Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION

259 Pages·2017·6.41 MB·English

by  Lee Gelernt

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Lee Gelernt* Bardis Vakili (SBN 247783)
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Judy Rabinovitz* ACLU FOUNDATION OF SAN
2 Anand Balakrishnan* DIEGO & IMPERIAL COUNTIES
AMERICAN CIVIL LIBERTIES P.O. Box 87131
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UNION FOUNDATION San Diego, CA 92138-7131
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IMMIGRANTS’ RIGHTS PROJECT T: [phone]
125 Broad St., 18th Floor F: [phone]
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New York, NY 10004 [email protected]
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T: [phone]
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[email protected]
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[email protected]
[email protected]
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Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice
Additional counsel on next page
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UNITED STATES DISTRICT COURT
13 SOUTHERN DISTRICT OF CALIFORNIA
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15 Ms. L. et al., Case No. 18-cv-00428-DMS-
MDD
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Petitioners-Plaintiffs,
17 v. Date Filed: June 25, 2018
18 PLAINTIFFS’
U.S. Immigration and Customs Enforcement
SUPPLEMENTAL
19 (“ICE”); et al.,
MEMORANDUM IN
20 SUPPORT OF CLASSWIDE
Respondents-Defendants.
PRELIMINARY INJUNCTION
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NO HEARING DATE
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Spencer E. Amdur (SBN 320069)
2 Stephen B. Kang (SBN 292280)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
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IMMIGRANTS’ RIGHTS PROJECT
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39 Drumm Street
San Francisco, CA 94111
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T: [phone]
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F: [phone]
[email protected]
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[email protected]
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1 TABLE OF CONTENTS
INTRODUCTION .................................................................................................. 1
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3 I. Recent Events: The Government Has Now Separated More Than Two
Thousand Children from Their Parents. ........................................................ 2
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II. There is No System To Reunify Separated Families Expeditiously, and
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the Government’s Existing “Reunification” Process Is Not Designed to
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Address the Current Crisis. ........................................................................... 4
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III. The Flores Settlement Agreement Does Not Prohibit the Reunification of
8 Separated Children with Their Detained Parents. .......................................... 7
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IV. Any Injunction Should Ensure That Parents in DHS Custody Can
Remain Detained with Their Children, Even if the Parents Are Facing
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Criminal Prosecution. ................................................................................... 8
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V. An Injunction to Prevent Future Sep arations Remains Necessary, and the
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Court Should Order the Government to Follow Well-Established Child
13 Welfare Standards. ........................................................................................ 9
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VI. Parents Facing Imminent Deportation Require Safeguards to Ensure
that They Are Not Removed Without Their Children. ................................. 11
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16 VII. Plaintiffs’ Order Provides the Appropriate Framework for Expeditious
Reunification. ............................................................................................. 11
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CONCLUSION .................................................................................................... 14
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1 TABLE OF AUTHORITIES
2 Cases
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Armstrong v. Schwarzenegger,
4 2007 WL 2694243 (N.D. Cal. Sept. 11, 2007) ................................................... 12
Hernandez v. Sessions,
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872 F.3d 976 (9th Cir. 2017) ............................................................................. 12
6 Saravia v. Sessions,
280 F. Supp. 3d 1168 (N.D. Cal. 2017) .............................................................. 12
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1 INTRODUCTION
2 On March 9, when Plaintiffs first sought classwide relief, the government
3 had already taken hundreds of children from their parents. When this case was

4 argued before the Court on May 4, the number of separated children had grown to
5 more than 700. The government has since confirmed that between May 5 and June
6 9 alone, over 2,300 children were separated from their parents. More than 2,000 of
7 those children remain separated. This follows the government’s “zero tolerance”
8 policy announced on May 7, three days after this Court held arguments.
9 On June 20, President Trump signed an Executive Order that purports to end
10 further separations. It does not. The Order contains explicit loopholes, including
11 an exception for separations that the government deems in the “interests” of the
12 child. Because the government interprets that best-interest standard in a way that
13 would allow separations that are inconsistent with this Court’s prior due process
14 opinion—and with universally accepted child welfare norms—a preliminary
15 injunction remains critical to prevent future unlawful separations.
16 Even more pressing, the Order does not address the reunification of already-

17 separated families at all, and the government has no meaningful plan for swiftly
18 ensuring that such reunifications occur. Thus, thousands of families remain
19 separated, and many parents have no idea where their children are or how to find
20 them. With each added day of separation, the terrible trauma inflicted by the
21 government on both parents and children continues to mount. Many of the children
22 are babies and toddlers who every night are crying themselves to sleep wondering if
23 they will ever see their parents again. Indeed, one separated child was only 4
24 months old and another was still breastfeeding. See, e.g., Declaration of Laura
25 Tuell (“Tuell Decl.”), Ex. 32, 17b (noting child who was taken from her mother
26 while breastfeeding); id., ¶ 17a (mother told that daughter would be waiting for her
¶
27 after court appearance; daughter was gone when mother came back); Declaration of
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1 Manoj Govindaiah (“Govindaiah Decl.”), Ex. 36, ¶ 6(b) (father separated from
2 four-month-old baby, then deported without baby).
3 Without immediate action from this Court, these families will remain
4 separated. The Office of Refugee Resettlement’s (“ORR”) normal release process
5 for ch ildren in its care will not swiftly reunify most separated families, because that
6 process is not designed to reunify children with detained parents. Having spent
7 months cruelly separating families and defending its right to do so—including for
8 weeks after this Court declared that practice “brutal, offensive” and contrary to
9 “traditional notions of fair play and decency”—the government cannot be left on its
10 own to end the suffering it has intentionally caused. This Court’s intervention is
11 necessary to ensure that these due process violations are swiftly corrected.

12 As set forth more fully in the proposed Order submitted with this brief,
13 Plaintiffs respectfully request that the Court require Defendants to:
14 1) reunify all children with their parents within 30 days, and within 10 days for
15 children under 5 years old, except where the government has clear evidence
16 that the parent is unfit or a danger to the child, or the parent is in a criminal
17 facility that does not house minors;
18 2) provide parents, within 7 days, telephonic contact with their children;
19 3) stop separating children from their parents except where there is clear
20 evidence that the parent is unfit or a danger to the child, or the parent is in a
21 criminal facility that does not house minors;
22 4) not remove separated parents from the United States without their children,
23 unless the parent affirmatively, knowingly, and voluntarily waives the right
24 to reunification before removal.
25 I. Recent Events: The Government Has Now Separated More Than Two
Thousand Children from Their Parents.
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Defendants have been separating thousands of families throughout the last
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year. Even before the government formally announced its zero tolerance policy, it
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1 had separated hundreds of children from their family members. See Decl. of

2 Stephen B. Kang (“Kang Decl.”), Ex. 38, ¶ 3.

3 On May 7, 2018, Attorney General Sessions announced an initiative to refer

4 “100 percent” of immigrants who cross the Southwest border for criminal

5 immi gration prosecutions, also known as the “zero-tolerance policy.” Kang Decl.,

6 Ex. 38, ¶ 4. Attorney General Sessions stated that as part of that prosecution, the

7 parent’s child “will be separated from you as required by law.” Id.

8 In early May, the pace of family separations increased. At a Senate Judiciary

9 Committee hearing in May, a deputy chief of U.S. Customs and Border Protection

10 (“CBP”) testified that between May 6 and May 19 alone, a total of 658 children

11 were separated from their family members. Kang Decl., Ex. 38, ¶ 5. In June 2018,

12 the Department of Homeland Security (“DHS”) reported that in the six weeks
13 between April 19 and May 31, the administration took around 2,000 children away
14 from their parents. Id., ¶ 6. And on June 19, CBP officials confirmed that “[o]ver
15 2,300 children were separated from their parents at the U.S.-Mexico border
16 between May 5 and June 9.” Id., ¶ 8; see also id., ¶ 7 (documenting cases of
17 separated children living in cages and being cared for by other children).
18 On June 20, President Trump issued an Executive Order (“EO”), Section 3 of
19 which provides that DHS “shall, to the extent permitted by law and subject to the
20 availability of appropriations, maintain custody of alien families during the
21 pendency of any criminal improper entry or immigration proceedings involving
22 their members.” Kang Decl., Ex. 38, ¶ 9, Sec. 3(a).
23 The EO contains exceptions that will allow the continued unlawful family
24 separation of families. Kang Decl., Ex. 38, ¶ 9, Sec. 3(b). And significantly, the
25 EO makes no mention of how the government intends to reunify already-separated
26 children with their parents, even though thousands of parents and children remain
27 apart. The government has since claimed in a public statement that it has begun to
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1 put in place efforts to reunite. As set forth below, however, those measures are
2 wholly inadequate. Kang Decl., Ex. 38, ¶ 10.1
0F
3 II. There is No System To Reunify Separated Families Expeditiously, and
the Government’s Existing “Reunification” Process Is Not Designed to
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Address the Current Crisis.
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At the June 22 telephonic hearing, the government’s counsel could not clarify

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whether Defendants intend to quickly reunify already-separated parents. As to
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parents who had been separated from their children as a result of the government’s

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decision to prosecute them for illegal entry, government counsel admitted that she
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“can’t speak to the . . . further effect of the executive order on that detention”:

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[The Court asked before:] when a parent is released from criminal custody
11 and taken into ICE custody, is the practice to reunite them in family
detention? And at that time I said no, that was not the practice. I think my

12 answer on that narrow question would be the same.
Kang Decl., Ex. 38, ¶ 22 (“June 22 Hearing Transcript”), at 29:25-30:12.
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In response to the Court’s questions about whether any system exists that
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would allow separated parents to reunite with their children, government counsel
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relied entirely on ORR’s preexisting processes for releasing immigrant children
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from its custody, which do not address parents who remain in DHS custody:
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18 MS. FABIAN: There are procedures by which O.R.R. then releases minors to
the custody of a parent who has been released from custody, and those are
19 the procedures . . . . Whether there is . . . additional procedures that can be
put in place to improve those procedures or expedite [them], I think that is
20 something that is the subject of ongoing discussion. But at the moment the
process is the same . . . .
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June 22 Hearing Transcript at 30:18-31:1 (emphasis added).
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The core problem is that ORR’s preexisting process for releasing children
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from custody is not adequate to meet the current need for swift reunification. For
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starters, as the government’s counsel explained at the June 22 hearing, ORR’s
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process only addresses release to non-detained parents. June 22 Hearing Transcript
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at 33:2-22. But DHS continues to detain hundreds, if not thousands, of the parents
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1 The Order could of course be rescinded at any time.
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1 whose children have been taken away. ORR’s existing process will not facilitate

2 their reunification at all. Declaration of Robert Carey (former head of ORR)

3 (“Carey Decl.”), Ex. 33, ¶¶ 7-9.

4 More broadly, ORR’s sponsorship and reunification processes were designed

5 for th e entirely different situation of a child who comes to the border alone, where

6 ORR must look for a sponsor (family member or otherwise), and investigate that

7 sponsor. See Carey Decl., Ex. 33, ¶¶ 2-7 (describing purpose and function of

8 preexisting reunification processes). Here, in contrast, the child was forcibly taken

9 from his or her own parent. In this situation, ORR must simply give the child back

10 (absent clear evidence the parent is unfit or a danger). But that is not happening.

11 ORR’s preexisting process is simply not set up to quickly reunite an unlawfully

12 separated child. See Kang Decl., Ex. 38, ¶ 23 (describing a separated parent’s
13 attempt to reunite with her child using ORR’s existing process).
14 For example, ORR has no systems designed to flag a child as having been
15 separated from a parent at or near the time of the family’s arrest; track the identity
16 and detention location of the separated child’s parent after the separation; ensure
17 regular contact between a separated detained child and her detained parent; or
18 reunify the child and parent in an ICE family detention facility. See Carey Decl.,
19 Ex. 33 ¶¶ 8-9; Supplemental Declaration of Michelle Brané (“Supp. Brané Decl.”),
20 Ex. 31, ¶¶ 4-5, 8-11; Supplemental Declaration of Jennifer Podkul (“Supp. Podkul
21 Decl.”), Ex. 30, ¶¶ 3-5, 12; Tuell Decl., Ex. 32, ¶¶ 7-17 (numerous parents
22 separated from kids and given no information about their kids’ locations).
23 Now that the government is aware that its actions are under scrutiny, it is
24 likely to point to hastily-created and ad hoc procedures to show that it is addressing
25 the current crisis. But its June 23 DHS Fact Sheet only describes a process by
26 which “adults who are subject to removal are reunited with their children for the
27 purposes of removal.” Kang Decl., Ex. 38, ¶ 10 (“DHS Fact Sheet”); see id.
28 (describing “removal coordination”). It does not show the existence of any process
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1 to swiftly reunify all detained parents with their children. See also Supp. Brané

2 Decl., Ex. 31, ¶ 12 (explaining why the processes described in the Fact Sheet will

3 not reunify detained parents); Supp. Podkul Decl., Ex. 30, ¶ 14 (same).

4 Moreover, the evidence demonstrates that these recent steps are woefully

5 inade quate even to allow communication between parents and children, much less

6 to reunite them. For instance, ORR has created a 1-800 hotline number that

7 supposedly allows parents to find the children that have been taken from them. But

8 ORR’s hotline regularly puts people on hold for 30 minute periods, and it is

9 infeasible for detained parents to stay on the line that long. See Supp. Brané Decl.,

10 Ex. 31, ¶¶ 5-6; Supp. Podkul Decl., Ex. 30, ¶¶ 6-8. Moreover, ORR’s hotline is

11 now generating a constant busy signal. Id. Similarly, DHS has created a hotline for

12 ORR caseworkers or attorneys trying to find parents. But that hotline merely
13 permits a caller to request contact with a detained parent, and field offices can
14 decline to respond to such requests. Supp. Podkul Decl., Ex. 30, ¶¶ 10-11; see also
15 Govindaiah Decl., Ex. 36, ¶ 6(c) (describing detained separated parents who could
16 not access ORR/DHS communications systems to contact children).
17 Thus, if the government is left to follow its existing practices – which put the
18 onus on parents to request reunification with their children, and without any reliable
19 system in place for them to do so -- the overwhelming majority of children will not
20 be reunited any time in the near future. That will mean that more and more children
21 will suffer irreparable harm. As Plaintiffs’ preliminary injunction briefs explained,
22 the forcible separation of children can permanently traumatize children, and the
23 effects can last through the child’s lifetime. Over the past month, the scientific and
24 professional condemnation of the administration’s practice has only grown, with
25 thousands of experts joining to describe the lasting harm that every day of
26 separation inflicts on children. Major medical associations—including the
27 American Medical Association, the American College of Physicians, the American
28 Academy of Pediatrics, the American Psychological Association, the American
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