraw's orders.

4

couldn't have been given to answer some of those inquiries.

5
6

I don't understand why more of an attempt

Do you have any objection to providing more
information?

7

MR. BYARS:

Your Honor, I do not know what information

8

can be provided.

I understand that this is a huge logistical

9

undertaking by numerous people to make this happen under the

10

timeline that's ordered by the Southern District of California.

11

So I am not able to say -- I do know that at the hearing, a

12

week ago Monday, the judge was impressed with Commander

13

Jonathan White's presentation about how logistically

14

complicated this was and, in fact, was satisfied, based on our

15

presentation, that even a 12-hour advance notice would be an

16

impediment to providing the quickest possible reunification of

17

child to parent.

18

So I really am unable to give you the kind of

19

blow-by-blow breakdown of this process in a way that Commander

20

White would be able to do.

21

Judge Sabraw is trying to do in San Diego.

22

THE COURT:

And I think that that's really what

Do you know anything about this one

23

instance that was referred to of someone who was moved on

24

Monday?

25

MR. BYARS:

I do not, your Honor.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

All right.

So this is obviously a matter

2

of great importance.

3

the parents and to the children, whose interests may not always

4

coincide and therefore need to be separately expressed.

5

matter of great public interest.

6

impacts the proper effectuation of the orders now of several

7

different courts:

8

settlement, Judge Sabraw's various orders requiring

9

reunification, Judge Swain and Judge Furman's temporary

10

It's important, first and foremost, to

It's a

It is a matter that also

Judge Gee's approval of the Flores

restraining orders, and now the matter before this Court.

11

I think the common sense of it is that these matters

12

should, to the maximum extent possible, be consolidated before

13

as few judges as possible.

14

Sabraw, he felt that what was being requested here, arguably,

15

conflicted with his orders, but he stressed that that was not

16

his determination to make, it was the determination to be made

17

by this Court.

18

not placing before a single judge, or at most two judges, the

19

coordination of what is unquestionably a substantial

20

undertaking of great importance.

21

for even inadvertent conflict, is high in these kinds of

22

situations.

23

entire case to the Southern District of California to Judge

24

Sabraw.

25

In my discussion before with Judge

But there is a certain lack of common sense in

The potential for conflict,

Therefore, I am going to forthwith transfer this

I asked him how early he could hear from counsel in
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

34
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1

this case.

He said he was holding a status conference today,

2

at 3 p.m. California time, which is 6 p.m. New York time,

3

therefore, about an hour and 20 minutes from now, and he would

4

be pleased to hear from counsel for the plaintiffs here about

5

the issues they have raised.

6

as I mentioned earlier, all sorts of provisions that he

7

believes are addressed to making sure that the interests of the

8

children are separately represented, but counsel in this case

9

is in a very good position to bring to his attention why they

For example, he has set in place,

10

don't think that may be true in the case of these nine children

11

or whatever.

12

So he invited the appearance of counsel in this case

13

at his hearing today.

14

knew they were in New York.

15

expressly, but I think it's implicit.

16

problems with that, you can come back to me and I will talk to

17

Judge Sabraw because that clearly was my understanding.

18

I assume he means by telephone since he
I forgot to ask him that
And if there are any

I will issue a written order within the next few

19

minutes transferring this case, but I think the most important

20

thing is for counsel for the plaintiffs to call Judge Sabraw's

21

chambers and arrange to be heard at 6:00 New York time, 3:00

22

his time, on your various requests.

23

initially answered by his secretary who probably is less

24

familiar with this, so I would suggest you talk initially to

25

the law clerk who is handling this matter, who was also on the

In calling, his phone is

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

35
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phone during my conversation with Judge Sabraw so knows the

2

full representations that were made.

3

for any reason, which I would think extremely unlikely, any

4

problem in facilitating that telephonic conversation, come back

5

to me and I will call Judge Sabraw and clear that up.

And as I say, if there is

6

Is there anything else we need to take up today?

7

MR. BYARS:

Your Honor, I would just would ask that

8

you consider noting in your order, there is a local civil rule

9

83.1 that imposes a seven day --

10

THE COURT:

I am going to slavishly copy the wording

11

of Judge Furman, which addressed all that, and I am grateful to

12

Judge Furman for giving me a model to follow.

13

Anything else?

14

MR. BYARS:

15

I think just making sure that our case is

docketed and we get a docket number.

16

THE COURT:

Yes.

17

Very good.

Thanks very much.

18

(Adjourned)

Of course.

19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]