State of Washington et al v. United States of America et al
Filing
37
DECLARATION Jonathan White re #36 Joint Status Report by Plaintiff State of Washington (Clinton, Laura)
Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 1 of 17
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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4 STATE OF WASHINGTON; et al.,
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Plaintiffs,
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V.
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8 THE UNITED STATES OF
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AMERICA; et al.,
Defendants.
) 2:18-cv-00939-MJP
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) District Judge Marsha Pechman
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DECLARATION OF JONATHAN WHITE
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I, Jonathan White, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746,
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that my testimony below is true and correct:
1.
I am a Commander with the United States Public Health Service
Commissioned Corps, and have served at the Department of Health and Human Services
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21 (HHS) in three successive presidential administrations. I am presently assigned to the
22 Office of the Assistant Secretary for Preparedness and Response (ASPR), and previously
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served as the Deputy Director of the Office of Refugee Resettlement (ORR).
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2.
The following statements are based on my personal knowledge, information
26 acquired by me in the course of performing my official duties, information supplied to me
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by federal government employees and contractors, and government records.
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 2 of 17
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3.
I have been involved directly in the actions which HHS has taken to
2 implement Executive Order (EO) 13841 ("Affording Congress an Opportunity to Address
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Family Separation") and comply with the orders in Ms. L, et al. v. US. Immigration and
5 Customs Enforcement, et al., Case No. 18-cv-428 (S.D.Cal.). My understanding is that
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President Trump issued EO 13841 on June 20, 2018, and the U.S. District Court for the
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Southern District of California issued its orders in Ms. L. on or before July 26, 2018.
4.
My understanding is that the Court in State of Washington, et al. v. United
States of America, et al., Case No. 2:18-cv-00939-MJP (W.D.Wash.) ordered the parties
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to submit a letter on the States' request for expedited discovery. I have been asked to
13 address how the support of discovery on topics 2, 5(e)-(g), 6, 1 l(d), and 12 from the
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States' "[PROPOSED] ORDER GRANTING STATES' MOTION FOR EXPEDITED
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DISCOVERY AND REGULAR STATUS CONFERENCES" would likely impact HHS
17 and the effort to reunify children with class members in Ms. L. To understand the likely
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impact, some background on the reunification effort may be helpful.
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HHS RESOURCES DEPLOYED FOR REUNIFICATION
5.
The ORR personnel serving the unaccompanied alien children (UAC)
program have worked diligently on reunifications of parents and children who were
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24 separated by the federal government subsequent to apprehension. Some have worked up
25 to 12 to 18 hours per day, 7 days per week on the reunification effort.
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6.
On June 22, 2018, the Secretary of Health and Human Services directed
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28 ASPR to deploy "surge" personnel and resources to help ORR with the reunification
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 3 of 17
1 effort. This activation of ASPR augmented the resources that ORR had already devoted to
2 expeditiously discharge children from ORR care. ORR has had to continue performing
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core program functions for minors who cross the border without parents (and who have
5 far outnumbered separated children in ORR care).
The augmenting of resources has
6 enabled ORR continue performing those essential core functions.
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The activation of ASPR included the Secretary's Operations Center (SOC),
7.
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9 which is a command center that operates 24 hours per day, 365 days per year.
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The
mission of the SOC is to synthesize critical public health and medical information for the
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U.S. Government. While typically used for a public health emergency or natural disaster
13 ( e.g., Hurricane Maria in Puerto Rico), the SOC can also serve as a communications hub
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for large, data-intensive, inter-departmental operations.
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8.
ASPR activated an Incident Management Team (IMT). As of today's date,
17 the IMT has 53 members (in addition to the permanent staff of the SOC). IMT members
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have worked 12 to 16 hours per day, 7 days per week, in order to provide necessary
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logistical and administrative support for the reunification effort.
9.
Over the past several weeks, ASPR has dispatched as many as 115 personnel
to the field to facilitate compliance with the Ms. L court orders to reunify separated
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24 children and their parents. Those personnel have been drawn from ACF, ASPR, the U.S.
25 Public Health Service Commissioned Corps, and the National Disaster Medical System's
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Disaster Medical Assistance Teams (DMAT). A DMAT is a cadre of trained health and
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 4 of 17
1 medical professionals and para-professionals that augments ASPR's capabilities during
2 public emergencies.
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10.
Finally, HHS executed a contract with BCFS Health and Human Services,
5 Inc. (BCFS), to provide an additional 100 reunification case managers, plus approximately
6 40 staff who are working 12-hour shifts to provide further logistical and administrative
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support for the reunification effort.
CURRENT STATUS OF REUNIFICATION EFFORTS IN MS. L.
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HHS reports the status of reunification efforts to the Ms. L. court. A copy of
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HHS' most recent status report in Ms. L. is attached as Exhibit 1.
12.
Going forward in Ms. L, I presently anticipate that HHS will focus its
resources on resolving any remaining disputes about whether particular adults are class
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members eligible for reunification, and on reunifying any remaining class members not in
17 ICE custody with their children.
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LIKELY IMPACT OF SUPPORTING EXPEDITED DISCOVERY
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13.
My understanding is that discovery support in Washington v. United States
21 would include compiling and analyzing information-and · collecting and producing
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documents-about the reunification effort, as discussed in greater detail below.
My
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24 opinion is that HHS probably does not have additional, available "surge" personnel or
25 ORR personnel with the capabilities necessary to either support the reunification effort, or
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provide discovery support in Washington v. United States.
Any work time that any
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28 current "surge" personnel or ORR personnel must divert to discovery support in
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 5 of 17
1 Washington v. United States will result in a commensurate reduction in the time that those·
2 same personnel can devote to the reunification effort.
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The States ' Topic 2
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My understanding is that Topic 2 is: "The number of Separated Children
placed by ORR in each Plaintiff State from January 1, 2018 to the present, by month and
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facility (or, for individual sponsor placements, the county in which the child resides with
9 such a sponsor)."
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15.
HHS has information about all children for the time period during which they
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are in ORR care. But it does not maintain that information in a monthly, state-by-state,
13 facility-by-facility compilation. Nor does HHS have the systems capability to create such
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a data compilation through automated means. HHS would have to manually create a
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customized data compilation for the States.
16.
I estimate that it would likely require 1800 to 2000 hours of personnel time to
create a data compilation for Topic 2.
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17.
This estimate is based partly on the time that HHS previously spent on its
21 manual review of ORR case management records in Ms. L. The manual review in Ms. L.
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looked only at the ORR case management records for the approximately 12,000 minors
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24 who were in ORR care at the time of the review.
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18.
Here, the main purpose of the manual review would be to identify all
separated children in each Plaintiff state from January 1, 2018 to the present. Such a
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 6 of 17
1 review would be necessary because the date range and specific data points (e.g., locations
2 of discharges) for Topic 2 exceed the scope of the manual review in Ms. L.
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The States ' Topics 5(e)-(g), 6(a)-(e), and 11 (d)
19.
My understanding is that Topics 5(e)-(g) are: "As to every Separated Parent
who is present in any Plaintiff State (or who was present in a Plaintiff State on the day this
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lawsuit was filed): . . . (e) The contact that Defendants have provided between the
9 Separated Parent and his or her child(ren); (t) The location of that Separated Parent's
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children (if in an ORR placement or custody); and (g) DHS' plan to reunify the Separated
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Parent with the child."
20.
My understanding is that Topics 6(a)-(e) are: "As to every Separated Child
who is present in any Plaintiff State (or who was present in a Plaintiff State on the day this
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lawsuit was filed): (a) The current placement and location of every such child (e.g., living
17 with a sponsor in Seattle, Washington); (b) The contact that Defendants have provided
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between the child and their Separated Parent(s) or other family members; (c) The location
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of that Separated Child's Separated Parent(s); (d) DHS' plan to reunify the Separated
21 Child with the Separated Parent(s); and (e) Information concerning the circumstances and
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progress of such reunification efforts."
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21.
My understanding is that Topic ll(d) is: "For all Separated Parents who
25 entered the United States along the Southwestern border from January 1, 2018,
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information regarding: (d) All reunification efforts the Defendants have made concerning
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 7 of 17
1 Separated Parents who were removed from the United States without their Separated
2 Children."
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22.
As noted above, HHS has information about all children for the time period
5 during which they are in ORR care. HHS also receives information about the parents of
6 such children from DHS.
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23.
HHS, however, does not have the systems capability to generate a log of the
9 contacts between each child and parent (or family member)-or the current placement and
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location of each child-through automated means.
HHS would have to compile and
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organize that information manually, as part of the broader review of ORR case
13 management records discussed above. Likewise, HHS does not maintain individualized
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reunification plans or reunification status updates for specific parents and children in a
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narrative format. It would have to prepare such narratives for the States.
24.
I estimate that HHS would likely require at least an additional 450 hours to
compile and organize information and prepare individualized narratives for Topics 5(e)-
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20 (g), 6(a)-(e), and ll(d). Moreover, much of the information for those topics is dynamic,
21 and changes frequently as the reunification process moves forward. Any supplementation
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would require additional manual work.
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The States' Topics 12(a)-(c)
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25.
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My understanding is that Topics 12(a)-(c) are: "For all Separated Parents
who have been released from DHS custody since January 1, 2018, all information
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28 regarding DHS and HHS efforts to reunite Separated Parents and Separated Children~
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 8 of 17
1 including but not limited to:
(a) Information regarding the paperwork required of
2 Separated Parents who want to reunite with their Separated Children, including any
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requirement that Separated Parent complete Family Reunification Applications, including
5 background checks, DNA testing, or fingerprinting, before reunification with their
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Separated Children; (b) Information regarding any financial requests or demands made of
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Separated Parents who want to reunite with their Separated Children, including demands
9 that Separated Parents pay the airfare for Separated Children and escorts as a condition of
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reunification; and (c) Information regarding any other conditions or requirements the
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Defendants are placing on Separated Parents who want to reunite with their Separated
13 Children."
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26.
As noted above, HHS has information about all children for the time period
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during which they are in ORR care. HHS also receives information about the parents of
17 such children from DHS.
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27.
HHS, however, does not have the systems capability to generate a log of the
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individualized documentation completed by specific parents or children----or any
21 individualized requests, demands, conditions, or requirements allegedly related to
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reunification-through automat~d means.
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28.
HHS would have to research, compile, and organize such individualized
25 information manually, as part of the broader review of ORR case management records
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discussed above. In some instances, HHS might have to obtain the information from
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Case 2:18-cv-00939-MJP Document 37 Filed 07/26/18 Page 9 of 17
1 DHS. The presentation of the individualized information might also involve the collection
2 and production of documents or the drafting of narratives.
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29.
I estimate that HHS would likely require at least an additional 300 hours to
5 research, compile, and organize such information (and possibly collect and produce
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documents and prepare individualized narratives) for Topics 12(a)-(c). Moreover, some
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of the information for those topics might change as the reunification process moves
9 forward. Any supplementation could require additional manual work.
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Overall Likely Impact of Supporting Expedited Discovery
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30.
If HHS must provide the level of discovery support described above within
13 the next 30 days, then HHS will have to divert current "surge" personnel or ORR
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personnel from work on reunifications to work on discovery support. A diversion of that
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magnitude would have an adverse material impact on the ability of HHS to reunify parents
17 and children promptly in Ms. L.
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31.
The estimates and opinions that I have provided in this declaration are based
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on the information known to me at this time (including information about the States'
21 discovery topics), and my best professional judgment. I reserve the right to amend my
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estimates and opinions if the information known to me changes.
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Executed on July 26, 2018.
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CHAD A. READLER
Acting Assistant Attorney
General
SCOTT G. STEWART
Deputy Assistant Attorney
General
WILLIAM C. PEACHEY
Director
Office of Immigration Litigation
U.S. Department of Justice
WILLIAM C. SILVIS
Assistant Director
Office of Immigration Litigation
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
U.S. Department of Justice
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962
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ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
California Bar No. 94918
Office of the U.S. Attorney
880 Front Street, Room 6293
San Diego, CA 92101-8893
619-546-7125
619-546-7751 (fax)
Attorneys
for
Federal
Respondents-Defendants
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF
SAN DIEGO & IMPERIAL
COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
Attorneys for PetitionersPlaintiffs
*Admitted Pro Hac Vice
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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Case No. 18cv428 DMS MDD
MS. L, et al.,
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Petitioners-Plaintiffs,
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JOINT STATUS REPORT
vs.
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U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, et
al.,
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Respondents-Defendants.
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The Court ordered the parties to file a joint status report on July 23, 2018, in
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13 anticipation of the status conference scheduled for July 24, 2018 at 3:00pm PST.
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The parties submit this joint status report in accordance with the Court’s instruction.
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16 I.
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DEFENDANTS’ POSITIONS
A. Update on Reunification Process
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The reunification plan outlined to the Court in Defendants’ filing on July
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15, 2018, ECF No. 109, and discussed at the July 16, 2018 status conference, is
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proceeding. Defendants report the following with regard to the reunification of
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families with children ages 5-17: 1
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The numbers provided are based on daily reports that have not been analyzed to
25 ensure as much accuracy as the government could ensure if it had several days to
26 analyze and verify each statistic. These numbers are from the daily report as of
8:00 AM Eastern on July 23, 2018. While most numbers changed since the last
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• Total number of possible children of potential class members
identified: 2,551
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• Potential class members possibly eligible for reunification: 1634
o Class members successfully reunified in ICE custody: 879
o Class members in ICE custody interviewed and cleared for
reunification, transport pending: 538
o Potential class members in ICE custody pending interview: 0
o Potential class members in ICE custody pending child file review:
0
o Potential class members released to the interior by ICE: 217
• Potential class members, or non-members of the class, either not
eligible, or not yet known to be eligible, for reunification: 917
o Adults known to be in U.S. Marshal, State or local custody: 0
o At interview, parent waived reunification: 130
o Adults with prohibitive criminal record or deemed ineligible by
ORR or ICE: 64
o Case notes indicate adult is not in U.S., under review: 463
o Further evaluation: 260 (many of these children have been
discharged by ORR in appropriate circumstances)
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• Class members with a final order of removal: 900
• Total number of reunifications or other appropriate discharges by
ORR: 1,187
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24 status report due to significant progress in reunifications, some minor changes are
25 attributable to continual review of the case files. In the interest of providing
information that is as up-to-date as possible, although not without the possibility
26 needing further correction, the numbers provided in Section A reflect the best
27 estimates the government has as of 8:00 AM Eastern on July 23, 2018.
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B. Class Member Lists and Other Information For Plaintiffs
Defendants continue to provide Plaintiffs’ counsel the daily “cleared” list
when that list is updated. On July 20, 2018, Defendants provided Plaintiffs with a
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5 list of class members who stated that they did not wish to be reunified with their
6 children at the final interview with HHS. Defendants will provide an update to that
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list on July 24, 2018. On July 20, 2018, Defendants provided Plaintiffs with a
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9 spreadsheet containing updated information regarding 1601 class members. That
10 spreadsheet reflects whether those class members have a final order of removal,
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and whether they have been removed or released, or if they remained in ICE
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13 custody, then their current detention location. For those class members who have
14 final orders of removal, Defendants are reviewing files to provide Plaintiffs’
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counsel with a list of those class members who have waived reunification prior to
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17 removal.
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In addition, Defendants had previously stated that on or before July 20,
2018, Defendants would provide Plaintiffs with a list of class members who have
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21 been removed, including the date of removal, country of removal, and last
22 detention location, and that on or before July 23, 2018, Defendants would provide
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Plaintiffs with a list of class members who have been released from ICE custody.
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25 However, Defendants were not able to provide these lists because some of this
26 information is still under review. Defendants believe that some of the requested
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information is contained in the spreadsheets that were previously provided to
2 Plaintiffs, and in an updated spreadsheet being provided to Plaintiffs today, July
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23, 2018. However, Defendants are continuing to review their case notes and
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5 intend to provide updated data on these two categories of class members as soon as
6 possible.
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II.
PLAINTIFFS’ POSITIONS
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Plaintiffs have received no new information about Class Members from
10 Defendants since the hearing on Friday, July 20. In particular, Defendants have not
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provided the following information:
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1.
A list of Class Members who have been removed from the country.
14 See Joint Status Report, Dkt. 124, at 3 (July 20, 2018) (stating that Defendants
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would provide this information by July 20).
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2.
Updated lists of Class Members who have been “greenlighted” for
18 reunification. The last two such lists were sent by Defendants on July 16 and July
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20. See Joint Status Report, Dkt. 124, at 2 (stating that Defendants were providing
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21 this list “on a daily basis when it is updated”).
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3.
A complete list of the parents with final removal orders who signed a
form electing to be removed without their children. These parents urgently need
25 consultations with lawyers, so that they do not mistakenly strand their children in
26 the United States, and Plaintiffs’ partners are ready to provide these consultations
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immediately. Plaintiffs have been requesting this information each day since
2 Wednesday, July 18. According to the government’s representations, there may be
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several dozen parents on this list, and they may not be identified in any list
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5 Defendants have provided thus far. Plaintiffs respectfully ask the Court to order
6 Defendants to provide this information by 5:00pm PT on July 24.
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1 DATED: July 23, 2018
Respectfully submitted,
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/s/ Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
abalakrishnan@aclu.org
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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: (619) 398-4485
F: (619) 232-0036
bvakili@aclusandiego.org
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Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
skang@aclu.org
samdur@aclu.org
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
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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
(202) 532-4824
(202) 616-8962 (facsimile)
sarah.b.fabian@usdoj.gov
ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
Attorneys for Respondents-Defendants
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18cv428 DMS MDD
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