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

259 Pages·2017·5.68 MB·English
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Preview Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION ...

Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1407 Page 1 of 259 Lee Gelernt* Bardis Vakili (SBN 247783) 1 Judy Rabinovitz* ACLU FOUNDATION OF SAN 2 Anand Balakrishnan* DIEGO & IMPERIAL COUNTIES AMERICAN CIVIL LIBERTIES P.O. Box 87131 3 UNION FOUNDATION San Diego, CA 92138-7131 4 IMMIGRANTS’ RIGHTS PROJECT T: (619) 398-4485 125 Broad St., 18th Floor F: (619) 232-0036 5 New York, NY 10004 [email protected] 6 T: (212) 549-2660 F: (212) 549-2654 7 [email protected] 8 [email protected] [email protected] 9 10 Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice Additional counsel on next page 11 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 Ms. L. et al., Case No. 18-cv-00428-DMS- MDD 16 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 21 22 NO HEARING DATE 23 24 25 26 27 28 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1408 Page 2 of 259 1 Spencer E. Amdur (SBN 320069) 2 Stephen B. Kang (SBN 292280) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 3 IMMIGRANTS’ RIGHTS PROJECT 4 39 Drumm Street San Francisco, CA 94111 5 T: (415) 343-1198 6 F: (415) 395-0950 [email protected] 7 [email protected] 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1409 Page 3 of 259 1 TABLE OF CONTENTS INTRODUCTION .................................................................................................. 1 2 3 I. Recent Events: The Government Has Now Separated More Than Two Thousand Children from Their Parents. ........................................................ 2 4 II. There is No System To Reunify Separated Families Expeditiously, and 5 the Government’s Existing “Reunification” Process Is Not Designed to 6 Address the Current Crisis. ........................................................................... 4 7 III. The Flores Settlement Agreement Does Not Prohibit the Reunification of 8 Separated Children with Their Detained Parents. .......................................... 7 9 IV. Any Injunction Should Ensure That Parents in DHS Custody Can Remain Detained with Their Children, Even if the Parents Are Facing 10 Criminal Prosecution. ................................................................................... 8 11 V. An Injunction to Prevent Future Sep arations Remains Necessary, and the 12 Court Should Order the Government to Follow Well-Established Child 13 Welfare Standards. ........................................................................................ 9 14 VI. Parents Facing Imminent Deportation Require Safeguards to Ensure that They Are Not Removed Without Their Children. ................................. 11 15 16 VII. Plaintiffs’ Order Provides the Appropriate Framework for Expeditious Reunification. ............................................................................................. 11 17 CONCLUSION .................................................................................................... 14 18 19 20 21 22 23 24 25 26 27 28 ii Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1410 Page 4 of 259 1 TABLE OF AUTHORITIES 2 Cases 3 Armstrong v. Schwarzenegger, 4 2007 WL 2694243 (N.D. Cal. Sept. 11, 2007) ................................................... 12 Hernandez v. Sessions, 5 872 F.3d 976 (9th Cir. 2017) ............................................................................. 12 6 Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017) .............................................................. 12 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1411 Page 5 of 259 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 28 1 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1412 Page 6 of 259 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. 26 Defendants have been separating thousands of families throughout the last 27 year. Even before the government formally announced its zero tolerance policy, it 28 2 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1413 Page 7 of 259 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 28 3 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1414 Page 8 of 259 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 4 Address the Current Crisis. 5 At the June 22 telephonic hearing, the government’s counsel could not clarify 6 whether Defendants intend to quickly reunify already-separated parents. As to 7 parents who had been separated from their children as a result of the government’s 8 decision to prosecute them for illegal entry, government counsel admitted that she 9 “can’t speak to the . . . further effect of the executive order on that detention”: 10 [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. 13 In response to the Court’s questions about whether any system exists that 14 would allow separated parents to reunite with their children, government counsel 15 relied entirely on ORR’s preexisting processes for releasing immigrant children 16 from its custody, which do not address parents who remain in DHS custody: 17 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 . . . . 21 June 22 Hearing Transcript at 30:18-31:1 (emphasis added). 22 The core problem is that ORR’s preexisting process for releasing children 23 from custody is not adequate to meet the current need for swift reunification. For 24 starters, as the government’s counsel explained at the June 22 hearing, ORR’s 25 process only addresses release to non-detained parents. June 22 Hearing Transcript 26 at 33:2-22. But DHS continues to detain hundreds, if not thousands, of the parents 27 28 1 The Order could of course be rescinded at any time. 4 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1415 Page 9 of 259 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 5 18cv0428 Case 3:18-cv-00428-DMS-MDD Document 78 Filed 06/25/18 PageID.1416 Page 10 of 259 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 6 18cv0428

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Anand Balakrishnan*. AMERICAN CIVIL 125 Broad St., 18th Floor. New York, NY 10004 Catherine Benoist. Marilyn Benoit M.D. Psychiatrist.
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