State of Washington et al v. United States of America et al
Filing
38
DECLARATION David W. Jennings of David Jennings re #36 Joint Status Report by Plaintiff State of Washington (Clinton, Laura)
Case 2:18-cv-00939-MJP Document 38 Filed 07/26/18 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
STATE OF WASHINGTON, et al.,
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Plaintiffs,
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v.
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THE UNITED STATES OF AMERICA; )
DONALD TRUMP, in his official capacity)
as President of the United States of
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America, et al.,
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Defendants.
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____________________________________)
Case No.: 2:18-cv-00939-MJP
DECLARATION OF DAVID W. JENNINGS
I, David W. Jennings, for my declaration pursuant to 28 U.S.C. § 1746, hereby state and
depose as follows, based on my personal knowledge and information provided to me in the
course of my official duties:
1. I am currently serving as the Acting Assistant Director (AD), Field Operations,
Enforcement and Removal Operations (ERO), U.S. Immigration and Customs
Enforcement (ICE), Department of Homeland Security (DHS), a position I have held
since April 2018. In this capacity, I oversee, direct, and coordinate field operations in 24
ERO field offices.
2. Previously, I was the Acting Deputy Assistant Director (DAD), Western Operations for
ERO, a position I held from October 2017 to March 2018.
3. In June 2016, I was named Field Office Director for the San Francisco Field Office. I
served as the Field Office Director for the Los Angeles Field Office from June 2014 until
June 2016 and as the Houston Field Office Director from May 2012 to June 2014.
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4. In my current role as Acting AD, I have been involved directly in ICE’s efforts to
implement Executive Order (EO) 13841 (“Affording Congress an Opportunity to Address
Family Separation”) and comply with the orders in Ms. L v. I.C.E., ---F. Supp. 3d---,
2018 WL 3129486 (S.D. Cal. June 26, 2018) (“Ms. L order” or “order”).
5. In order to effectuate the reunification of class members and their minor children,
pursuant to the requirements of the preliminary injunction, ICE is working closely with
U.S. Customs and Border Protection (CBP) and the U.S. Department of Health and
Human Services (HHS), Office of Refugee Resettlement (ORR).
6. The first step toward reunifying separated families was the difficult and time-consuming
task of identifying potential class members. As reported in my July 9, 2018, declaration
to this court, the data necessary to determine class membership is not maintained as part
of ICE’s regular business practice. Rather, ICE had to create a new data set using
information collected from CBP and HHS. To create an initial data set for consideration,
ICE had to reconcile CBP data against HHS data manually and new methodologies then
had to be developed by ICE to identify separated parents. That data set was then sent to
the relevant ERO field offices so immigration officers could review available information
for each case in order to determine whether the particular alien qualified as a class
member.
7. 19 of ERO’s 24 field offices have been impacted by this order. Field Office Directors
(FODs) around the country have reassigned officers from other duties, such as fugitive
operations and case management, in order to comply with the court’s order to review
cases of each potential class member, which includes reviewing available DHS databases,
the alien file, as well as the National Crime Information Center database. As class
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members are identified, FODs have also had to reassign officers to track those class
members’ respective cases, arrange transfers from detention facilities across the United
States, summarize and share information with HHS so that HHS may conduct parentage
and fitness determinations, and facilitate communication between separated alien parents
and their respective children. The data changes constantly as the reunification process
moves forward.
8. Employees within ERO’s Custody Management Division have also committed significant
resources to ensuring compliance with the order. They have deployed two deportation
officers and six other ERO staff to three detention facilities where most of the separated
parents are detained to provide surge support related to identification of family units,
identification of the location of separated parents and their respective children,
responding to detainee inquiries, and facilitating telephone calls between parents and
their children. ERO has also deployed three dedicated policy/data analysts to HHS’s
Special Operations Center (Center). The Center was established to address the
operational challenges of coordinating family reunification among the different
departments.
9. ICE is currently carrying out a process to reunify detained class member parents of
children five years of age or over. This process requires several labor intensive steps,
such as, but not limited to, providing guidance to ERO’s field offices, gathering and
summarizing data from other agencies within and outside DHS, conducting case-by-case
reviews of all potential class members, transferring class members to reunification
locations, facilitating communication between class members and their children,
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communicating with HHS about each case, and providing details to HHS about criminal
history and locations of class members.
10. Upon HHS’s completion of vetting and a determination of suitability for reunification in
accordance with law and the injunction, in many cases, reunification will generally occur
at one of a handful of detention facilities ICE has designated for staging reunifications or
an ERO Field Office concurrent with the parent’s release. Prior to reunification, ICE
reviews the individual files and records to facilitate reunification and to make
determinations regarding whether to detain the family unit or release from custody and, if
release, any needed release conditions.
11. Given all of the resources being expended by ICE to accomplish reunification and the
time sensitive nature of the Court order, any expedited request for discovery of the same
or similar information will only serve to interfere with this process. For example, any
request seeking the A-files of affected individuals, or information therein, will likely
require an individual officer or other ICE staff member to spend time finding that
information and summarizing it for release rather than facilitating communication
between parents and children or providing other case information to HHS, which could
hold up the transfer and reunification process. Likewise, any additional requests for data
will slow down the identification of affected class members who must be transferred
soon. Further, because of their experience and knowledge of the processes and systems,
the same staff handling implementation of the Ms. L order would also be required to
respond to expedited discovery, which would also hamper reunification efforts.
12. I have reviewed the discovery requests in this case and much of the information is not
electronically searchable. As a result, gathering the information would require manual
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review of individual files, which would require coordination among many ERO field
offices to locate files and compile information. Because A-files are shipped separate
from the alien, finding the correct A-file in a timely manner often proves challenging
when an alien is being moved to a new detention facility or released. Released aliens
often move to another area of operations, further complicating efforts to locate an
individual A-file. To the extent that a manual search is required to find documents
responsive to an expedited discovery request, individual officers would be required to
search thousands of A-files to find potentially responsive documents. Once found, the
documents would then have to be scanned, labeled, collected, reviewed and redacted
prior to production.
13. To assist with compliance with the Ms. L. order, ICE has developed a spreadsheet listing
the names and A-numbers of Ms. L. class members, along with information about their
children ages 5 and older. This spreadsheet contains: Name, A number, Country of
Citizenship, and Date of Birth of the child; Name, A number, Country of citizenship,
Final Order (Yes or No); Final Order Date; Currently Detained; Final Book Out Date;
Detention Facility; State; Country of removal, and Latest Depart Date of the parent,.
14. ICE could potentially provide this spreadsheet to Plaintiffs’ counsel. Such an extensive
disclosure provides more than adequate information to Plaintiffs regarding an
individual’s detention status and location.
15. Plaintiffs’ Request for Production 2 requests historical information on Separated Children
and Separated Parents. Given that these aliens are—in many cases—the same as those
being tracked for the Ms. L. litigation, it is possible that historical detention locations
could be compiled by ICE’s statistical tracking unit. However, that information was not
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compiled for the Ms. L litigation and would require a new search and data compilation.
Compiling this data would require weeks to prepare. Moreover, information concerning
conditions of release, current location (if not in ICE detention), and individual plans to
reunify are not tracked in a searchable database and—to the extent that such information
is available to ICE—would require a manual search of individual A-files or information
systems.
16. Requests for Production 3 and 4 seek documents related to the policy decisions related to
the treatment of Separated Children. ICE is unlikely to have documents responsive to
requests 3(a) through 3(c); this information is more likely to be with HHS. To the extent
that ICE has documents related to requests 3(d) and 4, collecting them would require a
manual search of records by potential custodians both at headquarters and in the 24 ERO
field offices. If limited to the HQ ERO and Field Office Directors, a search for
responsive documents would require approximately 200 hours. The individuals who
would be required to conduct the search would be the same individuals leading the effort
to reunify families.
17. Request for Production 5 seeks, among other items, the number of Separated Parents who
signed the Separated Parent’s Removal Form and the number removed after signing such
form. This information is not uniformly entered into any readily-searchable database and
would require both a manual search of the hard copies of the A-files and a manual review
of individual entries in ICE information systems.
18. Request for Production 6 seeks documents concerning hearings on parental fitness. To
the extent ICE has this information for any individual alien, which is very unlikely, this
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information would not be contained in an electronic database and would also require a
manual search of the A-files.
19. Request for Production 7 seeks documents concerning allegations of parents being unfit,
judicial hearing data, and prosecutions and convictions for child trafficking or other felony
criminal charges. To the extent ICE has this information, this information would not be
contained in a readily-searchable database and would also require a manual search of the
A-files or information systems that store information on individual aliens.
20. ICE is unlikely to have information regarding Request for Production 8 as this appears to
concern U.S. Customs and Border Protection.
21. Requests for Production 9-11 request information on various policies for which ICE
may or may not have responsive records. This would require a manual search of
individual employees’ records by potential custodians both at headquarters and in the 24
ERO field offices. If limited to the HQ ERO and Field Office Directors, a search for
responsive documents would require approximately an additional 200 hours. The
individuals who would be required to conduct the search are the same individuals
necessary to lead the effort to reunify families.
22. Request for Production 12 seeks medical studies not within ICE’s ordinary practice or
operations.
23. Because the ICE officers tasked to respond to any expedited request are also the same or
a very similar set of officers ensuring compliance with the court order in Ms. L., any
expedited discovery ordered by this court at this point will substantially interfere with
ICE’s ability to reunify parents with their minor children in a timely manner.
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I declare under penalty of perjury that the foregoing is true and correct. Executed on
July 26, 2018.
_______________________________________
David W. Jennings
Acting Assistant Director
Enforcement and Removal Operations
U.S. Immigration and Customs Enforcement
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