UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:18-cv-05741-DMG-PLA

Lucas R. et al v. Alex Azar et al Assigned to: Judge Dolly M. Gee Referred to: Magistrate Judge Paul L. Abrams Related Case: 2:85-cv-04544-DMG-AGR Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 06/29/2018 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Lucas R. by his next friend Madelyn R.

represented by Carlos Holguin Center for Human Rights and Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 213-388-8693 Fax: 213-386-9484 Email: crholguin@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carter C White UC Davis Civil Rights Clinic One Shields Avenue Building TB-30 Davis, CA 95616 530-752-5440 Fax: 530-752-5788 Email: ccwhite@ucdavis.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Crystal Adams National Center for Youth Law 1313 L Street NW Suite 130 Washington, DC 20005 202-868-4785 Email: cadams@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Holly S Cooper

UC Davis School of Law Immigration Law Clinic One Shields Avenue TB 30 Davis, CA 95616 530-754-4833 Fax: 530-752-0822 Email: hscooper@ucdavis.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan UC Davis School of Law Immigration Law Clinic One Shields Avenue TB-30 Davis, CA 95616 775-813-7423 Email: jpmulligan@ucdavis.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley Cooley LLP 4401 Eastgate Mall San Diego, CA 92121 858-550-6000 Fax: 858-550-6420 Email: mkkelley@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94618 510-835-8098 Fax: 510-835-8099 Email: pjuneja@youthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn Cooley Godward Kronish 4401 Eastgate Mall San Diego, CA 92121 858-550-6000 Fax: 858-550-6420

Email: swynn@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh Cooley LLP 1333 Second Street Suite 400 Santa Monica, CA 90401-4100 310-883-6436 Fax: 310-883-6500 Email: amayhugh@cooley.com ATTORNEY TO BE NOTICED
Brenda L Shum National Center for Youth Law 1313 L Street NW Suite 130 Washington, DC 20005 202-868-4784 Email: bshum@youthlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
Daisy Ocampo Felt University of California Davis School of Law One Shields Avenue TB 30 Davis, CA 95616 530-754-4833 Email: dofelt@ucdavis.edu ATTORNEY TO BE NOTICED
Freya E K Pitts National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94612 510-899-6572 Fax: 510-835-8099 Email: fpitts@youthlaw.org ATTORNEY TO BE NOTICED
Jayme B Staten Cooley LLP 4401 Eastgate Mall San Diego, CA 92121 858-550-6000 Fax: 858-550-6420

Email: jstaten@cooley.com ATTORNEY TO BE NOTICED
Jon F Cieslak Bona Law PC 4275 Executive Square Suite 200 La Jolla, CA 92037 858-964-4589 Email: jon.cieslak@bonalawpc.com TERMINATED: 03/31/2020
Megan L Donohue Cooley LLP 4401 Eastgate Mall San Diego, CA 92121 858-550-6000 Fax: 858-550-6420 Email: mdonohue@cooley.com TERMINATED: 03/06/2020
Melissa Ann Adamson National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94612 510-899-6573 Fax: 510-835-8099 Email: madamson@youthlaw.org (Inactive) ATTORNEY TO BE NOTICED
Michael J McMahon Cooley LLP 500 Boylston Street 14th Floor Boston, MA 02116 617-937-2359 Fax: 617-937-2400 Email: mmcmahon@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94612 510-920-3512 Fax: 510-835-8099

Plaintiff
Daniela Marisol T. by her next friend Katherine L.

Email: mwroe@youthlaw.org ATTORNEY TO BE NOTICED
Monica J Julian UC Davis Immigration Law Clinic One Shields Avenue TB30 Davis, CA 95616 707-291-5613 Email: mjulian@ucdavis.edu ATTORNEY TO BE NOTICED
Neha Desai National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94612 510-835-8098 Fax: 510-835-8099 Email: ndesai@youthlaw.org ATTORNEY TO BE NOTICED
Rebecca L Tarneja Cooley LLP 1333 Second Street Suite 400 Santa Monica, CA 90401 310-883-6400 Fax: 310-883-6500 Email: rtarneja@cooley.com ATTORNEY TO BE NOTICED
Leecia Welch Leecia Welch 1212 Broadway, Suite 600 Oakland, CA 94612 510-835-8098 Email: lwelch@youthlaw.org ATTORNEY TO BE NOTICED
represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carter C White (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Crystal Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh (See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts

Plaintiff
Miguel Angel S. by his next friend Gerardo S.

(See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carter C White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh (See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address)

Plaintiff
Gabriela N. by her next friend Isaac N.

ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Holguin (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carter C White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh (See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jaime D. by his next friend Alfredo Santiago

represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carter C White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh (See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch

Plaintiff
San Fernando Valley Refugee Children Center, Inc.

(See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carter C White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh (See above for address)

ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address)

Plaintiff
Unaccompanied Central American Refugee Empowerment

ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Holguin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carter C White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Crystal Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra Rex Mayhugh (See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sirena P. by her next friend Eduardo P.

Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh (See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address)

Plaintiff
Benjamin F. by his next friend Isabella F.

TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe (See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan P Mulligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rex Mayhugh

(See above for address) ATTORNEY TO BE NOTICED
Brenda L Shum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carlos Holguin (See above for address) ATTORNEY TO BE NOTICED
Daisy Ocampo Felt (See above for address) ATTORNEY TO BE NOTICED
Freya E K Pitts (See above for address) ATTORNEY TO BE NOTICED
Holly S Cooper (See above for address) ATTORNEY TO BE NOTICED
Jayme B Staten (See above for address) ATTORNEY TO BE NOTICED
Jon F Cieslak (See above for address) TERMINATED: 03/31/2020
Megan L Donohue (See above for address) TERMINATED: 03/06/2020
Melissa Ann Adamson (See above for address) ATTORNEY TO BE NOTICED
Michael J McMahon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mishan Raini Wroe

V.
Defendant
Alex Azar Secretary of U.S. Department of Health and Human Services

(See above for address) ATTORNEY TO BE NOTICED
Neha Desai (See above for address) ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) ATTORNEY TO BE NOTICED
Rebecca L Tarneja (See above for address) ATTORNEY TO BE NOTICED
Summer J Wynn (See above for address) ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Brenner Insenga U S Department of Justice Civil Division Office of Immigration Litigation P O Box 878 Washington, DC 20044 202-305-7816 Fax: 202-307-8781 Email: andrew.insenga@usdoj.gov ATTORNEY TO BE NOTICED
Anthony John Messuri US Department of Justice Office of Immigration Litigation Civil Division PO Box 878 Ben Franklin Station Washington, DC 20044 202-616-2872 Fax: 202-305-7000

Email: Anthony.Messuri@usdoj.gov ATTORNEY TO BE NOTICED
Benjamin M Moss US Department of Justice Office of Immigration Litigation Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044-0878 202-307-8675 Fax: 202-307-8698 Email: benjamin.m.moss2@usdoj.gov ATTORNEY TO BE NOTICED
Christopher Bates U.S. Department of Justice 950 Pennsylvania Avenue NW Wasihngton, DC 20530 202-514-3307 Fax: 202-514-8071 Email: christopher.a.bates@gmail.com TERMINATED: 01/12/2021
Ernesto Molina US Department of Justice Civil Div Office of Immigration Lit PO Box 878 Ben Franklin Station Washington, DC 20044 202-616-9358 Fax: 202-307-8781 Email: ernesto.h.molina@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey S Robins Department of Justice Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202-616-1246 Fax: 202-305-7000 Email: jeffrey.robins@usdoj.gov ATTORNEY TO BE NOTICED

Jonathan Kevin Ross US Department of Justice Civil Division - Office of Immigration Litigation PO Box 878 Ben Franklin Station Washington, DC 20044 202-305-7662 Email: jonathan.k.ross@usdoj.gov ATTORNEY TO BE NOTICED
Marina C Stevenson US Department of Justice Office of Immigration Litigation Appellate Section Benjamin Franklin Station P O Box 878 Washington, DC 20044 202-305-3797 Fax: 202-307-8781 Email: marina.c.stevenson@usdoj.gov TERMINATED: 05/22/2020
Michael C Heyse US Department of Justice Civil Division - OIL PO Box 878 Ben Franklin Station Washington, DC 20044 202-305-7002 Fax: 202-616-4923 Email: michael.heyse@usdoj.gov ATTORNEY TO BE NOTICED
Nancy K Canter US Department of Justice Civil Division - Office of Immigration Litigation PO Box 878 Ben Franklin Station Washington, DC 20044 202-616-9132 Fax: 202-305-4829 Email: nancy.k.canter@usdoj.gov ATTORNEY TO BE NOTICED
Russell J E Verby US Department of Justice

Civil Division - Office of Immigration Litigation PO Box 878 Ben Franklin Station Washington, DC 20044 202-616-4892 Fax: 202-205-4829 Email: russell.verby@usdoj.gov ATTORNEY TO BE NOTICED
Scott G Stewart Mississippi Attorney General's Office 550 High Street Suite 1100 Post Office Box 220 Jackson, MS 39205 601-359-3680 Fax: 601-359-2003 Email: scott.stewart@ago.ms.gov TERMINATED: 01/12/2021
Sherry Denise Soanes United States Department of Justice Office of Immigration Litigation P O Box 868 Ben Franklin Station Washington, DC 20044 202-532-4108 Fax: 202-616-8962 Email: sherry.soanes@usdoj.gov ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh US Department of Justice Civil Division - Office of Immigration Litigation P O Box 878 Ben Franklin Station Washington, DC 20044 202-305-9802 Fax: 202-305-1890 Email: Daniel.Shieh@usdoj.gov TERMINATED: 01/12/2020
Yamileth G Davila United States Department of Justice Office of Immigration Litigation District Court Section P O Box 878 Ben Franklin Station

Defendant
E. Scott Lloyd Director, Office of Refugee Resettlement of the U.S. Department of Health & Human Services

Washington, DC 20044 202-305-0137 Fax: 202-307-8801 Email: yamileth.g.davila@usdoj.gov ATTORNEY TO BE NOTICED
represented by David E Pinchas AUSA - Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-2920 Fax: 213-894-7819 Email: usacac.civil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Brenner Insenga (See above for address) ATTORNEY TO BE NOTICED
Benjamin M Moss (See above for address) ATTORNEY TO BE NOTICED
Christopher Bates (See above for address) TERMINATED: 01/12/2021
Ernesto Molina (See above for address) ATTORNEY TO BE NOTICED
Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
Marina C Stevenson (See above for address) TERMINATED: 05/22/2020
Michael C Heyse (See above for address) ATTORNEY TO BE NOTICED

Defendant
E. Scott Lloyd in his individual capacity TERMINATED: 08/21/2019

Nancy K Canter (See above for address) ATTORNEY TO BE NOTICED
Russell J E Verby (See above for address) ATTORNEY TO BE NOTICED
Scott G Stewart (See above for address) TERMINATED: 01/12/2021
Sherry Denise Soanes (See above for address) ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) TERMINATED: 01/12/2020
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED
represented by David E Pinchas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Brenner Insenga (See above for address) ATTORNEY TO BE NOTICED
Benjamin M Moss (See above for address) ATTORNEY TO BE NOTICED
Christopher Bates (See above for address) TERMINATED: 01/12/2021
Ernesto Molina (See above for address) ATTORNEY TO BE NOTICED

Jeffrey S Robins (See above for address) ATTORNEY TO BE NOTICED
Marina C Stevenson (See above for address) TERMINATED: 05/22/2020
Sherry Denise Soanes (See above for address) ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) TERMINATED: 01/12/2020
Yamileth G Davila (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/29/2018
06/29/2018 06/29/2018

# Docket Text
1 COMPLAINT Receipt No: 0973-22012306 - Fee: $400, filed by Plaintiffs San Fernando Valley Refugee Children Center, Inc., Miguel Angel S., Unaccompanied Central American Refugee Empowerment, Daniela Marisol T., Gabriela N., Lucas R., Jaime D.. (Attorney Leecia Welch added to party Jaime D.(pty:pla), Attorney Leecia Welch added to party Gabriela N.(pty:pla), Attorney Leecia Welch added to party Lucas R.(pty:pla), Attorney Leecia Welch added to party Miguel Angel S.(pty:pla), Attorney Leecia Welch added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Leecia Welch added to party Daniela Marisol T.(pty:pla), Attorney Leecia Welch added to party Unaccompanied Central American Refugee Empowerment(pty:bkmov))(Welch, Leecia) (Entered: 06/29/2018)
2 CIVIL COVER SHEET filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Movant Unaccompanied Central American Refugee Empowerment. (Welch, Leecia) (Entered: 06/29/2018)
3 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),,, 1 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee

06/29/2018 06/29/2018 06/29/2018 06/29/2018 06/29/2018 06/29/2018

Empowerment. (Attachments: # 1 Exhibit A)(Welch, Leecia) (Entered: 06/29/2018)
4 NOTICE of Interested Parties filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, (Welch, Leecia) (Entered: 06/29/2018)
5 NOTICE of Related Case(s) filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Related Case(s): 85-CV-04544-DMG-AGR, 10-CV-02211-DMG-DTB (Welch, Leecia) (Entered: 06/29/2018)
6 EX PARTE APPLICATION for Ruling for Leave to Proceed Using Pseudonyms filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration, # 2 Proposed Order) (Welch, Leecia) (Entered: 06/29/2018)
7 APPLICATION to file document Attachment A to Application to Use Pseudonyms under seal filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Movant Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Welch, Leecia) (Entered: 06/29/2018)
8 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Attachment A to Application to Use Pseudonyms under seal 7 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Movant Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document)(Welch, Leecia) (Entered: 06/29/2018)
9 CERTIFICATE OF SERVICE filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, re APPLICATION to file document Attachment A to Application to Use Pseudonyms under seal 7 , EX PARTE APPLICATION for Ruling for Leave to Proceed Using Pseudonyms 6 , Sealed Declaration in SupportDeclaration, 8 served on June 29, 2018. (Welch, Leecia) (Entered: 06/29/2018)

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10 APPLICATION of Registered Legal Services Attorney Neha Desai to practice before the Court filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order) (Welch, Leecia) (Entered: 07/02/2018)
11 NOTICE OF ASSIGNMENT to District Judge Dean D. Pregerson and Magistrate Judge Paul L. Abrams. (jtil) (Entered: 07/02/2018)
12 NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (jtil) (Entered: 07/03/2018)
13 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 16-05Related Case- filed. Related Case No: 2:85-cv-04544 DMG(AGRx). Case transferred from Judge Dean D. Pregerson to Judge Dolly M. Gee for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:18-cv-05741 DMG(PLAx). Signed by Judge Dolly M. Gee (rn) (Entered: 07/05/2018)
14 60-Day Summons Issued re Complaint 1 as to Defendants Alex Azar, Secretary of U.S. Department of Health and Human Services; E. Scott Lloyd, Director, Office of Refugee Resettlement of the U.S. Department of Health & Human Services. (gk) (Entered: 07/05/2018)
15 MINUTE IN CHAMBERS - TRANSFER OF CASE TO JUDGE GEE. Please take notice that this action has been reassigned to the HONORABLE DOLLY M. GEE, United States District Judge, pursuant to the Order re Transfer Pursuant to General Order 16-05 filed on July 5, 2018. Please substitute the initials DMG in place of the current initials, so that the case number will now read CV 18-5741DMG (PLAx). As documents are routed using the judge's initials, it is imperative that the correct initials DMG be used on all subsequent filings to prevent any delays in the processing of documents. Judge Gee's Courtroom Deputy Clerk is Kane Tien. He can be reached at (213) 894-5452. Judge Gee's courtroom is located on the 8th floor of the First Street Courthouse, Courtroom #8C. Additional information about Judge Gee's procedures and schedules is available on the court's website at www.cacd.uscourt.gov. (shb) (Entered: 07/06/2018)
16 ORDER by Judge Dolly M. Gee Granting APPLICATION for Registered Legal Services Attorney Neha Desai to Practice Before the Court and participate in the above entitled action, and designating Leecia J. Welch as Supervising Attorney 10 . (gk) (Entered: 07/06/2018)

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17 INITIAL STANDING ORDER upon filing of the complaint by Judge Dolly M. Gee. (kti) (Entered: 07/09/2018)
18 ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR LEAVE TO PROCEED USING PSEUDONYMS 6 by Judge Dolly M. Gee: Accordingly, the Court: A. GRANTS Plaintiffs leave to proceed in this matter with the use of pseudonyms for the named Plaintiffs and their Next Friends; B. ORDERS that Defendants will not publicly disclose the names or personal identifying information of the named Plaintiffs and their Next Friends after Defendants learn their names and personal identifying information; and C. ORDERS that all parties shall submit pleadings, briefing, and evidence (See order for further details) 6 (yl) (Entered: 07/09/2018)
19 ORDER GRANTING LEAVE TO FILE UNDER SEAL ATTACHMENT A TO APPLICATION TO USE PSEUDONYMS 7 by Judge Dolly M. Gee: Accordingly, IT IS HEREBY ORDERED that Plaintiffs are granted leave to file under seal Attachment A to the Application to Use Pseudonyms. Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file Attachment A under seal within three (3) days of the date of this Order. IT IS SO ORDERED. (yl) (Entered: 07/09/2018)
20 SEALED DOCUMENT Attachment A re EX PARTE APPLICATION for Ruling for Leave to Proceed Using Pseudonyms 6 , Order on Motion for Leave to File Document Under Seal, 19 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment.(Cieslak, Jon) (Entered: 07/11/2018)
21 PROOF OF SERVICE Executed by Plaintiff San Fernando Valley Refugee Children Center, Inc., Miguel Angel S., Unaccompanied Central American Refugee Empowerment, Daniela Marisol T., Gabriela N., Lucas R., Jaime D., upon Defendant Alex Azar served on 7/6/2018, answer due 9/4/2018; E. Scott Lloyd served on 7/6/2018, answer due 9/4/2018. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortego. Executed upon the Attorney Generals Office of the United States by delivering a copy to service by certified mail. Executed upon the officer agency or corporation by delivering a copy to Tracey Mullins, Chief Legal Officer. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt NOT attached. Original Summons NOT returned. (Cieslak, Jon) (Entered: 07/13/2018)

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22 NOTICE of Appearance filed by attorney Benjamin M Moss on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Benjamin M Moss added to party Alex Azar(pty:dft), Attorney Benjamin M Moss added to party E. Scott Lloyd(pty:dft))(Moss, Benjamin) (Entered: 07/27/2018)
23 NOTICE of Appearance filed by attorney Marina C Stevenson on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Marina C Stevenson added to party Alex Azar(pty:dft), Attorney Marina C Stevenson added to party E. Scott Lloyd(pty:dft))(Stevenson, Marina) (Entered: 08/01/2018)
24 NOTICE of Appearance filed by attorney Andrew Brenner Insenga on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Andrew Brenner Insenga added to party Alex Azar(pty:dft), Attorney Andrew Brenner Insenga added to party E. Scott Lloyd(pty:dft))(Insenga, Andrew) (Entered: 08/02/2018)
25 NOTICE OF MOTION AND MOTION to Certify Class filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Motion set for hearing on 8/31/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum, # 2 Notice of Lodgment, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5 (Part 1), # 8 Exhibit 5 (Part 2), # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32) (Holguin, Carlos) (Entered: 08/02/2018)
26 APPLICATION to file document (Exhibits to Motion for Class Certification) under seal filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Redacted Document Exs. 10-22, 24-27, # 2 Proposed Order)(Holguin, Carlos) (Entered: 08/02/2018)
27 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Exhibits to Motion for Class Certification) under seal 26 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment.

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(Attachments: # 1 Unredacted Document Exs. 10-22, 24-27, # 2 Certificate of Services)(Holguin, Carlos) (Entered: 08/02/2018)
28 ORDER GRANTING APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF DOCUMENTS SUBMITTED IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 26 by Judge Dolly M. Gee: Accordingly, it is hereby ORDERED: 1. Plaintiffs are granted leave to file in the public record redacted versions of Exhibits 10-22 and 24-27 in support of their motion for class certification. Plaintiffs shall refile the redacted versions of these documents within three (3) days of the date of this Order. 2. Plaintiffs are granted leave to file under seal the unredacted versions of Exhibits 10-22 and 24-27. Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file these documents under seal within three (3) days of the date of this Order. (See order for details.) (kti) (Entered: 08/03/2018)
29 NOTICE OF MOTION AND MOTION for Preliminary Injunction re unlawful detention . Motion filed by plaintiff Lucas R.. Motion set for hearing on 8/31/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum in support of motion, # 2 SEALED Exhibit in support of motion) (Holguin, Carlos) (Entered: 08/03/2018)
30 APPLICATION to file document in support of motion under seal filed by Plaintiff Lucas R..(Holguin, Carlos) (Entered: 08/07/2018)
31 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document in support of motion under seal 30 filed by Plaintiff Lucas R..(Holguin, Carlos) (Entered: 08/07/2018)
32 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document in support of motion under seal 30 filed by Plaintiff Lucas R.. (Attachments: # 1 Unredacted Document)(Holguin, Carlos) (Entered: 08/07/2018)
33 EXHIBIT 33-44 to APPLICATION to file document in support of motion under seal 30 Redacted versions of documents filed by Plaintiff Lucas R.. (Holguin, Carlos) (Entered: 08/07/2018)
34 PROPOSED ORDER GRANTING APPLICATION TO FILE DOCUMENTS UNDER SEAL re APPLICATION to file document in support of motion under seal 30 filed by Plaintiff Lucas R.. (Holguin, Carlos) (Entered: 08/07/2018)
35 SEALED DOCUMENT Exhibits to Certify Class re NOTICE OF MOTION AND MOTION to Certify Class 25 , Order on Motion for Leave to File Document Under Seal,, 28 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee

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Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 15, # 7 Exhibit 16, # 8 Exhibit 17, # 9 Exhibit 18, # 10 Exhibit 19, # 11 Exhibit 20, # 12 Exhibit 21, # 13 Exhibit 22, # 14 Exhibit 24, # 15 Exhibit 25, # 16 Exhibit 26, # 17 Exhibit 27)(Cieslak, Jon) (Entered: 08/07/2018)
36 ORDER RE APPLICATION TO FILE CERTAIN EXHIBITS IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION UNDER SEAL by Judge Dolly M. Gee: Upon Plaintiff's Unopposed Application 30 , it is hereby ORDERED that: (1) Plaintiff is granted leave to file in the public record redacted versions of Exhibits 3337, 4142, and 44 in support of his motion for preliminary injunction, which are found at Docket Entry No. 33. Plaintiff shall refile the redacted versions of these documents within three days of the date of this Order. (2) Plaintiff is granted leave to file under seal the unredacted versions of Exhibits 33-37, 4142, and 44 and the entirety of Exhibits 38 and 40, all of which are found at Docket Entry No. 32-1. Pursuant to Local Rule 79-5.2.2(c), Plaintiff shall efile these documents under seal within three days of the date of this Order. (3) Docket Entry No. 29-2 shall remain sealed. In Plaintiff's motion for preliminary injunction, he refers to Exhibit 43 [Doc. No. 29-1 at 16], which is found at Docket Entry No. 29-2. Yet, Exhibit 43 is missing from Docket Entry Nos. 321 and 33. Therefore, within three days of the date of this Order, Plaintiff shall either file an application to file Exhibit 43 under seal, or file a publicly viewable version of that document. (gk) (Entered: 08/08/2018)
37 NOTICE Filing Redacted Exhibits ISO Class Certification Motion filed by plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 15, # 7 Exhibit 16, # 8 Exhibit 17, # 9 Exhibit 18, # 10 Exhibit 19, # 11 Exhibit 20, # 12 Exhibit 21, # 13 Exhibit 22, # 14 Exhibit 24, # 15 Exhibit 25, # 16 Exhibit 26, # 17 Exhibit 27)(Cieslak, Jon) (Entered: 08/08/2018)
38 NOTICE OF LODGING filed re NOTICE OF MOTION AND MOTION to Certify Class 25 (Attachments: # 1 Proposed Order Certifying Class)(Cieslak, Jon) (Entered: 08/08/2018)
39 SEALED DOCUMENT Exhibits ISO Motion for Preliminary Injunction re APPLICATION to file document in support of

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motion under seal 30 , Order on Motion for Leave to File Document Under Seal,,,,, 36 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 33, # 2 Exhibit 34, # 3 Exhibit 35, # 4 Exhibit 36, # 5 Exhibit 37, # 6 Exhibit 38, # 7 Exhibit 40, # 8 Exhibit 41, # 9 Exhibit 42, # 10 Exhibit 44)(Cieslak, Jon) (Entered: 08/09/2018)
40 NOTICE Filing Redacted Exhibits filed by plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 33, # 2 Exhibit 34, # 3 Exhibit 35, # 4 Exhibit 36, # 5 Exhibit 37, # 6 Exhibit 41, # 7 Exhibit 42, # 8 Exhibit 43, # 9 Exhibit 44)(Cieslak, Jon) (Entered: 08/09/2018)
41 APPLICATION to file document exhibits 46 to 61 for opposition to PI under seal filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Proposed Order)(Insenga, Andrew) (Entered: 08/10/2018)
42 Joint STIPULATION for Extension of Time to File Response as to NOTICE OF MOTION AND MOTION to Certify Class 25 , Joint STIPULATION to Continue hearing on Plaintiffs' Motion for Class Certification from August 31, 2018 to September 14, 2018 Re: NOTICE OF MOTION AND MOTION to Certify Class 25 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Proposed Order proposed order on joint stipulation for extension of briefing schedule and hearing date on plaintiffs' motion for class certification)(Moss, Benjamin) (Entered: 08/10/2018)
43 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document exhibits 46 to 61 for opposition to PI under seal 41 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Unredacted Document def ex 46, # 2 Unredacted Document def ex 47, # 3 Unredacted Document def ex 48, # 4 Unredacted Document def ex 49, # 5 Unredacted Document def ex 50, # 6 Unredacted Document def ex 51, # 7 Unredacted Document def ex 52, # 8 Unredacted Document def ex 53, # 9 Unredacted Document def ex 54, # 10 Unredacted Document def ex 55, # 11 Unredacted Document def ex 56, # 12 Unredacted Document def ex 57, # 13 Unredacted Document def ex 58, # 14 Unredacted Document def ex 59, # 15 Unredacted Document def ex 60, # 16 Unredacted Document def ex 61)(Insenga, Andrew) (Entered: 08/10/2018)

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44 OPPOSITION to NOTICE OF MOTION AND MOTION for Preliminary Injunction re unlawful detention . Motion 29 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Exhibit def ex 45)(Insenga, Andrew) (Entered: 08/10/2018)
45 ORDER ON JOINT STIPULATION FOR EXTENSION OF BRIEFING SCHEDULE AND HEARING DATE ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Judge Dolly M. Gee: Upon Stipulation 42 , IT IS HEREBY ORDERED that Defendants' time to respond to Plaintiffs' motion for class certification 25 is extended to and including 8/17/2018. Plaintiffs' time to file a reply is extended to and including 8/31/2018. The hearing on this motion is reset for 9/14/2018 at 09:30 AM before Judge Dolly M. Gee. (gk) (Entered: 08/14/2018)
46 ORDER RE APPLICATION TO FILE UNDER SEAL EXHIBITS TO OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION by Judge Dolly M. Gee: The Court GRANTS Defendants' Unopposed Application to File Under Seal Exhibits 46 to 61 to the Opposition to Plaintiffs' Motion for Preliminary Injunction 41 . Defendants shall e-file under seal the unredacted documents listed in this order within three days of the date of this Order. See document for further details. (gk) (Entered: 08/14/2018)
47 SEALED DOCUMENT exhibits in support of opp to PI re Order on Motion for Leave to File Document Under Seal, 46 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit)(Insenga, Andrew) (Entered: 08/17/2018)
48 NOTICE OF MOTION AND MOTION for Preliminary Injunction re Placement with Sponsor . Motion filed by Plaintiff Gabriela N.. Motion set for hearing on 9/14/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum, # 2 Exhibit List, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 SEALED ATTACHMENT - Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 33, # 34 Proposed Order) (Welch, Leecia) ** SEALED ATTACHMENT 20 PURSUANT TO

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THE ORDER OF 8/20/2018 56 ** Modified on 8/20/2018 (gk). (Entered: 08/17/2018)
49 APPLICATION to file document exhibits in support of preliminary injunction motion under seal filed by Plaintiff Gabriela N.. (Attachments: # 1 Redacted Document Ex 2, # 2 Redacted Document Ex 3, # 3 Redacted Document Ex 4, # 4 Redacted Document Ex 5, # 5 Redacted Document Ex 7, # 6 Redacted Document Ex 8, # 7 Redacted Document Ex 9, # 8 Redacted Document Ex 10, # 9 Redacted Document Ex 11, # 10 Redacted Document Ex 12, # 11 Redacted Document Ex 13, # 12 Redacted Document Ex 14, # 13 Redacted Document Ex 15, # 14 Redacted Document Ex 16, # 15 Redacted Document Ex 17, # 16 SEALED ATTACHMENT Redacted Document Ex 18, # 17 Redacted Document Ex 19, # 18 Redacted Document Ex 20, # 19 Redacted Document Ex 21, # 20 Redacted Document Ex 22, # 21 Redacted Document Ex 23, # 22 Redacted Document Ex 24, # 23 Redacted Document Ex 25, # 24 Redacted Document Ex 26, # 25 Redacted Document Ex 27, # 26 Redacted Document Ex 29, # 27 Redacted Document Ex 30, # 28 Redacted Document Ex 31, # 29 Redacted Document Ex 33, # 30 Proposed Order)(Welch, Leecia) ** SEALED ATTACHMENT 16 PURSUANT TO THE ORDER OF 8/20/2018 56 ** Modified on 8/20/2018 (gk). (Entered: 08/17/2018)
50 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document exhibits in support of preliminary injunction motion under seal 49 filed by Plaintiff Gabriela N.. (Attachments: # 1 Unredacted Document Ex 2, # 2 Unredacted Document Ex 3, # 3 Unredacted Document Ex 4, # 4 Unredacted Document Ex 5, # 5 Unredacted Document Ex 7, # 6 Unredacted Document Ex 8, # 7 Unredacted Document Ex 9, # 8 Unredacted Document Ex 10, # 9 Unredacted Document Ex 11, # 10 Unredacted Document Ex 12, # 11 Unredacted Document Ex 13, # 12 Unredacted Document Ex 14, # 13 Unredacted Document Ex 15, # 14 Unredacted Document Ex 16, # 15 Unredacted Document Ex 17, # 16 Unredacted Document Ex 18, # 17 Unredacted Document Ex 19, # 18 Unredacted Document Ex 20, # 19 Unredacted Document Ex 21, # 20 Unredacted Document Ex 22, # 21 Unredacted Document Ex 23, # 22 Unredacted Document Ex 24, # 23 Unredacted Document Ex 25, # 24 Unredacted Document Ex 26, # 25 Unredacted Document Ex 27, # 26 Unredacted Document Ex 28, # 27 Unredacted Document Ex 29, # 28 Unredacted Document Ex 30, # 29 Unredacted Document Ex 31, # 30 Unredacted Document Ex 32, # 31 Unredacted Document Ex 33, # 32 Unredacted Document Ex 34, # 33 Certificate of Service)(Welch, Leecia) (Entered: 08/17/2018)

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51 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendants Alex Azar, E. Scott Lloyd. Motion set for hearing on 9/14/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum, # 2 Proposed Order) (Insenga, Andrew) (Entered: 08/17/2018)
52 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Certify Class 25 filed by Defendants Alex Azar, E. Scott Lloyd. (Insenga, Andrew) (Entered: 08/17/2018)
53 REPLY in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re unlawful detention . Motion 29 filed by Plaintiff Lucas R.. (Attachments: # 1 Exhibit List, # 2 Exhibit 62, # 3 Exhibit 64, # 4 Proposed Order)(Holguin, Carlos) (Entered: 08/17/2018)
54 APPLICATION to file document exhibit in support of motion for preliminary injunction under seal filed by Plaintiff Lucas R.. (Attachments: # 1 Proposed Order)(Holguin, Carlos) (Entered: 08/17/2018)
55 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document exhibit in support of motion for preliminary injunction under seal 54 filed by Plaintiff Lucas R.. (Attachments: # 1 Unredacted Document Ex 63, # 2 Certificate of Service)(Holguin, Carlos) (Entered: 08/17/2018)
56 ORDER GRANTING APPLICATION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS SUBMITTED IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION RE GABRIELA N. by Judge Dolly M. Gee: The Court GRANTS Plaintiff Gabriela N.'s unopposed application for leave to file under seal certain exhibits that support her Motion for a Preliminary Injunction 49 . IT IS HEREBY ORDERED that Plaintiffs are granted leave to file under seal the unredacted versions of Exhibits 2-5 and 7-34 in support of the Motion for Preliminary Injunction regarding Plaintiff Gabriela N. Plaintiffs shall e-file these documents under seal within three days of the date of this Order. Within three days of the date of this Order, Plaintiffs shall refile on the public document the redacted versions of Exhibits 2-5, 717, 19-31, and 33. The Court DIRECTS the Court Clerk to seal Docket Entry Nos. 48 -20 and 49 -16. Within three days of the date of this Order, Plaintiffs shall refile on the public docket a version of Docket Entry No. 49 -16 in which the patient, guardian, and "support person['s]" names and signatures on electronic page numbers 4, 5, and 7 have been redacted. (gk) Modified on 8/20/2018 (gk). (Entered: 08/20/2018)

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57 ORDER GRANTING APPLICATION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS SUBMITTED IN SUPPORT OF REPLY TO OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION RE LUCAS R. by Judge Dolly M. Gee: The Court GRANTS Plaintiff Lucas R.'s unopposed application for leave to file under seal Exhibit 63 offered in support of his Reply to the Opposition to the Motion for a Preliminary Injunction 54 . IT IS HEREBY ORDERED that the Plaintiff is granted leave to file under seal Exhibit 63 in support of the Reply to the Opposition to the Motion for Preliminary Injunction regarding Plaintiff Lucas R. Plaintiff shall e-file the unredacted document under seal within three days of the date of this Order. (gk) (Entered: 08/20/2018)
58 NOTICE of Appearance filed by attorney Megan L Donohue on behalf of Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment (Attachments: # 1 Certificate of Service)(Attorney Megan L Donohue added to party Jaime D.(pty:pla), Attorney Megan L Donohue added to party Gabriela N.(pty:pla), Attorney Megan L Donohue added to party Lucas R.(pty:pla), Attorney Megan L Donohue added to party Miguel Angel S.(pty:pla), Attorney Megan L Donohue added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Megan L Donohue added to party Daniela Marisol T.(pty:pla), Attorney Megan L Donohue added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Donohue, Megan) (Entered: 08/21/2018)
59 SEALED DOCUMENT Exhibit 63 re Reply (Motion related), 53 , Order on Motion for Leave to File Document Under Seal,, 57 filed by Plaintiff Lucas R..(Cieslak, Jon) (Entered: 08/21/2018)
60 Joint STIPULATION for Hearing re NOTICE OF MOTION AND MOTION to Certify Class 25 , NOTICE OF MOTION AND MOTION to Dismiss Case 51 filed by Plaintiff Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Jon Cieslak iso Joint Stipulation, # 2 Proposed Order)(Cieslak, Jon) (Entered: 08/22/2018)
61 MINUTE ORDER IN CHAMBERS - ORDER CONTINUING HEARING ON PLAINTIFFS' MOTION TO CERTIFY CLASS 25 , MOTION FOR PRELIMINARY INJUNCTION 29 , MOTION FOR PRELIMINARY INJUNCTION 48 , AND DEFENDANTS' MOTION TO DISMISS 51 by Judge Dolly M. Gee. Due to the Court's calendar, the hearing on all four pending motions is CONTINUED to September

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21, 2018 at 9:30 a.m. Plaintiffs' reply to Defendants' opposition to the motion for class certification shall be filed by August 31, 2018. Defendants' opposition to Gabriela N.'s preliminary injunction motion shall be filed by August 29, 2018, and Gabriela N.'s reply thereto shall be filed by September 5, 2018. Plaintiffs' opposition to Defendants' motion to dismiss shall be filed by August 29, 2018, and Defendants reply thereto shall be filed by September 5, 2018. IT IS SO ORDERED. (lom) (Entered: 08/23/2018)
62 NOTICE Pursuant to this Court's Order (ECF 56) of Filing of Redacted Exhibits iso Motion for Preliminary Injunction Re: Plaintiff Gabriela N. filed by Plaintiff Gabriela N.. (Attachments: # 1 Exhibit 2 (Redacted), # 2 Exhibit 3 (Redacted), # 3 Exhibit 4 (Redacted), # 4 Exhibit 5 (Redacted), # 5 Exhibit 7 (Redacted), # 6 Exhibit 8 (Redacted), # 7 Exhibit 9 (Redacted), # 8 Exhibit 10 (Redacted), # 9 Exhibit 11 (Redacted), # 10 Exhibit 12 (Redacted), # 11 Exhibit 13 (Redacted), # 12 Exhibit 14 (Redacted), # 13 Exhibit 15 (Redacted), # 14 Exhibit 16 (Redacted), # 15 Exhibit 17 (Redacted), # 16 Exhibit 18 (Redacted), # 17 Exhibit 19 (Redacted), # 18 Exhibit 20 (Redacted), # 19 Exhibit 21 (Redacted), # 20 Exhibit 22 (Redacted), # 21 Exhibit 23 (Redacted), # 22 Exhibit 24 (Redacted), # 23 Exhibit 25 (Redacted), # 24 Exhibit 26 (Redacted), # 25 Exhibit 27 (Redacted), # 26 Exhibit 29 (Redacted), # 27 Exhibit 30 (Redacted), # 28 Exhibit 31 (Redacted), # 29 Exhibit 33 (Redacted))(Cieslak, Jon) (Entered: 08/23/2018)
63 SEALED DOCUMENT re Sealed Declaration in SupportDeclaration,,,,, 50 , Order on Motion for Leave to File Document Under Seal,,,, 56 filed by Plaintiff Gabriela N.. (Attachments: # 1 Exhibit 2 (Unredacted), # 2 Exhibit 3 (Unredacted), # 3 Exhibit 4 (Unredacted), # 4 Exhibit 5 (Unredacted), # 5 Exhibit 7 (Unredacted), # 6 Exhibit 8 (Unredacted), # 7 Exhibit 9 (Unredacted), # 8 Exhibit 10 (Unredacted), # 9 Exhibit 11 (Unredacted), # 10 Exhibit 12 (Unredacted), # 11 Exhibit 13 (Unredacted), # 12 Exhibit 14 (Unredacted), # 13 Exhibit 15 (Unredacted), # 14 Exhibit 16 (Unredacted), # 15 Exhibit 17 (Unredacted), # 16 Exhibit 18 (Unredacted), # 17 Exhibit 19 (Unredacted), # 18 Exhibit 20 (Unredacted), # 19 Exhibit 21 (Unredacted), # 20 Exhibit 22 (Unredacted), # 21 Exhibit 23 (Unredacted), # 22 Exhibit 24 (Unredacted), # 23 Exhibit 25 (Unredacted), # 24 Exhibit 26 (Unredacted), # 25 Exhibit 27 (Unredacted), # 26 Exhibit 28 (Unredacted), # 27 Exhibit 29 (Unredacted), # 28 Exhibit 30 (Unredacted), # 29 Exhibit 31 (Unredacted), # 30 Exhibit 32 (Unredacted), # 31 Exhibit 33 (Unredacted), # 32 Exhibit 34 (Unredacted), # 33 Declaration of Service)(Cieslak, Jon) (Entered: 08/23/2018)

08/27/2018 08/27/2018 08/28/2018
08/29/2018 08/29/2018

64 EX PARTE APPLICATION for Reconsideration re Minutes of In Chambers Order/Directive - no proceeding held,,,, Set/Reset Motion Hearing and R&R Deadlines,,,, Set/Reset Hearing,,, 61 filed by plaintiff Lucas R.. (Attachments: # 1 Declaration of Dr. Amy Cohen, # 2 Proposed Order resetting hearing) (Holguin, Carlos) (Entered: 08/27/2018)
65 Amendment to EX PARTE APPLICATION for Reconsideration re Minutes of In Chambers Order/Directive - no proceeding held,,,, Set/Reset Motion Hearing and R&R Deadlines,,,, Set/Reset Hearing,,, 61 64 corrected declaration re: notice filed by Plaintiff Lucas R.. (Holguin, Carlos) (Entered: 08/27/2018)
66 MINUTES (IN CHAMBERS) ORDER RE PLAINTIFF LUCAS R.'S EX PARTE APPLICATION 64 by Judge Dolly M. Gee: Good cause appearing, the Court GRANTS Lucas R.'s Ex Parte Application that the Court decide the motion without a hearing. In addition, however, the Court orders Defendants to file, by September 4, 2018, a declaration from an official from the Office of Refugee Resettlement ("ORR") providing the identities and locations of: (1) the ORR Federal Field Specialist with responsibility for supervising the operations of Shiloh Residential Treatment Center (i.e., the location of Lucas R.'s confinement), and (2) the ORR Federal Field Specialist with responsibility for supervising the operations of St. Michael's Home for Children shelter facility (i.e., the location of Gabriela N.'s confinement). Lucas R.'s motion for preliminary injunction shall be taken under submission upon Defendants' filing of that declaration. The remainder of the Court's August 23, 2018 Order remains in full force and effect 61 .IT IS SO ORDERED. (See order for details.) (kti) (Entered: 08/28/2018)
67 OPPOSITION to NOTICE OF MOTION AND MOTION to Dismiss Case 51 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Jonathan Mulligan In Support Of, # 2 Exhibit A - Redacted, # 3 Exhibit B - Redacted, # 4 Exhibit C Redacted, # 5 Exhibit D - Redacted)(Welch, Leecia) (Entered: 08/29/2018)
68 APPLICATION to file document (s) in support of Opposition to Motion to Dismiss under seal filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 SEALED ATTACHMENT - Declaration of Megan Donohue in support of, # 2 SEALED

08/29/2018
08/29/2018
08/29/2018 08/31/2018 09/04/2018 09/05/2018

ATTACHMENT - Exhibit A - Undredacted Document, # 3 SEALED ATTACHMENT - Exhibit B - Unredacted Document, # 4 SEALED ATTACHMENT - Exhibit C - Unredacted Document, # 5 SEALED ATTACHMENT - Exhibit D - Unredacted Document, # 6 Proposed Order, # 7 Certificate of Service)(Donohue, Megan) ** SEALED ATTACHMENTS 1 TO 5 PURSUANT TO THE ORDER OF 9/5/2018 74 ** Modified on 9/5/2018 (gk). (Entered: 08/29/2018)
69 APPLICATION to file document (s) in support of Opposition to Motion to Dismiss under seal filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order, # 2 Redacted Document Exhibit A - Redacted, # 3 Redacted Document Exhibit B - Redacted, # 4 Redacted Document Exhibit C - Redacted, # 5 Redacted Document Exhibit D - Redacted)(Donohue, Megan) (Entered: 08/29/2018)
70 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (s) in support of Opposition to Motion to Dismiss under seal 69 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document Ex A, # 2 Unredacted Document Ex B, # 3 Unredacted Document Ex C, # 4 Unredacted Document Ex D)(Donohue, Megan) (Entered: 08/29/2018)
71 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Preliminary Injunction re Placement with Sponsor . Motion 48 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Exhibit Def Ex 62)(Insenga, Andrew) (Entered: 08/29/2018)
72 REPLY in support of NOTICE OF MOTION AND MOTION to Certify Class 25 filed by Plaintiffs Jaime D., Gabriela N., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Holguin, Carlos) (Entered: 08/31/2018)
73 NOTICE of Filing of Declaration filed by Defendant Alex Azar, E. Scott Lloyd. in Accordance with Court's Order 66 (Attachments: # 1 Declaration)(Stevenson, Marina) (Entered: 09/04/2018)
74 ORDER RE APPLICATION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS SUBMITTED IN SUPPORT OF OPPOSITION TO MOTION TO DISMISS by Judge Dolly M. Gee: The Court GRANTS Plaintiffs' unopposed application for leave to file under seal portions of

09/05/2018 09/05/2018 09/05/2018
09/05/2018 09/06/2018

Exhibits A-D offered in support of their Opposition to the Motion to Dismiss 68 , 69 . It is hereby ORDERED: (1) Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file Docket Entry Nos. 70 -1 (Notice of Placement in Secure or Staff Secure Facility), 70 -3 (Placement Authorization), and 70 -4 (Authorization for Medical, Dental, and Mental Health Care) under seal within three days of the date of this Order. (2) Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file a fully unredacted version of Docket Entry No. 70 -2 (UAC Assessment) under seal within three days of the date of this Order. (3) Plaintiffs shall refile on the public docket the redacted versions of the aforementioned documents (i.e., Docket Entry Nos. 69 -2, 69 -3, 69 -4, 69 -5) within three days of the date of this Order. (4) Docket Entry Nos. 68 -1, 68 2, 68 -3, 68 -4, and 68 -5 (i.e., duplicative unredacted versions of the aforementioned documents) shall remain sealed. (5) The Court Clerk is DIRECTED to unseal Docket Entry Nos. 68 , 68 -6, and 68 -7 as they do not contain the sensitive information that Plaintiffs intend to seal. (gk) (Entered: 09/05/2018)
75 REPLY in support of NOTICE OF MOTION AND MOTION for Preliminary Injunction re Placement with Sponsor . Motion 48 filed by Plaintiff Gabriela N.. (Welch, Leecia) (Entered: 09/05/2018)
76 APPLICATION to file document under seal filed by Plaintiff Gabriela N.. (Attachments: # 1 Exhibit 35 Redacted, # 2 Exhibit 37 Redacted, # 3 Proposed Order)(Welch, Leecia) (Entered: 09/05/2018)
77 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 76 filed by Plaintiff Gabriela N.. (Attachments: # 1 Exhibit 35 Unredacted, # 2 Exhibit 36 Unredacted, # 3 Exhibit 37 Unredacted, # 4 Affidavit of Service)(Welch, Leecia) (Entered: 09/05/2018)
78 REPLY in support NOTICE OF MOTION AND MOTION to Dismiss Case 51 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Exhibit Declaration of James De La Cruz)(Insenga, Andrew) (Entered: 09/05/2018)
79 MINUTES OF IN CHAMBERS - ORDER RE PLAINTIFF LUCAS R.S MOTION FOR PRELIMINARY INJUNCTION by Judge Dolly M. Gee: The Court DENIES, without prejudice, Lucas R.'s motion for preliminary injunction 29 , due to lack of jurisdiction. This Order in no way precludes Lucas R. from seeking appropriate relief in the United States District Court for the Southern District of Texas against Office of Refugee Resettlement Federal Field Specialist Micaela Vergara. Court Reporter: Not Reported. (gk) (Entered: 09/06/2018)

09/07/2018
09/07/2018 09/10/2018 09/10/2018 09/10/2018

80 ORDER RE APPLICATION FOR LEAVE TO FILE UNDER SEAL CERTAIN DOCUMENTS by Judge Dolly M. Gee: The Court GRANTS Plaintiff Gabriela N.'s unopposed application for leave to file under seal Exhibit 36 and portions of Exhibits 35 and 37, which she offers in support of her Reply to the Opposition to her Motion for a Preliminary Injunction 76 . It is hereby ORDERED: (1) Pursuant to Local Rule 79-5.2.2(c), Plaintiff shall e-file under seal Docket Entry Nos. 77-1 (Exhibit 35Paola Perez's Declaration), 77-2 (Exhibit 36September 4, 2018 Letter to Niky Hymel), and 77-3 (Exhibit 37Gabriela N.'s Declaration) within three (3) days of the date of this Order; and (2) Plaintiff shall refile on the public docket the redacted documents found in Docket Entry Nos. 76-1 (Exhibit 35) and 76-2 (Exhibit 37) within three days of the date of this Order. (gk) (Entered: 09/07/2018)
81 FIRST AMENDED COMPLAINT against Defendants Alex Azar, E. Scott Lloyd amending Complaint (Attorney Civil Case Opening),,, 1 , filed by Plaintiffs San Fernando Valley Refugee Children Center, Inc., Miguel Angel S., Unaccompanied Central American Refugee Empowerment, Daniela Marisol T., Gabriela N., Lucas R., Jaime D., Sirena P., Benjamin F.(Attorney Leecia Welch added to party Sirena P.(pty:pla), Attorney Leecia Welch added to party Benjamin F.(pty:pla))(Welch, Leecia) (Entered: 09/07/2018)
82 MINUTES (IN CHAMBERS) ORDER RE PLAINTIFF GABRIELA N.'S MOTION FOR PRELIMINARY INJUNCTION 48 by Judge Dolly M. Gee: Accordingly, the Court DENIES, without prejudice, Gabriela N.'s motion for preliminary injunction, due to lack of jurisdiction. This Order in no way precludes Gabriela N. from seeking appropriate relief in the United States District Court for the Southern District of Texas against ORR Federal Field Specialist Niky Hymel. IT IS SO ORDERED. (See order for details.) (kti) (Entered: 09/10/2018)
83 NOTICE filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Pursuant to this Court's Order (ECF 74) Notice of Filing of Redacted Exhibits iso Opposition to Motion to Dismiss (Attachments: # 1 Exhibit A Redacted, # 2 Exhibit B Redacted, # 3 Exhibit C Redacted, # 4 Exhibit D Redacted)(Donohue, Megan) (Entered: 09/10/2018)
84 SEALED DOCUMENT re Response in Opposition to Motion, 67 , Order on Motion for Leave to File Document Under Seal,,,,,,,,,,, 74 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee

09/10/2018 09/12/2018 09/12/2018 09/13/2018 09/13/2018 09/13/2018

Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit A Unredacted, # 2 Exhibit B Unredacted, # 3 Exhibit C Unredacted, # 4 Exhibit D Unredacted, # 5 Affidavit of Service)(Donohue, Megan) (Entered: 09/10/2018)
85 MINUTES (IN CHAMBERS) ORDER DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT 51 AND DENYING WITHOUT PREJUDICE PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 25 by Judge Dolly M. Gee: In light of Plaintiffs' FAC, the Court DENIES as moot Defendants' motion to dismiss. The Court further DENIES without prejudice Plaintiffs' motion for class certification. (See order for details.) (kti) (Entered: 09/10/2018)
86 NOTICE of Filing of Redacted Exhibits in Support of Motion for Preliminary Injunction re Plaintiff Gabriela N. filed by Plaintiff Gabriela N.. (Attachments: # 1 Exhibit 35, # 2 Exhibit 37)(Cieslak, Jon) (Entered: 09/12/2018)
87 SEALED DOCUMENT re Reply (Motion related) 75 , Order on Motion for Leave to File Document Under Seal,,, 80 filed by Plaintiff Gabriela N.. (Attachments: # 1 Exhibit 35 Unredacted, # 2 Exhibit 36 Unredacted, # 3 Exhibit 37 Unredacted, # 4 Affidavit of Service)(Cieslak, Jon) (Entered: 09/12/2018)
88 EX PARTE APPLICATION to Proceed Using Pseudonyms filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Leecia Welch, # 2 Proposed Order) (Welch, Leecia) (Entered: 09/13/2018)
89 APPLICATION to file document under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Welch, Leecia) (Entered: 09/13/2018)
90 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 89 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit A, # 2 Affidavit of Service)(Welch, Leecia) (Entered: 09/13/2018)

09/13/2018 09/14/2018 09/14/2018
09/17/2018 09/18/2018
09/18/2018 09/28/2018

91 Amended Certification and NOTICE of Interested Parties filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, (Welch, Leecia) (Entered: 09/13/2018)
92 ORDER RE PLAINTIFFS' EX PARTE APPLICATION FOR LEAVE TO PROCEED USING PSEUDONYMS 88 by Judge Dolly M. Gee. (See order for details.) (kti) (Entered: 09/14/2018)
93 ORDER RE APPLICATION TO FILE UNDER SEAL ATTACHMENT A TO APPLICATION TO USE PSEUDONYMS 89 by Judge Dolly M. Gee: The Court therefore GRANTS their request. Accordingly, it is hereby ORDERED that Plaintiffs are granted leave to file under seal Attachment A to the Application to Use Pseudonyms. Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file Attachment A under seal within three (3) days of the date of this Order. IT IS SO ORDERED. (See order for details.) (kti) (Entered: 09/14/2018)
94 Joint STIPULATION for Order for Proposed Briefing Schedule filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Proposed Order)(Stevenson, Marina) (Entered: 09/17/2018)
95 SEALED DOCUMENT re Sealed Declaration in SupportDeclaration, 90 , APPLICATION to file document under seal 89 , Order on Motion for Leave to File Document Under Seal, 93 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit A, # 2 Affidavit of Service)(Attorney Jon F Cieslak added to party Benjamin F.(pty:pla), Attorney Jon F Cieslak added to party Sirena P.(pty:pla))(Cieslak, Jon) (Entered: 09/18/2018)
96 ORDER RE JOINT STIPULATION FOR BRIEFING SCHEDULE AND HEARING DATE ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND DEFENDANTS' MOTION TO DISMISS 94 by Judge Dolly M. Gee. (See order for details.) (kti) (Entered: 09/18/2018)
97 NOTICE OF MOTION AND MOTION to Certify Class filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Motion set for hearing on 11/2/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum,

# 2 Declaration Leecia Welch, # 3 Notice of Lodgment, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5 - Part 1, # 9 Exhibit Exhibit 5 - Part 2, # 10 Exhibit Exhibit 6, # 11 Exhibit Exhibit 7, # 12 Exhibit Exhibit 8, # 13 Exhibit Exhibit 9, # 14 Exhibit Exhibit 10, # 15 Exhibit Exhibit 11, # 16 Exhibit Exhibit 12, # 17 Exhibit Exhibit 13, # 18 Exhibit Exhibit 14, # 19 Exhibit Exhibit 15, # 20 Exhibit Exhibit 16, # 21 Exhibit Exhibit 17, # 22 Exhibit Exhibit 18, # 23 Exhibit Exhibit 19, # 24 Exhibit Exhibit 20, # 25 Exhibit Exhibit 21, # 26 Exhibit Exhibit 22, # 27 Exhibit Exhibit 23, # 28 Exhibit Exhibit 24, # 29 Exhibit Exhibit 25, # 30 Exhibit Exhibit 26, # 31 Exhibit Exhibit 27, # 32 Exhibit Exhibit 28, # 33 Exhibit Exhibit 29, # 34 Exhibit Exhibit 30, # 35 Exhibit Exhibit 31, # 36 Exhibit Exhibit 32, # 37 Proposed Order, # 38 Certificate of Service) (Attorney Carlos Holguin added to party Benjamin F.(pty:pla), Attorney Carlos Holguin added to party Sirena P.(pty:pla)) (Holguin, Carlos) (Entered: 09/28/2018)

09/28/2018

98 APPLICATION for Leave to file documents under seal Exhibits to Motion for Class Certification filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Application set for hearing on 11/2/2018 at 09:30 AM before Magistrate Judge Paul L. Abrams. (Attachments: # 1 Attachments - Redacted Documents Exs 10-22, 24-27, # 2 Proposed Order, # 3 Certificate of Service) (Holguin, Carlos) (Entered: 09/28/2018)

09/28/2018

99 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Exhibits to Motion for Class Certification) under seal 26 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit Unredacted Document Exs. 10-22, 24-27, # 2 Certificate of Service)(Holguin, Carlos) (Entered: 09/28/2018)

09/28/2018

100 SEALED DOCUMENT - (PER ORDER DATED 10/29/2018 121 ) NOTICE of Filing of Declaration filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Declaration of James S. De La Cruz)(Stevenson, Marina) Modified on 10/30/2018 (cbr). (Entered: 09/28/2018)

09/28/2018 101 NOTICE OF MOTION AND MOTION to Dismiss Case , NOTICE OF MOTION AND MOTION to Transfer Case to District for District of Columbia filed by Defendants Alex Azar, E. Scott Lloyd. Motion set

for hearing on 11/2/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Proposed Order proposed order, # 2 Memorandum memo in support of motion to dismiss or transfer) (Insenga, Andrew) (Entered: 09/28/2018)

10/01/2018

102 Notice of Appearance or Withdrawal of Counsel: for attorney Freya E K Pitts counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Adding Freya Pitts as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Lucas R., et al. (Attorney Freya E K Pitts added to party Jaime D.(pty:pla), Attorney Freya E K Pitts added to party Benjamin F.(pty:pla), Attorney Freya E K Pitts added to party Gabriela N.(pty:pla), Attorney Freya E K Pitts added to party Sirena P.(pty:pla), Attorney Freya E K Pitts added to party Lucas R.(pty:pla), Attorney Freya E K Pitts added to party Miguel Angel S.(pty:pla), Attorney Freya E K Pitts added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Freya E K Pitts added to party Daniela Marisol T.(pty:pla), Attorney Freya E K Pitts added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Pitts, Freya) (Entered: 10/01/2018)

10/01/2018

103 ORDER RE PLAINTIFFS' UNOPPOSED APPLICATION FOR LEAVE TO FILE UNDER SEAL CERTAIN DOCUMENTS SUBMITTED IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Judge Dolly M. Gee: IT IS HEREBY ORDERED that Plaintiffs' Unopposed Application for Leave to File Under Seal Certain Documents Submitted in Support of Plaintiffs' Class Certification Motion 98 is GRANTED. Pursuant to Local Rule 795.2.2(c), Plaintiff shall e-file under seal Docket Entry No. 99-1 within three days of the date of this Order. Within three days of the date of this Order, Plaintiffs shall refile on the public docket the redacted versions of these documents that are found in Docket Entry No. 98-1. (gk) (Entered: 10/01/2018)

10/04/2018

104 NOTICE of Filing of Redacted Exhibits filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Pursuant to this Court's Order (ECF 103) (Attachments: # 1 Exhibit Redacted 1022 and 24-27)(Cieslak, Jon) (Entered: 10/04/2018)

10/04/2018 105 SEALED DOCUMENT re NOTICE OF MOTION AND MOTION to Certify Class 97 , Order on Motion for Leave to File Document,, 103 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N.,

Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit Unredacted 10-22 and 24-27, # 2 Affidavit of Service)(Cieslak, Jon) (Entered: 10/04/2018)

10/05/2018 106 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Certify Class 97 filed by Defendants Alex Azar, E. Scott Lloyd. (Stevenson, Marina) (Entered: 10/05/2018)

10/05/2018

107 OPPOSITION to NOTICE OF MOTION AND MOTION to Dismiss Case NOTICE OF MOTION AND MOTION to Transfer Case to District for District of Columbia 101 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Jonathan Mulligan, # 2 Exhibit 1-4 to Mulligan Decl.)(Holguin, Carlos) (Entered: 10/05/2018)

10/05/2018

108 APPLICATION to file document under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit Redacted 1-4, # 2 Proposed Order)(Holguin, Carlos) (Entered: 10/05/2018)

10/05/2018

109 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 108 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit Unredacted 1-4, # 2 Affidavit of Service)(Holguin, Carlos) (Entered: 10/05/2018)

10/09/2018

110 ORDER RE UNOPPOSED APPLICATION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS SUBMITTED IN SUPPORT OF OPPOSITION TO MOTION TO DISMISS by Judge Dolly M. Gee: The Court GRANTS Plaintiffs' unopposed application for leave to file under seal portions of Exhibits 14 offered in support of their Opposition to the Motion to Dismiss 108 . It is hereby ORDERED: (1) Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file Docket Entry No. 109-1 at ECF p. 2 (Notice of Placement in Secure or Staff Secure Facility), ECF pp. 78 (Placement Authorization), and ECF pp. 1011 (Authorization for Medical, Dental, and Mental Health Care) under seal within three days of the date of this Order; (2) Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file a fully unredacted version of Docket Entry No.

109-1 at ECF pp. 45 (UAC Assessment) under seal within three days of the date of this Order; and (3) Plaintiffs shall refile on the public docket the redacted versions of the aforementioned documents found in Docket Entry No. 108-1 within three days of the date of this Order. (gk) (Entered: 10/09/2018)

10/12/2018

111 NOTICE of Filing of Redacted Exhibits filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 1 Redacted, # 2 Exhibit 2 Redacted, # 3 Exhibit 3 Redacted, # 4 Exhibit 4 Redacted)(Cieslak, Jon) (Entered: 10/12/2018)

10/12/2018

112 SEALED DOCUMENT re Response in Opposition to Motion,, 107 , Order on Motion for Leave to File Document Under Seal,,,, 110 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 1 Unredacted, # 2 Exhibit 2 Unredacted, # 3 Exhibit 3 Unredacted, # 4 Exhibit 4 Unredacted, # 5 Affidavit of Service)(Cieslak, Jon) (Entered: 10/12/2018)

10/12/2018

113 REPLY Support of Motion NOTICE OF MOTION AND MOTION to Dismiss Case NOTICE OF MOTION AND MOTION to Transfer Case to District for District of Columbia 101 filed by Defendants Alex Azar, E. Scott Lloyd. (Stevenson, Marina) (Entered: 10/12/2018)

10/12/2018

114 REPLY in Support of Motion for Class Certification NOTICE OF MOTION AND MOTION to Certify Class 97 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 33 - Mulligan Decl., # 2 Exhibit 34 Redacted Miguel Angel S. Decl., # 3 Exhibit 35 - Redacted Gabriela N. Decl.)(Welch, Leecia) (Entered: 10/12/2018)

10/15/2018

115 APPLICATION to file document under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Cieslak, Jon) (Entered: 10/15/2018)

10/15/2018

116 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document under seal 115 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T.,

Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 34 Unredacted, # 2 Exhibit 35 Unredacted, # 3 Affidavit of Service)(Cieslak, Jon) (Entered: 10/15/2018)

10/17/2018

117 ORDER GRANTING PLAINTIFFS' UNOPPOSED APPLICATION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS SUBMITTED IN SUPPORT OF REPLY RE MOTION FOR CLASS CERTIFICATION by Judge Dolly M. Gee: The Court GRANTS Plaintiffs' unopposed application for leave to file under seal portions of Exhibit 34 (Miguel Angel S.'s Declaration) and Exhibit 35 (Gabriela N.'s Declaration) offered in support of their Reply re the Motion for Class Certification 115 . It is hereby ORDERED that: (1) Pursuant to Local Rule 79-5.2.2(c), Plaintiffs shall e-file Docket Entry Nos. 116 -1 and [116-2] under seal within three days of the date of this Order; and (2) Plaintiffs shall refile on the public docket the redacted versions of the aforementioned documents found in Docket Entry Nos. 114 -2 and 114 -3. (gk) (Entered: 10/17/2018)

10/19/2018

118 NOTICE of Filing of Redacted Exhibits filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 34 Redacted, # 2 Exhibit 35 Redacted)(Cieslak, Jon) (Entered: 10/19/2018)

10/19/2018

119 SEALED DOCUMENT re Reply (Motion related),, 114 , Order on Motion for Leave to File Document Under Seal,,, 117 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 34 Unredacted, # 2 Exhibit 35 Unredacted, # 3 Affidavit of Service)(Cieslak, Jon) (Entered: 10/19/2018)

10/26/2018

120 NOTICE OF MOTION AND MOTION to Strike portion of prior declaration Notice (Other) 100 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Declaration proposed replacement declaration, # 2 Proposed Order proposed order) (Insenga, Andrew) (Entered: 10/26/2018)

10/29/2018

121 ORDER RE UNOPPOSED MOTION TO STRIKE PORTIONS OF PARAGRAPH 7 OF THE DECLARATION OF JAMES S. DE LA CRUZ, DOC. 100-1 120 by Judge Dolly M. Gee: The Court DIRECTS the Court clerk to place Docket Entry Nos. 100 and 100-1 under seal such that these documents will no longer be available to the public or the parties to this matter; and Within three (3) days of this Order,

Defendants shall refile the Declaration of James S. De La Cruz that is currently found in Docket Entry No. 120-1. (cbr) (Entered: 10/30/2018)

11/01/2018

122 NOTICE of Filing of Declaration filed by Defendants Alex Azar, E. Scott Lloyd. in Accordance with Court's Order 121 to replace [1001] (Attachments: # 1 Declaration of James S. De La Cruz)(Stevenson, Marina) (Entered: 11/01/2018)

11/01/2018

123 NOTICE filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Declaration Declaration of James S. De La Cruz)(Stevenson, Marina) (Entered: 11/01/2018)

11/02/2018

124 NOTICE of Appearance filed by attorney Sherry Denise Soanes on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Sherry Denise Soanes added to party Alex Azar(pty:dft), Attorney Sherry Denise Soanes added to party E. Scott Lloyd(pty:dft))(Soanes, Sherry) (Entered: 11/02/2018)

11/02/2018

125 MINUTES OF Motion Hearing held before Judge Dolly M. Gee RE: Plaintiffs' Motion for Class Certification 97 ; Defendants' Motion to Dismiss, and Alternative Motion to Transfer 101 . The Court invites counsel to respond to the tentative ruling. Parties submit on the tentative ruling. The tentative ruling stands and a written order will issue. Defendants request for an extension of time to file an answer to the first amended complaint is GRANTED. Defendants shall file their answer by 1/4/2019. Court Reporter: Anne Kielwasser. (gk) (Entered: 11/05/2018)

11/02/2018

126 MINUTES OF IN CHAMBERS - ORDER RE DEFENDANTS MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Judge Dolly M. Gee: The Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss or Transfer ("MTD") 101 and GRANTS Plaintiffs' Motion for Class Certification 97 . Defendants' MTD is GRANTED only insofar as it seeks the dismissal without prejudice of Plaintiffs' claims to enforce the Flores Agreement, but not insofar as it requests the dismissal of Plaintiffs' claims that ORR failed to provide sufficient procedural safeguards for alien minors to exercise their Flores rights. The remainder of Defendants' MTD is DENIED. Defendants shall file an Answer to the First Amended Complaint within 60 days of the date of this Order. The Court CERTIFIES five classes that are comprised of all minors in Office of Refugee Resettlement custody pursuant to 6 U.S.C. section 279 and/or 8 U.S.C. section 1232. See document for classes, appointed class representatives, and appointed class counsel. Court Reporter: Not Reported. (gk) (Entered: 11/05/2018)

11/16/2018

127 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Certify Class Action,,,,, Order on Motion to Dismiss Case,,,,, Order on Motion to Transfer Case,,,, 126 filed by Defendants Alex Azar, E. Scott Lloyd. Motion set for hearing on 12/14/2018 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum) (Insenga, Andrew) (Entered: 11/16/2018)

11/20/2018

128 Joint STIPULATION to Continue Briefing Schedule on Defendants' Motion to Reconsider from Opposition Due: November 21, 2018; Reply Due: November 30, 2018 to Opposition Due: December 7, 2018; Reply Due: 21, 2018 Re: NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Certify Class Action,,,,, Order on Motion to Dismiss Case,,,,, Order on Motion to Transfer Case,,,, 126 127 filed by Plaintiff Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Cieslak, Jon) (Entered: 11/20/2018)

11/21/2018

129 ORDER GRANTING JOINT STIPULATION FOR EXTENSION OF BRIEFING SCHEDULE ON DEFENDANTS' MOTION TO RECONSIDER by Judge Dolly M. Gee: Upon the parties' Joint Stipulation for Continuance of Briefing Schedule on Defendants' Motion to Reconsider 128 , the briefing schedule is continued as follows: Plaintiffs' Opposition to Defendants' Motion to Reconsider 127 is due by 12/7/2018 and Defendants' Reply In Support of Motion to Reconsider is due by 12/21/2018. As the parties have waived oral argument, the Court finds it appropriate to decide the motion without oral argument and will take the motion under submission when briefing is complete. (gk) (Entered: 11/26/2018)

12/07/2018

130 OPPOSITION to NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Certify Class Action,,,,, Order on Motion to Dismiss Case,,,,, Order on Motion to Transfer Case,,,, 126 127 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Jon Cieslak iso Opposition, # 2 Exhibit A to Cieslak Decl.)(Holguin, Carlos) (Entered: 12/07/2018)

12/14/2018

131 NOTICE OF MOTION AND MOTION for Discovery regarding Initiation filed by Plaintiff Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Motion set for hearing on 1/4/2019 at 09:30

AM before Judge Dolly M. Gee. (Attachments: # 1 Joint Stipulation, # 2 Declaration of Jon Cieslak, # 3 Exhibit A to Cieslak Declaration, # 4 Proposed Order)(Donohue, Megan) (Entered: 12/14/2018)

12/17/2018

132 SUPPLEMENT to MOTION for Discovery regarding Initiation 131 Defendants' supplemental memorandum pursuant to L.R. 37-2.3 in Response to Plaintiffs' Motion to Initiate Discovery filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Exhibit Exh. A: Decl. of Brian Stimson)(Moss, Benjamin) (Entered: 12/17/2018)

12/21/2018

133 NOTICE OF MOTION AND MOTION to Extend Time to File Answer to 1/9/2019 re Amended Complaint/Petition, 81 filed by defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Memorandum In Support of Motion for Extension, # 2 Proposed Order) (Soanes, Sherry) (Entered: 12/21/2018)

12/21/2018

134 REPLY in support of NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion to Certify Class Action,,,,, Order on Motion to Dismiss Case,,,,, Order on Motion to Transfer Case,,,, 126 127 filed by Defendants Alex Azar, E. Scott Lloyd. (Insenga, Andrew) (Entered: 12/21/2018)

12/26/2018

135 EX PARTE APPLICATION to Stay Case pending appropriation of funding to end shutdown caused by lapse of appropriations filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Proposed Order) (Moss, Benjamin) (Entered: 12/26/2018)

12/26/2018

136 ORDER RE UNOPPOSED MOTION FOR AN EXTENSION OF TIME by Judge Dolly M. Gee: The Court GRANTS Defendants' unopposed Motion 133 and CONTINUES the deadline forDefendants to file an answer to the First Amended Complaint 81 to 1/9/2019. (gk) (Entered: 12/26/2018)

12/27/2018

137 MINUTES (IN CHAMBERS) ORDER DENYING PLAINTIFF'S MOTION TO INITIATE DISCOVERY 131 by Judge Dolly M. Gee: Accordingly, the Court DENIES Plaintiffs' Motion and VACATES the January 4, 2019 hearing. IT IS SO ORDERED. (See order for details.) (kti) (Entered: 12/27/2018)

12/27/2018

138 MINUTES (IN CHAMBERS) ORDER RE DEFENDANTS' MOTION FOR RECONSIDERATION 127 by Judge Dolly M. Gee: For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' MFR, and concurrently ISSUES an amended version of the November 2, 2018 Order. IT IS SO ORDERED. (See order for details.) (kti) (Entered: 12/27/2018)

12/27/2018

139 Opposition re: EX PARTE APPLICATION to Stay Case pending appropriation of funding to end shutdown caused by lapse of appropriations 135 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Megan Donohue, # 2 Exhibit A to Declaration of Megan Donohue, # 3 Declaration of Carlos Holguin, # 4 Certificate of Service)(Attorney Megan L Donohue added to party Benjamin F.(pty:pla), Attorney Megan L Donohue added to party Sirena P.(pty:pla))(Donohue, Megan) (Entered: 12/27/2018)

12/27/2018

140 Opposition re: EX PARTE APPLICATION to Stay Case pending appropriation of funding to end shutdown caused by lapse of appropriations 135 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Megan Donohue, # 2 Exhibit A to Declaration of Megan Donohue, # 3 Declaration of Carlos Holguin, # 4 Certificate of Service)(Attorney Megan L Donohue added to party Benjamin F.(pty:pla), Attorney Megan L Donohue added to party Sirena P.(pty:pla))(Donohue, Megan) (Entered: 12/27/2018)

12/27/2018

141 MINUTE (IN CHAMBERS) AMENDED ORDER RE DEFENDANTS' MOTION TO DISMISS 101 AND PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 97 by Judge Dolly M. Gee. (See order for details.) (kti) (Entered: 12/27/2018)

12/27/2018

142 ORDER DENYING DEFENDANTS' EX PARTE APPLICATION FOR A STAY OF PROCEEDINGS 135 by Judge Dolly M. Gee: Therefore, the Court DENIES Defendants' Ex Parte Application for the imposition of a stay. IT IS SO ORDERED. (See order for details.) (kti) (Entered: 12/27/2018)

12/31/2018

143 NOTICE OF ERRATA filed by Defendants Alex Azar, E. Scott Lloyd. correcting EX PARTE APPLICATION to Stay Case pending appropriation of funding to end shutdown caused by lapse of appropriations 135 Errata concerning impact of appropriations lapse on HHS and response to Courts December 27, 2018 order denying abeyance (Moss, Benjamin) (Entered: 12/31/2018)

01/09/2019

144 ANSWER to Amended Complaint/Petition, 81 Answer to First Amended Complaint filed by Defendants (in their official capacity) Alex Azar, E. Scott Lloyd.(Moss, Benjamin) (Entered: 01/09/2019)

01/09/2019 145 ANSWER to Amended Complaint/Petition, 81 with JURY DEMAND filed by Defendant E. Scott Lloyd.(Attorney David E Pinchas added to party E. Scott Lloyd(pty:dft))(Pinchas, David) (Entered: 01/09/2019)

01/09/2019

146 DECLARATION of James De La Cruz Amended Correcting Release Date of GABRIELA N. filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Declaration of James De La Cruz)(Soanes, Sherry) (Entered: 01/09/2019)

01/10/2019

147 SCHEDULING MEETING OF COUNSEL [Fed. R. Civ. P. 16, 26(f)] by Judge Dolly M. Gee. Rule 26 Meeting Report due by 2/8/2019. Scheduling Conference set for 2/22/2019 at 9:30 a.m. (See order for details.) (kti) (Entered: 01/10/2019)

02/08/2019

148 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 6 weeks, filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment.. (Holguin, Carlos) (Entered: 02/08/2019)

02/21/2019

149 NOTICE of Appearance filed by attorney Jeffrey S Robins on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Jeffrey S Robins added to party Alex Azar(pty:dft), Attorney Jeffrey S Robins added to party E. Scott Lloyd(pty:dft))(Robins, Jeffrey) (Entered: 02/21/2019)

02/22/2019

150 MINUTES OF Scheduling Conference held before Judge Dolly M. Gee: Parties are ordered to meet and confer and then contact the clerk to the Hon. Paul L. Abrams, United States Magistrate Judge, on 2/25/2019, to select a discovery conference date. Out-of-town counsel may participate in the conference telephonically. Defendant E. Scott Lloyd shall file any motion relating to personal jurisdiction within 30 days of this order. The Court issues the Scheduling and Case Management Orders for Court Trial, and Jury Trial (as to Defendant Lloyd), with further dates and deadlines. Counsel are reminded of their obligations and requirements to timely and fully comply with all orders. Court Reporter: Pat Cuneo. (gk) (Entered: 02/22/2019)

02/22/2019

151 SCHEDULING AND CASE MANAGEMENT ORDER FOR COURT TRIAL by Judge Dolly M. Gee. Final Pretrial Conference set for 6/9/2020 02:00 PM before Judge Dolly M. Gee. Bench Trial set for 7/28/2020 09:30 AM before Judge Dolly M. Gee. See document for further details. (Attachments: # 1 Schedule of Pretrial and Trial Dates) (gk) (Entered: 02/22/2019)

02/22/2019

152 SCHEDULING AND CASE MANAGEMENT ORDER FOR JURY TRIAL by Judge Dolly M. Gee. Final Pretrial Conference set for 6/9/2020 02:00 PM before Judge Dolly M. Gee. Jury Trial set for

7/28/2020 08:30 AM before Judge Dolly M. Gee. See document for further details. (Jury Trial as to Claims Against Defendant Lloyd) (Attachments: # 1 Schedule of Pretrial and Trial Dates) (gk) (Entered: 02/22/2019)

02/22/2019

153 ORDER/REFERRAL to ADR Procedure No 2 by Judge Dolly M. Gee. Case ordered to Court Mediation Panel for mediation. ADR Proceeding to be held no later than 8/5/2019 (early mediation deadline); 4/3/2020. Joint status report re settlement due by 8/19/2019 (joint report re results of early mediation); 4/17/2020. (gk) (Entered: 02/22/2019)

02/26/2019

154 NOTICE of Appearance filed by attorney Woei-Tyng Daniel Shieh on behalf of Defendant Alex Azar (Attorney Woei-Tyng Daniel Shieh added to party Alex Azar(pty:dft))(Shieh, Woei-Tyng) (Entered: 02/26/2019)

02/26/2019

155 SCHEDULING NOTICE TEXT ONLY ENTRY (In Chambers) by Magistrate Judge Paul L. Abrams. A Discovery Conference is set for Wednesday, March 6, 2019, at 1:30 p.m. before United States Magistrate Judge Paul L. Abrams. For the parties appearing in person, Judge Abrams' Courtroom is 780 on the 7th Floor of the Roybal Federal Building which is located at 255 E. Temple Street, Los Angeles. For the parties appearing telephonically, please email the court clerk at christianna_howard@cacd.uscourts.gov for call-in information. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ch) TEXT ONLY ENTRY (Entered: 02/26/2019)

02/28/2019

156 TRANSCRIPT ORDER as to Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment for Court Reporter. Court will contact Kira Setren at ksetren@youthlaw.org with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Welch, Leecia) (Entered: 02/28/2019)

03/06/2019

157 MINUTES OF Discovery Conference held before Magistrate Judge Paul L. Abrams. The Court will hold a telephonic conference on Tuesday, April 9, 2019, at 2:00 p.m. to discuss the parties' progress in the discovery process. SEE ORDER FOR FURTHER DETAILS. Court Recorder: courtsmart. (ch) (Entered: 03/07/2019)

03/12/2019

158 STIPULATION for Protective Order filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Cieslak, Jon) (Entered: 03/12/2019)

03/12/2019 159 STIPULATED PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams. 158 (ch) (Entered: 03/12/2019)

03/13/2019

160 NOTICE of Appearance filed by attorney Jonathan Kevin Ross on behalf of Defendant Alex Azar (Attorney Jonathan Kevin Ross added to party Alex Azar(pty:dft))(Ross, Jonathan) (Entered: 03/13/2019)

03/22/2019

161 NOTICE OF MOTION AND MOTION for Judgment on the Pleadings , NOTICE OF MOTION AND MOTION to Dismiss defendant E. Scott Lloyd filed by Defendant E. Scott Lloyd. Motion set for hearing on 4/26/2019 at 09:30 AM before Judge Dolly M. Gee. (Attachments: # 1 Declaration of E. Scott Lloyd, # 2 Proposed Order Granting Defendant E. Scott Lloyd's Motion for Judgment on the Pleadings and Motion to Dismiss) (Pinchas, David) (Entered: 03/22/2019)

04/02/2019

162 First STIPULATION to Continue hearing on motion for judgment on the pleadings from April 26, 2019 to May 17, 2019 Re: NOTICE OF MOTION AND MOTION for Judgment on the Pleadings NOTICE OF MOTION AND MOTION to Dismiss defendant E. Scott Lloyd 161 filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Holguin, Carlos) (Entered: 04/02/2019)

04/04/2019

163 ORDER CONTINUING HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS by Judge Dolly M. Gee: Upon Stipulation 162 , IT IS HEREBY ORDERED that the hearing on Defendant Lloyd's motion for judgment on the pleadings 161 is continued to 5/17/2019 at 09:30 AM before Judge Dolly M. Gee. Plaintiffs shall file their brief in opposition on or before 4/19/2019; Defendant's reply brief shall be filed on or before 5/3/2019. (gk) (Entered: 04/04/2019)

04/09/2019

164 MINUTES OF Discovery Conference held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss discovery issues and the parties' preference for mediation. The Court will hold a telephonic conference on Wednesday, May 8, 2019, at 2:00 p.m. to discuss the parties' progress in the discovery process. Counsel shall contact the courtroom clerk via email at christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: courtsmart. (ch) (Entered: 04/16/2019)

04/17/2019

165 TRANSCRIPT for proceedings held on February 22, 2019 at 9:39 a.m. Court Reporter: PAT CUNEO CSR 1600, OFFICIAL REPORTER, www.patcuneo.com. Transcript may be viewed at the court public

terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 5/8/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/16/2019. (Cuneo, Patricia) (Entered: 04/17/2019)

04/17/2019

166 NOTICE OF FILING TRANSCRIPT filed for proceedings February 22, 2019 at 9:39 a.m. re Transcript 165 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Cuneo, Patricia) TEXT ONLY ENTRY (Entered: 04/17/2019)

04/19/2019

167 OPPOSITION to NOTICE OF MOTION AND MOTION for Judgment on the Pleadings NOTICE OF MOTION AND MOTION to Dismiss defendant E. Scott Lloyd 161 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Cieslak, Jon) (Entered: 04/19/2019)

04/22/2019

168 NOTICE of Appearance filed by attorney Yamileth G Davila on behalf of Defendants Alex Azar, E. Scott Lloyd (Attachments: # 1 Certificate of Service)(Attorney Yamileth G Davila added to party Alex Azar(pty:dft), Attorney Yamileth G Davila added to party E. Scott Lloyd(pty:dft))(Davila, Yamileth) (Entered: 04/22/2019)

04/22/2019

169 TEXT ONLY ENTRY (In Chambers) by Magistrate Judge Paul L. Abrams. NO LATER THAN WEDNESDAY, APRIL 24, 2019, the parties shall report to the Court about the status of their desire, expressed at the April 9, 2019, conference, to have Magistrate Judge Pym conduct settlement proceedings in this action instead of proceeding with ADR involving the Court Mediation Panel as previously ordered by the District Judge, See ECF No. 153. 153 164 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ch) TEXT ONLY ENTRY (Entered: 04/22/2019)

04/22/2019

170 Joint STIPULATION for Order /Referral to ADR filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Cieslak, Jon) (Entered: 04/22/2019)

04/23/2019

171 ORDER RE MEDIATION by Judge Dolly M. Gee: Pursuant to the parties' Stipulation 170 , the Court hereby refers this matter to the Honorable Sheri Pym for mediation pursuant to ADR Procedure No. 1. (gk) (Entered: 04/24/2019)

04/30/2019

172 ORDER RE SETTLEMENT CONFERENCE by Magistrate Judge Sheri Pym. This case has been referred to Magistrate Judge Sheri Pym for settlement proceedings.The Settlement Conference is placed on calendar for June 12, 2019, at 9:30a.m., in Courtroom 3 of the United States District Court, RiversideCourthouse, located at 3470 Twelfth Street in Riverside, California (SEE ORDER FOR DETAILS). (kca) (Entered: 04/30/2019)

05/03/2019

173 REPLY in Support of NOTICE OF MOTION AND MOTION for Judgment on the Pleadings NOTICE OF MOTION AND MOTION to Dismiss defendant E. Scott Lloyd 161 filed by Defendant E. Scott Lloyd. (Pinchas, David) (Entered: 05/03/2019)

05/07/2019

174 SCHEDULING NOTICE TEXT ONLY ENTRY (In Chambers) by Magistrate Judge Paul L. Abrams. At the request of counsel, the telephonic discovery conference scheduled for Wednesday, May 8, 2019, has been continued to May 29, 2019, at 2:00 p.m. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ch) TEXT ONLY ENTRY (Entered: 05/07/2019)

05/16/2019

175 (IN CHAMBERS) ORDER by Judge Dolly M. Gee: The Court finds that Defendant E. Scott Lloyd's Motion for Judgment on the Pleadings and Motion to Dismiss 161 presently scheduled for hearing on May 17, 2019, is appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. L.R. 7-15. Accordingly, the motion is taken UNDER SUBMISSION and the hearing is vacated. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (kti) TEXT ONLY ENTRY (Entered: 05/16/2019)

05/21/2019

176 Notice of Appearance or Withdrawal of Counsel: for attorney Rebecca L Tarneja counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Adding Rebecca L. Tarneja as counsel of record for Plaintiffs Lucas R., By His Next Friend Madelyn R.; Daniela Marisol T., By Her Next Friend Katherine L.; Miguel Angel S., By His Next Friend Gerardo S.; Gabriela N., By Her Next Friend Isaac N.; Jaime D., By His Next Friend Reyna D.; San Fernando Valley Refugee Children Center, Inc.; Unaccompanied Central American for the reason indicated in the G-123 Notice. Filed by Plaintiff Lucas R., By His Next Friend Madelyn R.; Daniela Marisol T., By Her Next Friend Katherine L.; Miguel Angel S., By His Next Friend Gerardo S.; Gabriela N., By Her Next Friend Isaac N.; Jaime D., By His Next Friend Reyna D.; San Fernando Valley Refugee Children Center, Inc.; Unaccompanied Central American. (Attorney Rebecca L Tarneja added to party Jaime D.(pty:pla), Attorney Rebecca L Tarneja

added to party Benjamin F.(pty:pla), Attorney Rebecca L Tarneja added to party Gabriela N.(pty:pla), Attorney Rebecca L Tarneja added to party Sirena P.(pty:pla), Attorney Rebecca L Tarneja added to party Lucas R.(pty:pla), Attorney Rebecca L Tarneja added to party Miguel Angel S.(pty:pla), Attorney Rebecca L Tarneja added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Rebecca L Tarneja added to party Daniela Marisol T.(pty:pla), Attorney Rebecca L Tarneja added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Tarneja, Rebecca) (Entered: 05/21/2019)

05/29/2019

177 MINUTES OF TELEPHONIC DISCOVERY CONFERENCE held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss discovery issues and the upcoming mediation. The Court will hold a further telephonic conference on Wednesday, July 10, 2019, at 2:00 p.m. to discuss the parties' progress in the discovery process. Counsel shall contact the courtroom clerk via email to christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: cs 5/29/19. (ch) (Entered: 05/29/2019)

06/07/2019 178 ORDER by Magistrate Judge Sheri Pym Excusing Certain Persons from June 12, 2019 Settlement Conference (SEE ORDER FOR DETAILS). (kca) (Entered: 06/07/2019)

06/12/2019

179 MINUTES OF Settlement Conference held before Magistrate Judge Sheri Pym: Court and counsel engaged in settlement discussions off the record. The parties did not reach a settlement, but discussions continue. The parties were advised to contact the Magistrate Judges Court Clerk to schedule a further settlement conference. (kca) (Entered: 06/13/2019)

06/25/2019

180 STIPULATION for Order Plan Regarding Discovery of Electronically Stored Information filed by Federal Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 06/25/2019)

06/26/2019

181 ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION by Magistrate Judge Paul L. Abrams. SEE ORDER FOR DETAILS. 180 (ch) (Entered: 06/26/2019)

07/10/2019

182 NOTICE of Appearance filed by attorney Ernesto Molina on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Ernesto Molina added to party Alex Azar(pty:dft), Attorney Ernesto Molina added to party E. Scott Lloyd(pty:dft))(Molina, Ernesto) (Entered: 07/10/2019)

07/10/2019

183 MINUTES OF TELEPHONIC DISCOVERY HEARING held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss the status of discovery including issues surrounding certain of defendants' requests for documents. As to the issue discussed during the conference, counsel for defendants shall submit briefing containing their position directly to plaintiffs, and to chambers at the following email: pla_chambers@cacd.uscourts.gov. Once defendants' brief is received by chambers, plaintiffs' response shall be submitted no more than one week later. Defendants' reply shall be submitted no more than three days after plaintiffs' response is submitted. The Court will hold a further telephonic conference on Wednesday, August 28, 2019, at 2:00 p.m. to discuss the parties' continued progress in the discovery process. Counsel shall contact the courtroom clerk via email at christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: courtsmart. (ch) (Entered: 07/11/2019)

08/01/2019

184 MINUTE ORDER IN CHAMBERS by Magistrate Judge Paul L. Abrams. The Court GRANTS defendants' discovery requests, IN PART, and orders all named plaintiffs, NO LATER THAN AUGUST 12, 2019, to produce all documents in their possession, custody or control responsive to defendants' First Set of Requests for Production of Documents, Request Nos. 43, 44(1) (i.e., all documents reflecting communications between any named plaintiff and a past, current, or proposed sponsor regarding medical and/or mental health treatment within ORR care and custody), 46 (but excluding signed consent forms), 49, and 51 (but limited to documents related to school records from after ORR release). SEE ORDER FOR DETAILS. (ch) (Entered: 08/01/2019)

08/19/2019

185 MEDIATION REPORT Filed by Defendant Alex Azar: Mediation held on June 12, 2019. The parties are unable to reach an agreement at this time. Counsel: Please evaluate the effectiveness of the ADR Program by completing a survey on your mediation experience. To access the survey, click on the following link: MediationParticipantSurvey(Shieh, Woei-Tyng) (Entered: 08/19/2019)

08/20/2019

186 APPLICATION of Non-Resident Attorney Brenda L. Shum to Appear Pro Hac Vice on behalf of Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. 0973-24295452) filed by Plaintiff Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando

Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Certificate of Good Standing, # 2 Certificate of Good Standing, # 3 Proposed Order) (Welch, Leecia) (Entered: 08/20/2019)

08/21/2019

187 MINUTES OF IN CHAMBERS - ORDER RE DEFENDANT'S MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS by Judge Dolly M. Gee: Defendant E. Scott Lloyd, the former director of the Office of Refugee Resettlement filed a Motion to Dismiss for Lack of Personal Jurisdiction ("MTD") and a Motion for Judgment on the Pleadings ("MJP") 161 . The Court issues the following rulings: Lloyd's MTD is DENIED. Lloyd's MJP is GRANTED. All of the First Amended Complaint's claims against Lloyd in his individual capacity are DISMISSED with prejudice. Court Reporter: Not Reported. (gk) (Entered: 08/22/2019)

08/26/2019

189 MINUTE ORDER IN CHAMBERS by Magistrate Judge Sheri Pym: Order Setting Further Settlement Conference. On June 12, 2019, the court held a settlement conference in this matter, at which a settlement was not reached. The court now sets a further settlement conference for September 25, 2019 at 9:30 a.m. (SEE ORDER FOR DETAILS). (kca) (Entered: 08/27/2019)

08/27/2019

188 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Brenda L. Shum to Appear Pro Hac Vice on behalf of Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccom 186 . The following error(s) was/were found: Local Rule 832.1.3.4 Local counsel does not maintain an office within the District. (lt) (Entered: 08/27/2019)

08/28/2019

190 MINUTES OF TELEPHONIC DISCOVERY CONFERENCE held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss the status of discovery. The Court will hold a further telephonic conference on Wednesday, October 16, 2019, at 2:00 p.m. to discuss the parties' continued progress in the discovery process. Counsel shall contact the courtroom clerk via email at christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: courtsmart. (ch) (Entered: 08/28/2019)

08/30/2019

191 APPLICATION of Non-Resident Attorney Brenda Lanette Shum to Appear Pro Hac Vice on behalf of Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando

Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. 0973-24355919) filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order) (Tarneja, Rebecca) (Entered: 08/30/2019)

09/03/2019

192 ORDER by Judge Dolly M. Gee Granting Application of Non-Resident Attorney Brenda L. Shum to Appear Pro Hac Vice on behalf of Plaintiff Lucas R., by his next friend Madelyn R., et al., designating Rebecca L. Tarneja as local counsel 186 . (gk) (Entered: 09/04/2019)

09/24/2019

193 APPLICATION of Registered Legal Services Attorney Jonathan Mulligan to practice before the Court filed by Plaintiffs' counsel Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attorney Holly S Cooper added to party Benjamin F.(pty:pla), Attorney Holly S Cooper added to party Sirena P.(pty:pla)) (Cooper, Holly) (Entered: 09/24/2019)

09/25/2019

195 ORDER by Judge Dolly M. Gee Granting APPLICATION for Registered Legal Services Attorney Jonathan P. Mulligan to Practice Before the Court and participate in the above entitled action, and designating Holly S. Cooper as Supervising Attorney 193 . (gk) (Entered: 09/26/2019)

09/25/2019

196 MINUTES OF Settlement Conference held before Magistrate Judge Sheri Pym: Court and counsel engaged in settlement discussions off the record. The parties did not reach a settlement, but further settlement discussions are anticipated. The parties are to exchange proposals on a partial settlement and report back to the Magistrate Judge by October 11, 2019. (kca) (Entered: 10/03/2019)

09/26/2019

194 Notice of Appearance or Withdrawal of Counsel: for attorney Daisy Ocampo Felt counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Adding Daisy Ocampo Felt as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiff Daisy Ocampo Felt. (Attorney Daisy Ocampo Felt added to party Jaime D.(pty:pla), Attorney Daisy Ocampo Felt added to party Benjamin F.(pty:pla), Attorney Daisy Ocampo Felt added to party Gabriela N.(pty:pla), Attorney Daisy Ocampo Felt added

to party Sirena P.(pty:pla), Attorney Daisy Ocampo Felt added to party Lucas R.(pty:pla), Attorney Daisy Ocampo Felt added to party Miguel Angel S.(pty:pla), Attorney Daisy Ocampo Felt added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Daisy Ocampo Felt added to party Daniela Marisol T.(pty:pla), Attorney Daisy Ocampo Felt added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Felt, Daisy) (Entered: 09/26/2019)

10/14/2019

197 Joint STIPULATION for Order re Removal of Miguel Angel S. as Class Representative filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Cieslak, Jon) (Entered: 10/14/2019)

10/15/2019

198 ORDER RE STIPULATION TO REMOVE MIGUEL ANGEL S. AS CLASS REPRESENTATIVE by Judge Dolly M. Gee: The Court hereby APPROVES the Stipulation 197 and orders that: (1) Named plaintiff Miguel Angel S. (through his next friend Gerardo S.) shall be removed as a class representative of the step-up class, disability class, and drug administration class, and shall no longer serve as a class representative in this action; and (2) If the parties wish to have Plaintiff Miguel Angel S. dismissed as an individual plaintiff, they shall file a stipulation so specifying. (gk) (Entered: 10/15/2019)

10/16/2019

199 MINUTES OF (TELEPHONIC DISCOVERY CONFERENCE) held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss the status of discovery. The Court will hold a further telephonic conference on Tuesday, November 19, 2019, at 2:00 p.m. to discuss the parties' continued progress in the discovery process. Counsel shall contact the courtroom clerk via email at christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: CS 10/16/19. (sbou) (Entered: 10/16/2019)

10/23/2019

200 NOTICE of Appearance filed by attorney Russell J E Verby on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Russell J E Verby added to party Alex Azar(pty:dft), Attorney Russell J E Verby added to party E. Scott Lloyd(pty:dft))(Verby, Russell) (Entered: 10/23/2019)

10/29/2019

201 Notice of Appearance or Withdrawal of Counsel: for attorney Anthony John Messuri counsel for Defendant Alex Azar. Adding Anthony J. Messuri as counsel of record for Alex Azar, et al. for the reason indicated in the G-123 Notice. Filed by DEFENDANT AZAR, et al..

(Attorney Anthony John Messuri added to party Alex Azar(pty:dft))(Messuri, Anthony) (Entered: 10/29/2019)

11/05/2019

202 MINUTE ORDER IN CHAMBERS by Magistrate Judge Sheri Pym: Order Setting Further Settlement Conference. The court now sets a further settlement conference for December 11, 2019 at 9:30 a.m. (SEE ORDER FOR DETAILS). (kca) (Entered: 11/05/2019)

11/12/2019

203 Joint STIPULATION to Continue Pretrial and Trial Dates filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Cieslak, Jon) (Entered: 11/12/2019)

11/13/2019

204 ORDER APPROVING JOINT STIPULATION AND REQUEST RE SCHEDULE OF PRETRIAL AND TRIAL DATES by Judge Dolly M. Gee: The Court hereby APPROVES the Stipulation 203 and adopts the stipulated case schedule. Bench Trial set for 10/20/2020 09:30 AM before Judge Dolly M. Gee. Final Pretrial Conference set for 9/22/2020 02:00 PM before Judge Dolly M. Gee. See document for further details. (gk) (Entered: 11/14/2019)

11/19/2019

205 MINUTES OF (TELEPHONIC DISCOVERY CONFERENCE) held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss the status of discovery. The Court will hold a further telephonic conference on Wednesday, January 8, 2020, at 2:00 p.m. to discuss the parties' continued progress in the discovery process. Counsel shall contact the courtroom clerk via email at christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: CS 11/19/19. (sbou) (Entered: 11/20/2019)

12/11/2019

206 MINUTES OF Settlement Conference held before Magistrate Judge Sheri Pym: Court and counsel engaged in settlement discussions off the record. The parties did not reach a settlement, but further settlement discussions are anticipated. The court will hold follow-up telephonic conferences on December 18, 2019 at 11:30 a.m., and January 9, 2020 at 12:30 p.m. (kca) (Entered: 12/12/2019)

12/18/2019

207 MINUTES OF Telephone Conference held before Magistrate Judge Sheri Pym: The court and counsel conferred regarding settlement. The parties will continue with settlement discussions and will update the court at the follow-up telephonic conference previously scheduled for January 9, 2020 at 12:30 p.m. Court Recorder: XTR RECORDER. (kca) (Entered: 12/20/2019)

12/23/2019

208 Text Only Entry : The telephonic conference set for January 9, 2020 at 12:30 p.m. is continued to Wednesday, January 15, 2020 at 10:00 a.m. the Courtroom Deputy Clerk will provide call-in information. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (kca) TEXT ONLY ENTRY (Entered: 12/23/2019)

01/08/2020

209 NOTICE of Change of Attorney Business or Contact Information: for attorney Leecia Welch counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Changing Address to 1212 Broadway, Suite 600, Oakland, CA 94612. Filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Welch, Leecia) (Entered: 01/08/2020)

01/08/2020

210 NOTICE of Change of Attorney Business or Contact Information: for attorney Neha Desai counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Changing Address to 1212 Broadway, Suite 600, Oakland, CA 94612. Filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attorney Neha Desai added to party Benjamin F.(pty:pla), Attorney Neha Desai added to party Sirena P.(pty:pla))(Desai, Neha) (Entered: 01/08/2020)

01/08/2020

211 NOTICE of Change of Attorney Business or Contact Information: for attorney Poonam Juneja counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Changing Address to 1212 Broadway, Suite 600, Oakland, CA 94612. Filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attorney Poonam Juneja added to party Benjamin F.(pty:pla), Attorney Poonam Juneja added to party Sirena P.(pty:pla))(Juneja, Poonam) (Entered: 01/08/2020)

01/08/2020 212 NOTICE of Change of Attorney Business or Contact Information: for attorney Freya E K Pitts counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando

Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Changing Address to 1212 Broadway, Suite 600, Oakland, CA 94612. Filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Pitts, Freya) (Entered: 01/08/2020)

01/08/2020

213 MINUTES OF TELEPHONIC DISCOVERY CONFERENCE held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss the status of discovery. The Court will hold a further telephonic conference on Wednesday, March 4, 2020, at 2:00 p.m. to discuss the parties' continued progress in the discovery process. Counsel shall contact the courtroom clerk via email at christianna_howard@cacd.uscourts.gov to advise whether they will be participating in person or telephonically. If appearing telephonically, the courtroom clerk will provide call-in information. Court Recorder: courtsmart. (ch) (Entered: 01/08/2020)

01/15/2020

214 MINUTES OF Telephone Conference held before Magistrate Judge Sheri Pym: A Telephonic Conference in this matter was held on January 15, 2020. The court and counsel conferred regarding settlement. The parties will continue with settlement discussions and will update the court at a follow-up telephonic conference on February 5, 2020 at 12:15 p.m. Court Recorder: XTR RECORDER. (kca) (Entered: 01/15/2020)

02/05/2020

215 MINUTES OF Telephone Conference held before Magistrate Judge Sheri Pym: A Telephonic Conference in this matter was held on February 5, 2020. The court and counsel conferred regarding settlement. The parties settlement discussions are ongoing. The parties were advised to contact the Magistrate Judges Court Clerk if they believe a further telephone conference or settlement conference would facilitate settlement. Court Recorder: XTR RECORDER. (kca) (Entered: 02/05/2020)

02/21/2020

216 NOTICE of Appearance filed by attorney Michael C Heyse on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Michael C Heyse added to party Alex Azar(pty:dft), Attorney Michael C Heyse added to party E. Scott Lloyd(pty:dft))(Heyse, Michael) (Entered: 02/21/2020)

03/04/2020

217 MINUTES OF TELEPHONIC DISCOVERY CONFERENCE held before Magistrate Judge Paul L. Abrams. With respect to the scope of a named plaintiff deposition, in the event the parties are unable to reach a resolution, plaintiffs may submit a letter to the Court, not to exceed 3 pages in length, setting out their position NO LATER THAN MARCH

9, 2020. Defendants' response, not to exceed 3 pages in length, is due NO LATER THAN MARCH 12, 2020. Plaintiffs' reply, not to exceed 1 page in length, is due NO LATER THAN MARCH 13, 2020. Plaintiffs shall provide defendants with a declaration from the social worker setting forth the details concerning placement of the plaintiff in question. The Court will hold a furthertelephonic conference on Wednesday, April 29, 2020, at 2:00 p.m. to discuss the parties continued progress in the discovery process. SEE ORDER FOR DETAILS. Court Recorder: courtsmart. (ch) (Entered: 03/04/2020)

03/06/2020

218 NOTICE of Appearance filed by attorney Alexandra Rex Mayhugh on behalf of Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment (Attorney Alexandra Rex Mayhugh added to party Jaime D.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Benjamin F.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Gabriela N.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Sirena P.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Lucas R.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Miguel Angel S.(pty:pla), Attorney Alexandra Rex Mayhugh added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Daniela Marisol T.(pty:pla), Attorney Alexandra Rex Mayhugh added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Mayhugh, Alexandra) (Entered: 03/06/2020)

03/06/2020

219 Joint STIPULATION to Continue filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Mayhugh, Alexandra) (Entered: 03/06/2020)

03/06/2020

220 Joint STIPULATION for Discovery filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Mayhugh, Alexandra) (Entered: 03/06/2020)

03/10/2020

221 ORDER APPROVING JOINT STIPULATION AND REQUEST TO MODIFY SCHEDULE OF PRETRIAL AND TRIAL DATES by Judge Dolly M. Gee: The Court hereby APPROVES the Stipulation 219 and adopts the stipulated case schedule. Bench Trial set for 1/19/2021 09:30 AM before Judge Dolly M. Gee. Final Pretrial

Conference set for 12/22/2020 02:00 PM before Judge Dolly M. Gee. See document for further details. (gk) (Entered: 03/10/2020)

03/10/2020

222 ORDER APPROVING JOINT STIPULATION AND REQUEST REGARDING SCHEDULE OF PRETRIAL AND TRIAL DATES by Judge Dolly M. Gee: Pursuant to the parties' Stipulation 220 , see document as to what discovery shall/shall not apply to the 3/13/2020 deadline for non-expert discovery. (gk) (Entered: 03/10/2020)

03/19/2020

223 SEALED DOCUMENT UNDER SEALED DOCUMENT (es) Modified on 3/19/2020 (ch). Hard copies mailed to counsel of record. (Entered: 03/19/2020)

03/19/2020

224 Joint STIPULATION for Order email sealed court order to counsel filed by Defendants Alex Azar, E. Scott Lloyd(Director, Office of Refugee Resettlement of the U.S. Department of Health & Human Services). (Attachments: # 1 Proposed Order Proposed Order Approving Joint Stipulation Concerning Emailing Sealed Court Order)(Moss, Benjamin) (Entered: 03/19/2020)

03/20/2020

225 ORDER APPROVING JOINT STIPULATION CONCERNING EMAILING SEALED COURT ORDER 224 by Magistrate Judge Paul L. Abrams. (es) Modified on 3/23/2020 (ch). Document emailed to counsel of record on 3/20/2020. (Entered: 03/20/2020)

03/23/2020

226 Notice of Electronic Filing re Sealed Document 223 , Stipulation for Order, 224 , Order 225 e-mailed to Jon Cieslak bounced due to 5.1.0 Unknown address error. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (lmh) TEXT ONLY ENTRY (Entered: 03/23/2020)

03/25/2020

227 EX PARTE APPLICATION for Temporary Restraining Order as to Preliminary Injunction filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Carlos Holguin, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M PART 1, # 16 Exhibit M PART 2, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Proposed Order) (Welch, Leecia) (Entered: 03/25/2020)

03/25/2020

228 MINUTES OF IN CHAMBERS - ORDER SETTING VIDEOCONFERENCE by Judge Dolly M. Gee: The Court has reviewed and considered Plaintiffs' Ex Parte Application for a Temporary Restraining Order 227 . Defendants shall file their response by 3/27/2020 at 9:00 AM. The Court will conduct a videoconference on this matter on 3/27/2020 at 02:00 PM before Judge Dolly M. Gee. Counsel shall contact the courtroom deputy clerk at dmg_chambers@cacd.uscourts.gov forthwith to receive the videoconference link. Court Reporter: Not Reported. (gk) (Entered: 03/25/2020)

03/26/2020 229 NOTICE of Appearance filed by attorney Ernesto Molina on behalf of Defendants Alex Azar, E. Scott Lloyd (Molina, Ernesto) (Entered: 03/26/2020)

03/27/2020

230 OPPOSITION to EX PARTE APPLICATION for Temporary Restraining Order as to Preliminary Injunction 227 filed by Defendants Alex Azar, E. Scott Lloyd. (Attachments: # 1 Exhibit Ex. Q: Declaration of Jallyn Sualog, Deputy Director, ORR, # 2 Exhibit Ex. R: ORR March 2 Field Guidance, # 3 Exhibit Ex. S: ORR March 13 Field Guidance, # 4 Exhibit Ex. T: ORR March 13 Guidance on Capacity, # 5 Exhibit Ex. U: ORR March 19 Field Guidance, # 6 Exhibit Ex. V: ORR March 20 Field Guidance, # 7 Exhibit Ex. W: ORR March 20 Stop Placement, # 8 Exhibit Ex. X: ORR March 23 Field Guidance, # 9 Exhibit Ex. Y: NY Guidance, # 10 Exhibit Ex. Z: CA Guidance, # 11 Exhibit Ex. AA: Decl. of Dr. Amanda Cohn, Chief Medical Officer, National Center for Immunizations and Respiratory Diseases, Centers for Disease Control and Prevention)(Molina, Ernesto) (Entered: 03/27/2020)

03/27/2020

231 EX PARTE APPLICATION for Leave to file to File Supp. Decl. filed by Plaintiff Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Ex Parte Application set for hearing on 3/27/2020 at 02:00 PM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Summer Wynn, # 3 Exhibit A, # 4 Proposed Order) (Welch, Leecia) (Entered: 03/27/2020)

03/27/2020

232 MINUTES OF PLAINTIFFS' EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION 227 held before Judge Dolly M. Gee: The cause is called and counsel state their appearance via videoconference and telephone. The Court invites counsel to respond to the oral tentative ruling. Following oral argument, the Court

advises counsel that the ex parte application shall be taken under submission and a written order will issue. Court Reporter: Miriam Baird. (kti) (Entered: 03/28/2020)

03/28/2020

233 ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION (DKT. 227) 231 by Judge Dolly M. Gee: The Court has reviewed Plaintiffs' Ex Parte Application for Leave to File Supplemental Declaration in Support of Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction 227 . Good cause appearing, the Court hereby GRANTS the application and will take under submission the supplemental declaration attached to the Declaration of Summer J. Wynn as Exhibit A. IT IS SO ORDERED. (kti) (Entered: 03/28/2020)

03/31/2020

234 Notice of Appearance or Withdrawal of Counsel: for attorney Rebecca L Tarneja counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Jon F. Cieslak is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Rebecca Tarneja. (Tarneja, Rebecca) (Entered: 03/31/2020)

03/31/2020

235 Notice of Appearance or Withdrawal of Counsel: for attorney Rebecca L Tarneja counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Megan L. Donohue is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Rebecca Tarneja. (Tarneja, Rebecca) (Entered: 03/31/2020)

04/01/2020

236 TRANSCRIPT for proceedings held on 3 27 2020. Court Reporter/Electronic Court Recorder: Miriam Baird, phone number mvb11893@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 4/22/2020. Redacted Transcript Deadline set for 5/4/2020. Release of Transcript Restriction set for 6/30/2020. (Baird, Miriam) (Entered: 04/01/2020)

04/01/2020

237 NOTICE OF FILING TRANSCRIPT filed for proceedings 3 27 2020 re Transcript 236 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Baird, Miriam) TEXT ONLY ENTRY (Entered: 04/01/2020)

04/02/2020

238 MINUTES OF IN CHAMBERS - ORDER RE CLASS MEMBERS' EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION by Judge Dolly M. Gee: On 3/25/2020, in light of the Coronavirus Disease 2019 ("COVID-19") public health crisis, Plaintiffs filed an Ex Parte Application for a Temporary Restraining Order ("TRO") and an Order to Show Cause ("OSC") why a preliminary injunction should not issue, arguing that the members of the unfit custodian class should be immediately released unless Defendants can justify keeping them in ORR facilities 227 . The Court held a hearing on the TRO application in conjunction with the hearing on a TRO application filed in the related case of Flores v. Barr, No. 85-4544DMG (AGRx) (C.D. Cal.). On 3/28/2020, the Court granted in part the Flores Plaintiffs' ex parte application for a TRO ("the Flores TRO"). Having duly considered the parties written submissions and oral argument in light of the applicable legal standard for mandatory injunctive relief, and having issued the TRO in Flores that renders the most urgent portions of Plaintiffs' request for interim relief moot, the Court DENIES the Ex Parte Application and OSC re preliminary injunction. Court Reporter: Not Reported. (gk) (Entered: 04/02/2020)

04/03/2020

239 Joint STIPULATION for Discovery filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Mayhugh, Alexandra) (Entered: 04/03/2020)

04/06/2020

240 ORDER APPROVING JOINT STIPULATION AND REQUEST REGARDING NON-EXPERT DISCOVERY by Judge Dolly M. Gee: Upon Stipulation 239 , the Court modifies the non-expert discovery deadline. See document for details. (gk) (Entered: 04/07/2020)

04/27/2020

241 TEXT ONLY ENTRY (In Chambers) by Magistrate Judge Paul L. Abrams. Should all counsel agree that the telephonic conference set for Wednesday, April 29, 2020, at 2:00 p.m. Pacific time is not needed at this time, counsel should jointly notify courtroom deputy Christianna Howard of this fact by e-mail no later than noon on Tuesday, April 28, 2020. In the absence of such an e-mail, the conference will proceed as scheduled. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (san) (Entered: 04/27/2020)

04/27/2020

242 APPLICATION of Non-Resident Attorney Michael J. McMahon to Appear Pro Hac Vice on behalf of Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26233526) filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit /Certificate of Good Standing, # 2 Proposed Order) (Tarneja, Rebecca) (Entered: 04/27/2020)

04/28/2020

243 ORDER by Judge Dolly M. Gee: granting 242 Non-Resident Attorney Michael J. McMahon APPLICATION to Appear Pro Hac Vice on behalf of Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T. and Unaccompanied Central American Refugee Empowerment, designating Rebecca L. Tarneja as local counsel. (lom) (Entered: 04/28/2020)

04/29/2020

244 MINUTES OF Telephonic Discovery Conference held before Magistrate Judge Paul L. Abrams. The Court and counsel discuss the status of discovery. With respect to the potential discovery issue addressed by plaintiffs, plaintiffs may submit a letter to the Court, not to exceed 2 pages in length, setting out their position NO LATER THAN MAY 4, 2020. Defendants' response, not to exceed 2 pages in length, is due NO LATER THAN MAY 8, 2020. Plaintiffs' reply, not to exceed 1 page in length, is due NO LATER THAN MAY 12, 2020. The Court will advise counsel when the next telephonic conference will be held. Court Recorder: courtsmart. (ch) (Entered: 04/30/2020)

05/12/2020

245 Joint STIPULATION to Continue Initial Expert Disclosure and Report deadline from May 22, 2020 to June 19, 2020 filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Mayhugh, Alexandra) (Entered: 05/12/2020)

05/13/2020

246 MINUTE ORDER IN CHAMBERS by Magistrate Judge Paul L. Abrams. As directed (ECF No. 244), the parties have presented submissions to the Court's chambers pertaining to their dispute over whether defendants should be ordered to provide access to class member files under ORR policy. Plaintiffs' request for an order that

defendants produce the subject documents is DENIED. SEE ORDER FOR DETAILS. 244 (ch) (Entered: 05/13/2020)

05/14/2020

247 ORDER RE JOINT STIPULATION TO EXTEND DEADLINES FOR EXPERT DISCOVERY AND OUTSTANDING FACT DEPOSITIONS by Judge Dolly M. Gee: Upon Stipulation 245 , the deadline for Initial Expert Disclosure and Reports is extended until 6/19/2020, with the Court's remaining Schedule of Pretrial and Trial Dates (ECF No. 221) remaining unchanged. See document for further details. (gk) (Entered: 05/14/2020)

05/22/2020

248 Notice of Appearance or Withdrawal of Counsel: for attorney Marina C Stevenson counsel for Defendants Alex Azar, E. Scott Lloyd, E. Scott Lloyd. Marina C. Stevenson is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendants Marina C. Stevenson. (Stevenson, Marina) (Entered: 05/22/2020)

06/26/2020

249 Notice of Appearance or Withdrawal of Counsel: for attorney Mishan Raini Wroe counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Adding Mishan Wroe as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Lucas R., et al. (Attorney Mishan Raini Wroe added to party Jaime D.(pty:pla), Attorney Mishan Raini Wroe added to party Benjamin F.(pty:pla), Attorney Mishan Raini Wroe added to party Gabriela N.(pty:pla), Attorney Mishan Raini Wroe added to party Sirena P.(pty:pla), Attorney Mishan Raini Wroe added to party Lucas R.(pty:pla), Attorney Mishan Raini Wroe added to party Miguel Angel S.(pty:pla), Attorney Mishan Raini Wroe added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Mishan Raini Wroe added to party Daniela Marisol T.(pty:pla), Attorney Mishan Raini Wroe added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Wroe, Mishan) (Entered: 06/26/2020)

07/08/2020

250 Joint STIPULATION for Order appointing substitute next friend to Jaime D. filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Mayhugh, Alexandra) (Entered: 07/08/2020)

07/09/2020

251 ORDER APPROVING JOINT STIPULATION AND REQUEST RE SUBSTITUTE NEXT FRIEND by Judge Dolly M. Gee: Upon Stipulation 250 , IT IS HEREBY ORDERED that Reyna D. is

withdrawn as next friend to Jaime D. and Alfredo Santiago is appointed as substitute next friend to Jaime D. in her place. (gk) (Entered: 07/10/2020)

08/21/2020

252 Joint STIPULATION to Continue Schedule of Pretrial and Trial Dates filed by Plaintiff Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Mayhugh, Alexandra) (Entered: 08/21/2020)

08/24/2020

253 ORDER APPROVING JOINT STIPULATION AND REQUEST TO MODIFY SCHEDULE OF PRETRIAL AND TRIAL DATES by Judge Dolly M. Gee: Upon the parties' Sixth Joint Stipulation and Request Regarding Schedule of Pretrial and Trial Dates 252 , Bench Trial is continued to 3/30/2021 09:30 AM before Judge Dolly M. Gee. Final Pretrial Conference is continued to 3/2/2021 02:00 PM before Judge Dolly M. Gee. The parties shall appear for a Telephonic Status Conference on 9/4/2020 12:00 PM before Judge Dolly M. Gee, to provide the Court with a status update regarding their mediation efforts. See document for further details. (gk) (Entered: 08/24/2020)

08/25/2020

254 Notice of Appearance or Withdrawal of Counsel: for attorney Melissa Ann Adamson counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Adding Melissa Ann Adamson as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Lucas R., et al. (Attorney Melissa Ann Adamson added to party Jaime D.(pty:pla), Attorney Melissa Ann Adamson added to party Benjamin F.(pty:pla), Attorney Melissa Ann Adamson added to party Gabriela N.(pty:pla), Attorney Melissa Ann Adamson added to party Sirena P.(pty:pla), Attorney Melissa Ann Adamson added to party Lucas R.(pty:pla), Attorney Melissa Ann Adamson added to party Miguel Angel S.(pty:pla), Attorney Melissa Ann Adamson added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Melissa Ann Adamson added to party Daniela Marisol T.(pty:pla), Attorney Melissa Ann Adamson added to party Unaccompanied Central American Refugee Empowerment(pty:pla))(Adamson, Melissa) (Entered: 08/25/2020)

08/31/2020

255 (IN CHAMBERS) ORDER by Judge Dolly M. Gee. Counsel wishing to make an appearance for the telephonic status conference on September 4, 2020 at 12:00 p.m. shall contact the courtroom deputy clerk at dmg_chambers@cacd.uscourts.gov to receive the telephone bridge line. The deadline for associates of counsel and the public to

submit a request (https://www.cacd.uscourts.gov/hearing-accessrequest-form) for the telephone bridge line is by noon on September 3, 2020. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (kti) TEXT ONLY ENTRY (Entered: 08/31/2020)

09/01/2020

256 NOTICE of Appearance filed by attorney Nancy K Canter on behalf of Defendants Alex Azar, E. Scott Lloyd (Attorney Nancy K Canter added to party Alex Azar(pty:dft), Attorney Nancy K Canter added to party E. Scott Lloyd(pty:dft))(Canter, Nancy) (Entered: 09/01/2020)

09/02/2020

257 Notice of Appearance or Withdrawal of Counsel: for attorney Monica J Julian counsel for Plaintiff Lucas R.. Adding Monica J. Julian as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiff Lucas R.. (Attorney Monica J Julian added to party Lucas R.(pty:pla))(Julian, Monica) (Entered: 09/02/2020)

09/04/2020

258 MINUTES OF Telephonic Status Conference held before Judge Dolly M. Gee: The cause is called and counsel state their appearance. The parties inform the Court of the status of the action. A further joint status report is due by November 20, 2020. Court Reporter: Miriam Baird. (kti) (Entered: 09/04/2020)

09/18/2020

259 Joint STIPULATION for Order Modifying Briefing Schedule and Enlarging Page Limits for Motions for Summary Judgment or Partial Summary Judgment filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order)(Tarneja, Rebecca) (Entered: 09/18/2020)

09/22/2020

260 Notice of Appearance or Withdrawal of Counsel: for attorney Jayme B Staten counsel for Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Adding Jayme B. Staten as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Jayme B. Staten. (Attorney Jayme B Staten added to party Jaime D.(pty:pla), Attorney Jayme B Staten added to party Benjamin F.(pty:pla), Attorney Jayme B Staten added to party Gabriela N.(pty:pla), Attorney Jayme B Staten added to party Sirena P.(pty:pla), Attorney Jayme B Staten added to party Lucas R.(pty:pla), Attorney Jayme B Staten added to party Miguel Angel S.(pty:pla), Attorney Jayme B Staten added to party San Fernando Valley Refugee Children Center, Inc.(pty:pla), Attorney Jayme B Staten added to party Daniela Marisol T.(pty:pla), Attorney Jayme B Staten added to party

Unaccompanied Central American Refugee Empowerment(pty:pla))(Staten, Jayme) (Entered: 09/22/2020)

09/23/2020

261 ORDER APPROVING JOINT STIPULATION AND REQUEST TO MODIFY BRIEFING SCHEDULE AND ENLARGE PAGE LIMITS FOR MOTIONS FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY ADJUDICATION by Judge Dolly M. Gee: Upon Stipulation 259 , IT IS HEREBY ORDERED that motions for summary judgment or partial summary adjudication shall be filed no later than 10/2/2020, opposition briefs shall be filed no later than 11/6/2020, and reply briefs shall be filed no later than 11/20/2020; and FURTHER ORDERED that the page limit for all initial memoranda in support of the parties' motions for summary judgment or partial summary adjudication shall be 60 pages, the page limit for all opposition briefs shall be 60 pages, and the page limit for all reply briefs shall be 25 pages. (gk) (Entered: 09/23/2020)

10/02/2020

262 Joint Stipulation re Facts in Support of Motion and Cross-Motion for Summary Judgment filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment (Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

263 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Step-up, unfit-custodian, and legal-representation claims for relief filed by Defendants Alex Azar. Motion set for hearing on 12/11/2020 at 03:00 PM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum, # 2 UF and Conclusions of Law, # 3 Declaration, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit, # 43 Exhibit, # 44 Exhibit, # 45 Exhibit, # 46 Exhibit, # 47 Exhibit, # 48 Exhibit, # 49 Exhibit, # 50 Exhibit, # 51 Exhibit, # 52 Exhibit, # 53 Exhibit, # 54 Exhibit, # 55 Exhibit, # 56 Exhibit, # 57 Exhibit, # 58 Exhibit, # 59 Exhibit, # 60 Exhibit, # 61 Exhibit, # 62 Exhibit, # 63 Exhibit, # 64 Exhibit, # 65 Proposed Order) (Ross, Jonathan) (Entered: 10/02/2020)

10/02/2020 264 APPLICATION to file document in support of Motion for Summary Judgment under seal filed by Defendant Alex Azar. (Attachments:

# 1 Proposed Order, # 2 Exhibit, # 3 SEALED ATTACHMENT Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Canter, Nancy) [SEALED ATTACHMENT 3 PER ORDER ON 10/5/2020, SEE DOCUMENT NO. 274] Modified on 10/6/2020 (gk). (Entered: 10/02/2020)

10/02/2020

265 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document in support of Motion for Summary Judgment under seal 264 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Unredacted Document, # 4 Unredacted Document, # 5 Unredacted Document, # 6 Unredacted Document, # 7 Unredacted Document, # 8 Unredacted Document, # 9 Unredacted Document, # 10 Unredacted Document, # 11 Unredacted Document, # 12 Unredacted Document, # 13 Unredacted Document, # 14 Unredacted Document, # 15 Unredacted Document, # 16 Unredacted Document)(Canter, Nancy) (Entered: 10/02/2020)

10/02/2020

266 APPLICATION to file document re Portions of Statement of Uncontroverted Facts and Conclusions of Law and Exhibits in Support of Plaintiffs' Motion for Partial Summary Judgment under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order, # 2 Proof of SErvice, # 3 Redacted Document Statement of Uncontroverted Facts ISO MSJ, # 4 Redacted Document Ex. 15, # 5 Redacted Document Ex. 21, # 6 Redacted Document Ex. 23, # 7 Redacted Document Ex. 28, # 8 Redacted Document Ex. 33, # 9 Redacted Document Ex. 40, # 10 Redacted Document Ex. 41, # 11 Redacted Document Ex. 42, # 12 Redacted Document Ex. 43, # 13 Redacted Document Ex. 44, # 14 Redacted Document Ex. 45, # 15 Redacted Document Ex. 46, # 16 Redacted Document Ex. 58, # 17 Redacted Document Ex. 59, # 18 Redacted Document Ex. 60, # 19 Redacted Document Ex. 61, # 20 Redacted Document Ex. 62, # 21 Redacted Document Ex. 63, # 22 Redacted Document Ex. 64, # 23 Redacted Document Ex. 65, # 24 Redacted Document Ex. 66, # 25 Redacted Document Ex. 67, # 26 Redacted Document Ex. 68, # 27 Redacted Document Ex. 69, # 28 Redacted Document Ex. 70, # 29 Redacted Document Ex. 71, # 30 Redacted Document Ex. 72, # 31 Redacted Document Ex. 73, # 32 Redacted Document Ex. 74, # 33 Redacted Document Ex. 75, # 34 Redacted Document Ex. 76, # 35 Redacted Document Ex. 77, # 36 Redacted Document Ex. 78, # 37 Redacted Document Ex. 79, # 38 Redacted Document Ex. 80, # 39 Redacted Document Ex. 81, # 40 Redacted Document Ex. 82, # 41 Redacted Document Ex. 93, # 42 Redacted Document Ex. 94, # 43 Redacted Document Ex. 95,

# 44 Redacted Document Ex. 96, # 45 Redacted Document Ex. 97, # 46 Redacted Document Ex. 98, # 47 Redacted Document Ex. 137, # 48 Redacted Document Ex. 138, # 49 Redacted Document Ex. 139)(Attorney Summer J Wynn added to party Benjamin F.(pty:pla), Attorney Summer J Wynn added to party Sirena P.(pty:pla))(Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

267 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document re Portions of Statement of Uncontroverted Facts and Conclusions of Law and Exhibits in Support of Plaintiffs' Motion for Partial Summary Judgment under seal 266 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document Statement of Uncontroverted Facts ISO MSJ, # 2 Unredacted Document Ex. 15, # 3 Unredacted Document Ex. 21, # 4 Unredacted Document Ex. 23, # 5 Unredacted Document Ex. 28, # 6 Unredacted Document Ex. 33, # 7 Unredacted Document Ex. 40, # 8 Unredacted Document Ex. 41, # 9 Unredacted Document Ex. 42, # 10 Unredacted Document Ex. 43, # 11 Unredacted Document Ex. 44, # 12 Unredacted Document Ex. 45, # 13 Unredacted Document Ex. 46, # 14 Ex. 47 (entirely under seal), # 15 Ex. 48 (entirely under seal), # 16 Ex. 49 (entirely under seal), # 17 Ex. 50 (entirely under seal), # 18 Unredacted Document Ex. 58, # 19 Unredacted Document Ex. 59, # 20 Unredacted Document Ex. 60, # 21 Unredacted Document Ex. 61, # 22 Unredacted Document Ex. 62, # 23 Unredacted Document Ex. 63, # 24 Unredacted Document Ex. 64, # 25 Unredacted Document Ex. 65, # 26 Unredacted Document Ex. 66, # 27 Unredacted Document Ex. 67, # 28 Unredacted Document Ex. 68, # 29 Unredacted Document Ex. 69, # 30 Unredacted Document Ex. 70, # 31 Unredacted Document Ex. 71, # 32 Unredacted Document Ex. 72, # 33 Unredacted Document Ex. 73, # 34 Unredacted Document Ex. 74, # 35 Unredacted Document Ex. 75, # 36 Unredacted Document Ex. 76, # 37 Unredacted Document Ex. 77, # 38 Unredacted Document Ex. 78, # 39 Unredacted Document Ex. 79, # 40 Unredacted Document Ex. 80, # 41 Unredacted Document Ex. 81, # 42 Unredacted Document Ex. 82)(Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

268 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document re Portions of Statement of Uncontroverted Facts and Conclusions of Law and Exhibits in Support of Plaintiffs' Motion for Partial Summary Judgment under seal 266 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document Ex. 93, # 2 Unredacted

Document Ex. 94, # 3 Unredacted Document Ex. 95, # 4 Unredacted Document Ex. 96, # 5 Unredacted Document Ex. 97, # 6 Unredacted Document Ex. 98, # 7 Ex. 99 (entirely under seal), # 8 Ex. 100 (entirely under seal), # 9 Ex. 101 (entirely under seal), # 10 Ex. 102 (entirely under seal), # 11 Ex. 103 (entirely under seal), # 12 Ex. 104 (entirely under seal), # 13 Ex. 105 (entirely under seal), # 14 Ex. 106 (entirely under seal), # 15 Ex. 107 (entirely under seal), # 16 Ex. 108 (entirely under seal), # 17 Ex. 109 (entirely under seal), # 18 Ex. 110 (entirely under seal), # 19 Ex. 111 (entirely under seal), # 20 Ex. 112 (entirely under seal), # 21 Ex. 113 (entirely under seal), # 22 Ex. 114 (entirely under seal), # 23 Ex. 115 (entirely under seal), # 24 Ex. 116 (entirely under seal), # 25 Ex. 117 (entirely under seal), # 26 Ex. 118 (entirely under seal), # 27 Ex. 119 (entirely under seal), # 28 Ex. 120 (entirely under seal), # 29 Ex. 121 (entirely under seal), # 30 Ex. 122 (entirely under seal), # 31 Ex. 123 (entirely under seal), # 32 Ex. 124 (entirely under seal), # 33 Ex. 125 (entirely under seal), # 34 Ex. 126 (entirely under seal), # 35 Ex. 127 (entirely under seal), # 36 Ex. 128 (entirely under seal), # 37 Ex. 129 (entirely under seal), # 38 Ex. 130 (entirely under seal), # 39 Unredacted Document Ex. 137, # 40 Unredacted Document Ex. 138, # 41 Unredacted Document Ex. 139, # 42 Ex. 140 (entirely under seal), # 43 Ex. 141 (entirely under seal), # 44 Ex. 142 (entirely under seal), # 45 Ex. 143 (entirely under seal))(Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

269 NOTICE OF MOTION AND MOTION for Partial Summary Judgment filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Motion set for hearing on 12/11/2020 at 03:00 PM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum, # 2 Statement of Uncontroverted Facts and Conclusions of Law, # 3 Proposed Order) (Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

270 NOTICE OF ERRATA filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. correcting NOTICE OF MOTION AND MOTION for Partial Summary Judgment 269 (Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

271 NOTICE OF MOTION AND MOTION for Partial Summary Judgment filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. Motion set for hearing on 12/11/2020 at 03:00 PM before Judge Dolly M. Gee. (Attachments: # 1 Memorandum,

# 2 Statement of Uncontroverted Facts and Conclusions of Law, # 3 Proposed Order) (Wynn, Summer) (Entered: 10/02/2020)

10/02/2020

272 DECLARATION of Alexandra R. Mayhugh in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment 271 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exs. 1-3, # 2 Exs. 4-39, # 3 Exs. 4082, # 4 Exs. 83-144)(Wynn, Summer) (Entered: 10/02/2020)

10/04/2020 273 NOTICE OF ERRATA filed by Defendant Alex Azar. correcting Sealed Declaration in SupportDeclaration,, 265 (Canter, Nancy) (Entered: 10/04/2020)

10/05/2020

274 ORDER ON DEFENDANTS' APPLICATION TO SEAL by Judge Dolly M. Gee: Upon Defendants' Application for Leave to File Under Seal Documents Submitted in Support of Motion for Summary Judgment 264 , the Court hereby ORDERS certain portions of Exhibits 41, 44, 47, 50, 52, 55, 58, and Exhibits 43, 46, 49, 51, 54, 56 and 59 be filed under seal. The Court does not find good reason at this time to redact portions of Exhibit 35 and 36. In order to protect minors' sensitive medical information contained in Addendum 6 of Exhibit 35, the Court sua sponte SEALS Doc. No. 264-3 and ORDERS Defendants to file a new application to seal Exhibits 35 and 36 in accordance with Local Rule 79-5.2.2 by 10/8/2020 that addresses the concerns described in this Order. Defendants may propose different redactions and/or explain the necessity for and propriety of the already-proposed redactions. Defendants need not re-file the sealed, unredacted versions of Exhibits 35 and 36 proposed to be sealed. Defendants shall file forthwith the sealed, unredacted versions of Exhibits 41, 44, 47, 50, 52, 55, 58, 43, 46, 49, 51, 54, 56, and 59 in accordance with Local Rule 795.2.2(c). See document for specifics. (gk) (Entered: 10/06/2020)

10/05/2020

275 ORDER RE PLAINTIFFS' APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF THEIR STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW AND EXHIBITS IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT by Judge Dolly M. Gee: Upon Plaintiffs' Application for Leave to File Under Seal Portions of Their Statement of Uncontroverted Facts and Conclusions of Law and Exhibits in Support of Their Motion for Partial Summary Judgment 266 , the Court GRANTS Plaintiffs' application to file entirely under seal Exhibits 4750 and Exhibits 99-143 and to file in redacted and unredacted forms the exhibits for which the parties have proposed redactions. Plaintiff shall

file the sealed documents on the docket in accordance with Local Rule 79-5.2.2(c) forthwith. (gk) (Entered: 10/06/2020)

10/06/2020

276 SEALED DOCUMENT DX-41, 44, 47, 50, 52, 55, 58, 43, 46, 49, 51, 54, 56, 59 re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Step-up, unfit-custodian, and legalrepresentation claims for relief 263 , Order on Motion for Leave to File Document Under Seal,,,, 274 filed by Defendant Alex Azar. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Canter, Nancy) (Entered: 10/06/2020)

10/07/2020

277 SEALED DOCUMENT re NOTICE OF MOTION AND MOTION for Partial Summary Judgment 269 , Order on Motion for Leave to File Document Under Seal,,, 275 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Ex. 15, # 2 Ex. 21, # 3 Ex. 23, # 4 Ex. 28, # 5 Ex. 33, # 6 Ex. 40, # 7 Ex. 41, # 8 Ex. 42, # 9 Ex. 43, # 10 Ex. 44, # 11 Ex. 45, # 12 Ex. 46, # 13 Ex. 47, # 14 Ex. 48, # 15 Ex. 49, # 16 Ex. 50, # 17 Ex. 58, # 18 Ex. 59, # 19 Ex. 60, # 20 Ex. 61, # 21 Ex. 62, # 22 Ex. 63, # 23 Ex. 64, # 24 Ex. 65, # 25 Ex. 66, # 26 Ex. 67, # 27 Ex. 68, # 28 Ex. 69, # 29 Ex. 70, # 30 Ex. 71, # 31 Ex. 72, # 32 Ex. 73, # 33 Ex. 74, # 34 Ex. 75, # 35 Ex. 76, # 36 Ex. 77, # 37 Ex. 78, # 38 Ex. 79, # 39 Ex. 80, # 40 Ex. 81, # 41 Ex. 82, # 42 Ex. 93, # 43 Ex. 94, # 44 Ex. 95, # 45 Ex. 96, # 46 Ex. 97, # 47 Ex. 98, # 48 Ex. 99, # 49 Ex. 100, # 50 Ex. 101, # 51 Ex. 102, # 52 Ex. 103, # 53 Ex. 104, # 54 Ex. 105, # 55 Ex. 106, # 56 Ex. 107, # 57 Ex. 108, # 58 Ex. 109, # 59 Ex. 110, # 60 Ex. 111, # 61 Ex. 112, # 62 Ex. 113, # 63 Ex. 114, # 64 Ex. 115, # 65 Ex. 116, # 66 Ex. 117, # 67 Ex. 118, # 68 Ex. 119, # 69 Ex. 120, # 70 Ex. 121, # 71 Ex. 122, # 72 Ex. 123, # 73 Ex. 124, # 74 Ex. 125, # 75 Ex. 126, # 76 Ex. 127, # 77 Ex. 128, # 78 Ex. 129, # 79 Ex. 130, # 80 Ex. 137, # 81 Ex. 138, # 82 Ex. 139, # 83 Ex. 140, # 84 Ex. 141, # 85 Ex. 142, # 86 Ex. 143)(Wynn, Summer) (Entered: 10/07/2020)

10/08/2020

278 APPLICATION to file document Exhibits 35 and 36 to Defendants' Motion for Summary Judgment under seal filed by Defendant Alex Azar. (Attachments: # 1 Redacted Document, # 2 Redacted Document, # 3 Proposed Order)(Canter, Nancy) (Entered: 10/08/2020)

10/08/2020 279 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibits 35 and 36 to Defendants' Motion for Summary Judgment under seal 278 filed by Defendant Alex Azar. (Attachments:

# 1 Unredacted Document, # 2 Unredacted Document, # 3 Proof of Service)(Canter, Nancy) (Entered: 10/08/2020)

10/09/2020

280 PROOF OF SERVICE filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, re Sealed Document,,,,,, 277 served on October 8, 2020. (Wynn, Summer) (Entered: 10/09/2020)

10/13/2020

281 ORDER ON APPLICATION TO SEAL by Judge Dolly M. Gee: Upon Defendants' Application for Leave to File Under Seal Documents Submitted in Support of Motion for Summary Judgment 278 , the Court hereby ORDERS the following documents to be filed under seal: Exhibit 35, the Expert Report of Dr. Roy Lubit (portions) and Exhibit 36, the Expert Rebuttal Report of Dr. Roy Lubit (portions). Defendants shall file forthwith the sealed, unredacted versions of Exhibits 35 and 36 in accordance with Local Rule 79-5.2.2(c). (gk) (Entered: 10/13/2020)

10/13/2020

282 SEALED DOCUMENT Defendants' Exhibits 35 and 36 re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Step-up, unfit-custodian, and legal-representation claims for relief 263 , Order on Motion for Leave to File Document Under Seal,, 281 filed by Defendant Alex Azar. (Attachments: # 1 Exhibit, # 2 Declaration, # 3 Proof of Service)(Canter, Nancy) (Entered: 10/13/2020)

11/06/2020

283 OPPOSITION to NOTICE OF MOTION AND MOTION for Partial Summary Judgment 271 filed by Defendant Alex Azar. (Attachments: # 1 Response to Plaintiff's Statement Uncontroverted Facts, # 2 Statement of Evidentiary Objections, # 3 Declaration, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Certificate of Service)(Ross, Jonathan) (Entered: 11/06/2020)

11/06/2020

284 APPLICATION to file document Exhibits to Opposition to Plaintiffs' Partial MSJ under seal filed by Defendant Alex Azar. (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Exhibit)(Canter, Nancy) (Entered: 11/06/2020)

11/06/2020

285 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibits to Opposition to Plaintiffs' Partial MSJ under seal 284 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Unredacted Document,

# 4 Unredacted Document, # 5 Proof of Service)(Canter, Nancy) (Entered: 11/06/2020)

11/06/2020

286 APPLICATION to file document (Portions of Plaintiffs' Exhibits in Opposition to Defendants' Motion for Summary Judgment) under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order, # 2 Redacted Document Ex. 149, # 3 Redacted Document Ex. 156, # 4 Redacted Document Ex. 162, # 5 Redacted Document Ex. 169, # 6 Redacted Document Ex. 170, # 7 Redacted Document Ex. 171, # 8 Redacted Document Ex. 173, # 9 Redacted Document Ex. 183, # 10 Redacted Document Ex. 184, # 11 Redacted Document Ex. 190, # 12 Redacted Document Ex. 191)(Wynn, Summer) (Entered: 11/06/2020)

11/06/2020

287 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Portions of Plaintiffs' Exhibits in Opposition to Defendants' Motion for Summary Judgment) under seal 286 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document Ex. 149, # 2 Unredacted Document Ex. 156, # 3 Unredacted Document Ex. 162, # 4 Unredacted Document Ex. 169, # 5 Unredacted Document Ex. 170, # 6 Unredacted Document Ex. 171, # 7 Ex. 172, # 8 Unredacted Document Ex. 173, # 9 Ex. 174, # 10 Unredacted Document Ex. 183, # 11 Unredacted Document Ex. 184, # 12 Unredacted Document Ex. 190, # 13 Unredacted Document Ex. 191, # 14 Ex. 192, # 15 Ex. 193, # 16 Ex. 194, # 17 Ex. 195, # 18 Ex. 196, # 19 Ex. 197)(Wynn, Summer) (Entered: 11/06/2020)

11/06/2020

288 ORDER ON APPLICATION TO SEAL by Judge Dolly M. Gee: The Court hereby GRANTS Defendants' Application for Leave to File Under Seal Documents Submitted in Support of Opposition to Plaintiffs' Motion for Partial Summary Judgment 284 and ORDERS the following documents to be filed under seal forthwith, under Local Rule 79-5.2.2(c): (1) Defendants' Statement of Genuine Disputes of Material Fact and Additional Material Facts (portions); (2) Defendants' Exhibit DX-62, Expert Report of Dr. Donna Londino (portions); and (3) Defendants' Exhibits DX-83 and DX-84, case file excerpts of minor children (entirety). (gk) (Entered: 11/06/2020)

11/06/2020 289 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Step-up, unfit-custodian, and legal-representation claims for relief 263 filed by Plaintiffs Jaime

D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Statement of Genuine Dispute of Material Fact, # 2 Objections to Defendants' Evidence, # 3 Declaration of A. Mayhugh in Support of Opposition to Motion for Summary Judgment, # 4 Exhibit 145-170, # 5 Exhibit 170-184, # 6 Exhibit 185-198)(Wynn, Summer) (Entered: 11/06/2020)

11/06/2020

290 SEALED DOCUMENT Defendants' Sealed Documents in Support of Opposition to Plaintiffs' Partial Motion for Summary Judgment re Order on Motion for Leave to File Document Under Seal,, 288 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Unredacted Document)(Canter, Nancy) (Entered: 11/06/2020)

11/06/2020

291 PROOF OF SERVICE filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, re Sealed Declaration in SupportDeclaration,,, 287 served on November 6, 2020. (Wynn, Summer) (Entered: 11/06/2020)

11/09/2020

292 Notice of Appearance or Withdrawal of Counsel: for attorney Christopher Bates counsel for Defendants Alex Azar, E. Scott Lloyd, E. Scott Lloyd. Filed by Defendants Alex Azar, E. Scott Lloyd. (Attorney Christopher Bates added to party Alex Azar(pty:dft), Attorney Christopher Bates added to party E. Scott Lloyd(pty:dft), Attorney Christopher Bates added to party E. Scott Lloyd(pty:dft))(Bates, Christopher) (Entered: 11/09/2020)

11/09/2020

293 ORDER RE PLAINTIFFS' APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF THEIR EXHIBITS IN SUPPORT OF THEIR OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT by Judge Dolly M. Gee: The Court GRANTS Plaintiffs' Application for Leave to File Under Seal Portions of Their Exhibits in Support of Their Opposition to Defendants' Motion for Summary Judgment 286 and ORDERS the documents listed in this order to be filed under seal forthwith, under Local Rule 79-5.2.2(c). See document for further details. (gk) (Entered: 11/09/2020)

11/10/2020

294 SEALED DOCUMENT Filed Pursuant to Court Order Dated 11/9/20 re MEMORANDUM in Opposition to Motion,, 289 , Order on Motion for Leave to File Document Under Seal,, 293 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela

Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Ex. 149 ISO Plaintiffs' Opp. to Defendants' MSJ, # 2 Ex. 156 ISO Plaintiffs' Opp. to Defendants' MSJ, # 3 Ex. 162 ISO Plaintiffs' Opp. to Defendants' MSJ, # 4 Ex. 169 ISO Plaintiffs' Opp. to Defendants' MSJ, # 5 Ex. 170 ISO Plaintiffs' Opp. to Defendants' MSJ, # 6 Ex. 171 ISO Plaintiffs' Opp. to Defendants' MSJ, # 7 Ex. 172 ISO Plaintiffs' Opp. to Defendants' MSJ, # 8 Ex. 173 ISO Plaintiffs' Opp. to Defendants' MSJ, # 9 Ex. 182 ISO Plaintiffs' Opp. to Defendants' MSJ, # 10 Ex. 183 ISO Plaintiffs' Opp. to Defendants' MSJ, # 11 Ex. 184 ISO Plaintiffs' Opp. to Defendants' MSJ, # 12 Ex. 190 ISO Plaintiffs' Opp. to Defendants' MSJ, # 13 Ex. 191 ISO Plaintiffs' Opp. to Defendants' MSJ, # 14 Ex. 192 ISO Plaintiffs' Opp. to Defendants' MSJ, # 15 Ex. 193 ISO Plaintiffs' Opp. to Defendants' MSJ, # 16 Ex. 194 ISO Plaintiffs' Opp. to Defendants' MSJ, # 17 Ex. 195 ISO Plaintiffs' Opp. to Defendants' MSJ, # 18 Ex. 196 ISO Plaintiffs' Opp. to Defendants' MSJ, # 19 Ex. 197 ISO Plaintiffs' Opp. to Defendants' MSJ)(Wynn, Summer) (Entered: 11/10/2020)

11/20/2020

295 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Step-up, unfit-custodian, and legalrepresentation claims for relief 263 filed by Defendant Alex Azar. (Attachments: # 1 Defendants Reply in Support of Defendants Statement of Uncontroverted Facts and Conclusions of Law, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Ross, Jonathan) (Entered: 11/20/2020)

11/20/2020

296 APPLICATION to file document in Support of Defendants' Reply in Support of Motion for Partial Summary Judgment under seal filed by Defendant Alex Azar. (Attachments: # 1 Redacted Document, # 2 Redacted Document, # 3 Proposed Order)(Canter, Nancy) (Entered: 11/20/2020)

11/20/2020

297 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document in Support of Defendants' Reply in Support of Motion for Partial Summary Judgment under seal 296 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Unredacted Document, # 4 proof of service)(Canter, Nancy) (Entered: 11/20/2020)

11/20/2020

298 APPLICATION to file document (Portions of Plaintiffs' Response to Statement of Genuine Disputes of Material Facts and Responses to Objections to Evidence and Objections to Opposition) under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee

Empowerment. (Attachments: # 1 Proposed Order, # 2 Redacted Document Plaintiffs' Response to Statement of Genuine Disputes of Material Fact, # 3 Redacted Document Plaintiffs' Responses to Objections to Evidence and Objections to Opposition)(Wynn, Summer) (Entered: 11/20/2020)

11/20/2020

299 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Portions of Plaintiffs' Response to Statement of Genuine Disputes of Material Facts and Responses to Objections to Evidence and Objections to Opposition) under seal 298 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document Plaintiffs' Response to Statement of Genuine Disputes of Material Fact, # 2 Unredacted Document Plaintiffs' Responses to Objections to Evidence and Objections to Opposition)(Wynn, Summer) (Entered: 11/20/2020)

11/20/2020

300 REPLY in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment 269 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Plaintiffs' Response to Statement of Genuine Disputes of Material Fact, # 2 Plaintiffs' Responses to Objections to Evidence and Objections to Opposition, # 3 Declaration of A. Mayhugh in Support, # 4 Exhibit 199-203 to Declaration of A. Mayhugh)(Wynn, Summer) (Entered: 11/20/2020)

11/20/2020

301 STATUS REPORT filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Wynn, Summer) (Entered: 11/20/2020)

11/23/2020

302 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Reply (Motion related),, 295 . The following error(s) was/were found: Local Rule 11-6 Memorandum/brief exceeds 25 pages. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (gk) (Entered: 11/23/2020)

11/23/2020 303 EX PARTE APPLICATION for Leave to file conforming reply brief filed by Defendants Alex Azar. (Attachments: # 1 Declaration, # 2 Proposed Order) (Ross, Jonathan) (Entered: 11/23/2020)

11/23/2020

304 REPLY in support of Defendants' NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Step-up, unfit-custodian, and legal-representation claims for relief 263 filed by Defendant Alex Azar. (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Ross, Jonathan) (Entered: 11/23/2020)

11/23/2020

305 ORDER ON APPLICATION TO SEAL by Judge Dolly M. Gee: The Court hereby GRANTS Defendants' Application for Leave to File Under Seal Documents Submitted in Support of Defendants' Reply in Support of Defendants' Motion for Summary Judgment 296 and ORDERS Defendants to file the following documents under seal forthwith, under Local Rule 79-5.2.2(c): (1) Defendants' Exhibit DX94, Yolo County Probation Department Budget Narrative for 24 Secure Beds (YOLO-00466 through 468) (portions); (2) Defendants' Exhibit DX-90, Fink Deposition Transcript Page (portions); and (3) Defendants' Exhibit DX-93, case file excerpts of minor children (entirety). (gk) (Entered: 11/23/2020)

11/23/2020

306 ORDER RE PLAINTIFFS' APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF THEIR RESPONSE TO DEFENDANTS' STATEMENT OF GENUINE DISPUTES OF MATERIAL FACT AND RESPONSES TO OBJECTIONS TO EVIDENCE AND OBJECTIONS TO OPPOSITION by Judge Dolly M. Gee: The Court GRANTS Plaintiffs' Application for Leave to File Under Seal Portions of their Response to Defendants' Statement of Genuine Disputes of Material Fact and Responses to Objections to Evidence and Objections to Opposition 298 and ORDERS Plaintiffs to e-file the unredacted versions of the documents in question [Doc. Nos. 299-1, 299-2] under seal consistent with this Order within three court days of this Order. (gk) (Entered: 11/23/2020)

11/24/2020

307 SEALED DOCUMENT re Reply (Motion related),, 300 , Order on Motion for Leave to File Document Under Seal,, 306 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Unredacted Document Plaintiffs' Responses to Objections to Evidence and Objections to Opposition)(Wynn, Summer) (Entered: 11/24/2020)

11/24/2020

308 PROOF OF SERVICE filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, re Sealed Document, 307 served on November 24, 2020. (Wynn, Summer) (Entered: 11/24/2020)

11/24/2020

310 ORDER ON DEFENDANTS' EX PARTE APPLICATION FOR LEAVE TO FILE CONFORMING REPLY BRIEF by Judge Dolly M. Gee: The Court hereby GRANTS Defendants' Ex Parte Application for Leave to File Conforming Reply Brief 303 and ORDERS that: (1) Defendants' 11/20/2020 reply brief (Doc. No. 295) shall be struck; (2) Defendants' 11/23/2020 conforming reply brief (Doc. No. 304) shall be accepted for filing. (gk) (Entered: 11/25/2020)

11/25/2020

309 SEALED DOCUMENT in support re Reply (Motion related),, 295 , Order on Motion for Leave to File Document Under Seal,, 305 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Proof of Service)(Canter, Nancy) (Entered: 11/25/2020)

12/08/2020

311 MINUTE ORDER IN CHAMBERS by Magistrate Judge Sheri Pym: Order Setting Further Settlement Conference. The court now sets a further settlement conference for December 22, 2020 at 9:30 a.m. (SEE ORDER FOR DETAILS). (kca) (Entered: 12/08/2020)

12/08/2020

312 MINUTES OF IN CHAMBERS - ORDER CONTINUING HEARING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT by Judge Dolly M. Gee: The Court sua sponte CONTINUES the hearing on the pending cross-motions summary judgment 263 , 271 to 12/22/2020 at 11:00 AM before Judge Dolly M. Gee. Court Reporter: Not Reported. (gk) (Entered: 12/08/2020)

12/14/2020

313 STATUS REPORT filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Wynn, Summer) (Entered: 12/14/2020)

12/14/2020

314 MINUTE ORDER IN CHAMBERS by Magistrate Judge Sheri Pym: Order Continuing Further Settlement Conference Date. The further settlement conference set for December 22, 2020 is hereby continued to January 11, 2021 at 9:30 a.m. All other terms of the courts December 8 order setting this further settlement (kca) (Entered: 12/14/2020)

12/18/2020 315 (IN CHAMBERS) ORDER by Judge Dolly M. Gee. The motion hearing on December 22, 2020 at 11:00 a.m. will take place by Zoom

Videoconference and the clerk will email the video link to the parties. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (kti) TEXT ONLY ENTRY (Entered: 12/18/2020)

12/22/2020

316 TRANSCRIPT ORDER as to Defendants Alex Azar for Court Reporter. Court will contact Jonathan K Ross at jonathan.k.ross@usdoj.gov with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Ross, Jonathan) (Entered: 12/22/2020)

12/22/2020

319 MINUTES OF Motion Hearing held before Judge Dolly M. Gee RE: Defendants' Motion for Summary Judgment Pursuant to FRCP 56 263 ; Plaintiffs' Motion for Partial Summary Judgment 271 . The Court invites counsel to respond to the oral tentative ruling. Following oral argument, the Court advises counsel that the motions shall be taken under submission and a written order will issue. The parties shall meet and confer and submit a joint status report by 2/1/2021. The Court VACATES the amended schedule of pretrial and trial (Doc. No. 253). New dates and deadlines shall be reset after the parties meet and confer and submit their joint status report re new dates. Court Reporter: Miriam Baird. (gk) (Entered: 12/23/2020)

12/22/2020

320 MINUTES OF IN CHAMBERS - ORDER RE SUPPLEMENTAL SUBMISSIONS, PRETRIAL DATES AND DEADLINES, AND JOINT STATUS REPORT by Judge Dolly M. Gee: On 12/22/2020, the Court held a hearing on the parties' cross-Motions for Summary Judgment and issued its tentative oral ruling regarding Plaintiffs' stepup class, unfit custodian class, and legal representation class claims 263 , 271 . In light of the matters discussed at the hearing, the Court hereby ORDERS: (1) By 1/5/2021, the parties shall file a joint supplemental submission with the current version of the form Notice of Placement ("NOP") given to minors stepped-up to more restrictive placements, to be filed publicly. (2) By 1/5/2021, Plaintiffs shall file a supplemental submission describing any incidents where a stepped-up minor was incorrectly found to be a danger to self or others that occurred after the Court's Order in Flores v. Sessions, No. CV 85-4544DMG (AGRx), 2018 WL 10162328 (C.D. Cal. July 30, 2018). (3) Because the parties have another mediation scheduled for 1/11/2021, and the parties' current pretrial and trial dates and deadlines are infeasible, all scheduled dates are VACATED. (4) The parties shall meet and confer regarding their claims in light of the Court's tentative oral ruling and submit a Joint Status Report on the status of those meetings by 2/1/2021. (5) A written order on the pending motions shall issue, if necessary, after the Joint Status Report is filed. Court Reporter: Not Reported. (gk) (Entered: 12/23/2020)

12/23/2020

317 TRANSCRIPT for proceedings held on 12/22/2020. Court Reporter/Electronic Court Recorder: miriam baird, phone number mvb11893@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 1/13/2021. Redacted Transcript Deadline set for 1/25/2021. Release of Transcript Restriction set for 3/23/2021. (Baird, Miriam) (Entered: 12/23/2020)

12/23/2020

318 NOTICE OF FILING TRANSCRIPT filed for proceedings 12/22/2020 re Transcript 317 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Baird, Miriam) TEXT ONLY ENTRY (Entered: 12/23/2020)

12/31/2020

321 EX PARTE APPLICATION for Extension of Time to File Supplemental Submissions filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of Summer Wynn, # 2 Proposed Order) (Wynn, Summer) (Entered: 12/31/2020)

01/05/2021

322 ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR EXTENSION OF TIME TO FILE SUPPLEMENTAL SUBMISSIONS by Judge Dolly M. Gee: The Court hereby GRANTS Plaintiffs' Ex Parte Application for Extension of Time to File Supplemental Submissions 321 and ORDERS that: (1) The parties' deadline to file a joint supplemental submission with the current version of the form Notice of Placement ("NOP") given to minors stepped-up to more restrictive placements, as well as a representative example of a completed NOP issued within the last year for minors in ORR custody in juvenile detention facilities and residential treatment centers, shall be extended to 1/8/2021; and (2) Plaintiffs' deadline to file a supplemental submission describing any incidents where a stepped-up minor was incorrectly found to be a danger to self or others that occurred after the Court's Order in Flores v. Sessions, No. CV 85-4544-DMG (AGRx), 2018 WL 10162328 (C.D. Cal. July 30, 2018) shall be extended to 1/8/2021. (gk) (Entered: 01/05/2021)

01/08/2021

323 SUPPLEMENT to Minutes of In Chambers Order/Directive - no proceeding held,,,,,, 320 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment.

(Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

324 SEALED DOCUMENT (Exhibit 2) re Supplement, 323 , Minutes of In Chambers Order/Directive - no proceeding held,,,,,, 320 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 2)(Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

325 APPLICATION to file document re Plaintiffs' Supplemental Submission under seal filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Proposed Order, # 2 Redacted Document Ex. 208, # 3 Redacted Document Ex. 209)(Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

326 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document re Plaintiffs' Supplemental Submission under seal 325 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Ex. 205 (entirely under seal), # 2 Ex. 206 (entirely under seal), # 3 Ex. 207 (entirely under seal), # 4 Unredacted Document Ex. 208, # 5 Unredacted Document Ex. 209, # 6 Ex. 211 (entirely under seal), # 7 Ex. 212 (entirely under seal))(Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

327 SUPPLEMENT to Minutes of In Chambers Order/Directive - no proceeding held,,,,,, 320 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of A. Mayhugh in Support, # 2 Exhibit 204, # 3 Exhibit 205, # 4 Exhibit 206, # 5 Exhibit 207, # 6 Exhibit 208, # 7 Exhibit 209, # 8 Exhibit 210, # 9 Exhibit 211, # 10 Exhibit 212)(Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

328 NOTICE OF ERRATA filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. correcting Supplement,, 327 (Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

329 SUPPLEMENT to Minutes of In Chambers Order/Directive - no proceeding held,,,,,, 320 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Declaration of A. Mayhugh in Support, # 2 Exhibit 204, # 3 Exhibit 205, # 4 Exhibit 206, # 5 Exhibit 207, # 6 Exhibit 208, # 7 Exhibit 209, # 8 Exhibit 210, # 9 Exhibit 211, # 10 Exhibit 212)(Wynn, Summer) (Entered: 01/08/2021)

01/08/2021

330 PROOF OF SERVICE filed by plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment, re Sealed Declaration in SupportDeclaration,, 326 , Sealed Document, 324 served on 1/8/2021. (Wynn, Summer) (Entered: 01/08/2021)

01/11/2021

331 MINUTES OF Settlement Conference held before Magistrate Judge Sheri Pym: Court and counsel engaged in settlement discussions off the record. The parties did not reach a settlement, but further settlement discussions are anticipated. The court will hold a follow-up telephonic conference on January 28, 2021 at 10:00 a.m. (kca) (Entered: 01/12/2021)

01/12/2021

332 EX PARTE APPLICATION for Leave to file Response to Plaintiffs' January 8, 2021 Supplemental Submission filed by Defendants Alex Azar. (Attachments: # 1 Declaration, # 2 Proposed Order) (Molina, Ernesto) (Entered: 01/12/2021)

01/13/2021

333 Notice of Appearance or Withdrawal of Counsel: for attorney WoeiTyng Daniel Shieh counsel for Defendants Alex Azar, E. Scott Lloyd, E. Scott Lloyd. Woei-Tyng Daniel Shieh is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendant Alex Azar, et. al.. (Attorney WoeiTyng Daniel Shieh added to party E. Scott Lloyd(pty:dft), Attorney Woei-Tyng Daniel Shieh added to party E. Scott Lloyd(pty:dft))(Shieh, Woei-Tyng) (Entered: 01/13/2021)

01/13/2021

334 Notice of Appearance or Withdrawal of Counsel: for attorney Ernesto Molina counsel for Defendants Alex Azar, E. Scott Lloyd, E. Scott Lloyd. Scott G. Stewart is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendants Alex Azar, Scott Lloyd. (Molina, Ernesto) (Entered: 01/13/2021)

01/13/2021 335 Notice of Appearance or Withdrawal of Counsel: for attorney Christopher Bates counsel for Defendants Alex Azar, E. Scott Lloyd, E.

Scott Lloyd. Christopher Bates is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendants Alex Azar, E. Scott Lloyd. (Bates, Christopher) (Entered: 01/13/2021)

01/13/2021

336 ORDER RE PLAINTIFFS' APPLICATION FOR LEAVE TO FILE UNDER SEAL EXHIBITS IN SUPPORT OF THEIR SUPPLEMENTAL SUBMISSION by Judge Dolly M. Gee: The Court GRANTS Plaintiffs' Application to Seal Exhibits 205-209, 211, and 212 325 . See document for details. (gk) (Entered: 01/13/2021)

01/13/2021

337 ORDER RE DEFENDANTS' EX PARTE APPLICATION FOR LEAVE TO FILE RESPONSE TO PLAINTIFFS' 1/8/2021 SUPPLEMENTAL FILING by Judge Dolly M. Gee: The Court GRANTS in part Defendants' Application 332 and ORDERS that on or before 1/26/2021, Defendants may file a response to Plaintiffs' 1/8/2021 supplemental filing. (gk) (Entered: 01/13/2021)

01/14/2021

338 SEALED DOCUMENT (Sealed Exhibits re Supplemental Submission Regarding Erroneous Step-Ups Pursuant to the Courts December 22, 2020 Order) re Supplement,, 329 , Order on Motion for Leave to File Document Under Seal, 336 filed by Plaintiffs Jaime D., Benjamin F., Gabriela N., Sirena P., Lucas R., Miguel Angel S., San Fernando Valley Refugee Children Center, Inc., Daniela Marisol T., Unaccompanied Central American Refugee Empowerment. (Attachments: # 1 Exhibit 206, # 2 Exhibit 207, # 3 Exhibit 208, # 4 Exhibit 209, # 5 Exhibit 211, # 6 Exhibit 212)(Wynn, Summer) (Entered: 01/14/2021)

01/26/2021 339 RESPONSE filed by Defendant Alex Azarto Order on Motion for Leave to File Document, 337 , Supplement,, 329 (Canter, Nancy) (Entered: 01/26/2021)

01/26/2021

340 APPLICATION to file document Defendants' Exhibits DX-97 and DX98 under seal filed by Defendant Alex Azar. (Attachments: # 1 Proposed Order, # 2 Redacted Document)(Canter, Nancy) (Entered: 01/26/2021)

01/26/2021

341 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Defendants' Exhibits DX-97 and DX-98 under seal 340 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document)(Canter, Nancy) (Entered: 01/26/2021)

01/26/2021 342 NOTICE OF ERRATA filed by Defendant Alex Azar. correcting APPLICATION to file document Defendants' Exhibits DX-97 and DX98 under seal 340 (Canter, Nancy) (Entered: 01/26/2021)

01/26/2021

343 APPLICATION to file document Defendants' Exhibits DX-97 and DX98 under seal filed by Defendant Alex Azar. (Attachments: # 1 Proposed Order, # 2 Redacted Document)(Canter, Nancy) (Entered: 01/26/2021)

01/28/2021

344 ORDER ON APPLICATION TO SEAL by Judge Dolly M. Gee: Upon Defendants' Corrected Application for Leave to File Under Seal Documents Submitted in Support of Defendants' Reply in Support of Defendants' Motion for Summary Judgment 343 , the Court hereby ORDERS that the following documents are filed under seal: (1) Defendants' Exhibit DX-97, Exhibit 167 from the Deposition of Ms. Contreras (GOV-00067091 to -97) (partial), and (2) Defendants' Exhibit DX-98, case file excerpts of minor children (entirety). The Court STRIKES Defendants' erroneously filed Application 340 . (gk) (Entered: 01/28/2021)

01/28/2021

345 MINUTES OF Telephone Conference held before Magistrate Judge Sheri Pym: A Telephone Conference was held in this matter on January 28, 2021. The court and counsel conferred regarding settlement discussions. The court will hold a further telephone conference on Friday, February 26, 2021 at 10:00 a.m. Court Recorder: AT&T Bridge Recorder. (kca) (Entered: 01/28/2021)

01/29/2021

346 SEALED DOCUMENT Defendants' Exhibits DX-97 and DX-98 re Response 339 , Order on Motion for Leave to File Document Under Seal,,,,, 344 filed by Defendant Alex Azar. (Attachments: # 1 Unredacted Document)(Canter, Nancy) (Entered: 01/29/2021)

02/01/2021 347 STATUS REPORT Pursuant To The Court's December 22, 2020 Order filed by Defendants Alex Azar, E. Scott Lloyd, E. Scott Lloyd. (Molina, Ernesto) (Entered: 02/01/2021)

02/18/2021

348 ORDER APPROVING NEW PRETRIAL AND TRIAL DATES PURSUANT TO JOINT STATUS REPORT by Judge Dolly M. Gee: Having read and considered the parties' Joint Status Report of 2/1/2021 347 , the Court hereby issues the amended case schedule. Bench Trial set for 10/12/2021 09:30 AM before Judge Dolly M. Gee. Final Pretrial Conference set for 9/14/2021 02:00 PM before Judge Dolly M. Gee. The Court further ORDERS that the parties' Motions for Summary Judgment 263 , 271 are held in abeyance pending a further Joint Status Report by the parties indicating what aspects of the motions remain at issue and require a ruling. The parties shall comply with the Court's Scheduling and Case Management Order 151 , except to the extent modified herein. (gk) (Entered: 02/19/2021)

02/26/2021 349 MINUTES OF Telephone Conference held before Magistrate Judge Sheri Pym: The court and counsel conferred regarding settlement

discussions. The court will hold a further telephone conference on Wednesday, March 17, 2021 at 10:00 a.m. (kca) (Entered: 02/26/2021)

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1 CARLOS HOLGUÍN (Cal. Bar No. 90754) Center for Human Rights and Constitutional Law
2 256 South Occidental Blvd. Los Angeles, CA 90057
3 Telephone: (213) 388-8693, ext. 309 Facsimile: (213) 386-9484
4 email: crholguin@centerforhumanrights.org

5 Listing continued on next page 6 Attorneys for Plaintiffs

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 LUCAS R., by his next friend MADELYN R.; DANIELA MARISOL T., by her next
12 friend KATHERINE L.; MIGUEL ANGEL S., by his next friend GERARDO S.;
13 GABRIELA N., by her next friend ISAAC N.; JAIME D., by his next friend REYNA
14 D.; SAN FERNANDO VALLEY REFUGEE CHILDREN CENTER, INC.;
15 UNACCOMPANIED CENTRAL AMERICAN REFUGEE EMPOWERMENT,
16 Plaintiffs,
17 v.
18 ALEX AZAR, Secretary of U.S.
19 Department of Health and Human Services; E. SCOTT LLOYD, Director,
20 Office of Refugee Resettlement of the U.S. Department of Health & Human
21 Services,

Case No. 2:18-CV-05741 COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND NOMINAL DAMAGES
(CLASS ACTION)

22

Defendants.

23

24

25

26

27

28
Complaint

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:18-cv-05741-DMG-PLA Document 1 Filed 06/29/18 Page 2 of 43 Page ID #:2

1 Counsel for Plaintiffs, continued

2 HOLLY S. COOPER (Cal. Bar No. 197626) Co-Director, Immigration Law Clinic
3 CARTER C. WHITE (Cal. Bar No. 164149) Director, Civil Rights Clinic
4 University of California Davis School of Law One Shields Ave. TB 30
5 Davis, CA 95616 Telephone: (530) 754-4833
6 Email: hscooper@ucdavis.edu ccwhite@ucdavis.edu
7

8 LEECIA WELCH (Cal. Bar No. 208741)

NEHA DESAI (Cal. RLSA Bar No. 803161)

9 POONAM JUNEJA (Cal. Bar No. 300848)

National Center for Youth Law

10 405 14th Street, 15th Floor

Oakland, CA 94612

11 Telephone: (510) 835-8098

Email: lwelch@youthlaw.org

12

ndesai@youthlaw.org

pjuneja@youthlaw.org

13

14 CRYSTAL ADAMS (Cal. Bar No. 308638) National Center for Youth Law
15 1313 L St. NW, Suite 130 Washington, DC 20005
16 Telephone: (202) 868-4785 Email: cadams@youthlaw.org
17

18 SUMMER WYNN (Cal. Bar No. 240005)

MARY KATHRYN KELLEY (Cal. Bar No. 170259)

19 JON F. CIESLAK (Cal. Bar No. 268951)

Cooley LLP

20 4401 Eastgate Mall

San Diego, CA 92121-1909

21 Telephone: (858) 550-6000

Email: swynn@cooley.com

22

mkkelley@cooley.com

jcieslak@cooley.com

23

24

25

26

27

28

Complaint

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Case 2:18-cv-05741-DMG-PLA Document 1 Filed 06/29/18 Page 3 of 43 Page ID #:3

1

I.

2

INTRODUCTION

3

1. This is an action for injunctive relief, declaratory relief, and nominal

4 damages, challenging certain unlawful policies and practices of Defendant Office of

5 Refugee Resettlement (“ORR”), a subordinate entity within the U.S. Department of

6 Health and Human Services (“HHS”). These policies and practices are causing grave

7 harm to children detained for alleged civil violations of the Immigration and

8 Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”). Pursuant to § 462 of the Homeland

9 Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, codified at 6 U.S.C. § 279

10 (“HSA”), and § 235 of the William Wilberforce Trafficking Victims Protection

11 Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044, codified at 8 U.S.C.

12 § 1232 (“TVPRA”), ORR is responsible for the placement, care, custody and release

13 of “unaccompanied alien children.”

14

2. The named Plaintiffs are immigrant and asylum-seeking children

15 detained for alleged civil violations of the INA and are members of the class protected

16 under the settlement in Flores, v. Sessions, No. 85-cv-4544-DMG (AGRx) (C.D. Cal.)

17 (“Flores Settlement”). Plaintiffs file this complaint as an adjunct and supplement to

18 their motion to enforce their rights under the Flores Settlement. That motion is pending

19 before this Court and calendared for hearing on July 27, 2018. (See Flores v. Sessions,

20 No. 85-cv-4544, ECF Nos. 409, 440.)

21

3. The Flores Settlement and TVPRA § 235 oblige ORR to —

22

(a) minimize the detention of immigrant children by releasing them to their

23

parents or other qualified custodians so long as their continued detention

24

is not required due to dangerousness or unusual flight risk;

25

(b) place detained immigrant children in the least restrictive setting that is in

26

the best interest of individual children—generally a facility having a state

27

license to care for dependent, as opposed to delinquent, juveniles—for

28
Complaint

however long as they remain in federal custody;

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1

(c) ensure that detained immigrant children are held only in facilities that are

2

safe, sanitary and consistent with concern for the particular vulnerability

3

of minors; and

4

(d) ensure to the greatest extent practicable that children who are or have

5

been in ORR custody, except those from contiguous countries, have

6

counsel to represent them in legal matters and protect them from

7

mistreatment, exploitation, and trafficking.

8

4. ORR violates the foregoing requirements, as well as the Due Process

9 Clause of the Fifth Amendment of the U.S. Constitution and the Freedom of

10 Association Clause of the First Amendment to the U.S. Constitution, by pursuing the

11 following policies and practices:

12

(a) ORR confines children in staff-secure facilities, residential treatment

13

centers (“RTCs”), and secure facilities peremptorily, often on bare

14

allegations they are dangerous or pose a flight risk, without affording

15

them a meaningful or timely opportunity to be heard regarding the

16

reasons for such placement;

17

(b) ORR prolongs children’s detention on the ground that their parents or

18

other available custodians are or may be unfit, while affording neither

19

detained juveniles nor their proposed custodians a meaningful or timely

20

opportunity to be heard regarding a proposed custodian’s fitness;

21

(c) ORR places children in residential treatment facilities and detention

22

facilities in which it knows they will be administered powerful

23

psychotropic medications for weeks, months, or years, without

24

procedural safeguards, including seeking their parents’ consent—even

25

those who are present in the United States and readily available to grant

26

or withhold consent to ORR’s medicating their children—or other lawful

27

authorization; and

28

(d) ORR blocks lawyers from representing detained children with respect to

Complaint

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1

placement, non-consensual administration of psychotropic medications,

2

or release to available custodians notwithstanding that Congress has

3

allocated funds specifically to provide such lawyers to represent children

4

who are or have been in ORR custody in “legal matters,” including issues

5

related to release and least-restrictive placement.

6

5. By this action, Plaintiffs seek equitable relief on behalf of themselves and

7 those similarly situated requiring Defendants to conform their polices, practices, and

8 procedures to the Flores Settlement, § 235 of the TVPRA, the Due Process Clause of

9 the Fifth Amendment to the U.S. Constitution, and the Freedom of Association Clause

10 of the First Amendment to the U.S. Constitution. Plaintiffs also seek nominal damages

11 against individual Defendant E. Scott Lloyd in his personal capacity pursuant to Bivens

12 v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

13

II.

14

JURISDICTION AND VENUE

15

6. This Court has jurisdiction over this action pursuant to Paragraph 37 of

16 the Flores Settlement (providing for “the enforcement, in this District Court, of the

17 provisions of this Agreement except for claims brought under Paragraph 24”); 28

18 U.S.C. § 1331 (federal question jurisdiction); and 28 U.S.C. § 2241 (habeas corpus

19 jurisdiction).

20

7. Plaintiffs’ action for declaratory relief is brought pursuant to 28 U.S.C.

21 §§ 2201 and 2202, and 5 U.S.C. § 703.

22

8. Venue is properly in this court pursuant to Paragraph 37 of the Flores

23 Settlement and 28 U.S.C. § 1391(b) and (e)(1), because this action challenges class-

24 wide violations of the Flores Settlement, and because acts complained of herein

25 occurred in this district, Defendants have offices in this district, and no real property

26 is involved in this action.

27

9. Plaintiffs have private rights of action against Defendants pursuant to

28 Paragraph 37 of the Flores Settlement, the Administrative Procedure Act, and 5 U.S.C.

Complaint

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1 §§ 701 et seq.

2

III.

3

PARTIES

4

10. Plaintiff Lucas R.1 is a native and citizen of Guatemala whom ORR is

5 currently detaining at the Shiloh Residential Treatment Center (“Shiloh RTC”) in

6 Texas. He was born in 2005 and is twelve years old. Lucas is, and at all relevant times

7 was, an unaccompanied alien child within the meaning of 6 U.S.C. § 279(g)(2) and a

8 member of the plaintiff class the Flores Settlement protects. Pursuant to Federal Rule

9 of Civil Procedure 17(c)(2), Lucas appears through his Next Friend and sister,

10 Madelyn R., a resident of Los Angeles, California. ORR has refused to release Lucas

11 to his Next Friend and sister on the ground that Madelyn’s home may be unfit.

12

11. Plaintiff Daniela Marisol T. is a native and citizen of Honduras in ORR

13 custody in a residential group home in Kentwood, Michigan. Daniela Marisol was

14 born in 2001 and is sixteen years old. Daniela Marisol is, and at all relevant times was,

15 an unaccompanied alien child within the meaning of 6 U.S.C. § 279(g)(2) and a

16 member of the plaintiff class the Flores Settlement protects. Pursuant to Federal Rule

17 of Civil Procedure 17(c)(2), Daniela Marisol appears through her Next Friend and

18 sister, Katherine L., a resident of St. Paul, Minnesota. ORR has refused to release

19 Daniela Marisol to her Next Friend and sister on the ground that Katherine is or may

20 be unfit.

21

12. Plaintiff Gabriela N. is a native and citizen of El Salvador whom ORR is

22 presently detaining in St. Michael’s Home for Children in Houston, Texas. She was

23 born in 2000 and is seventeen years old. Gabriela is, and at all relevant times was, an

24 unaccompanied alien child within the meaning of 6 U.S.C. § 279(g)(2) and a member

25 of the plaintiff class the Flores Settlement protects. Pursuant to Federal Rule of Civil

26 Procedure 17(c)(2), Gabriela appears through her Next Friend and grandfather, Isaac

27

28

1 Plaintiffs concurrently seek permission to use pseudonyms for the named Plaintiffs and their Next Friends.

Complaint

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1 N., a resident of Oakland, California. ORR has refused to release Gabriela to her Next

2 Friend and grandfather on the ground that Isaac is or may be unfit.

3

13. Plaintiff Miguel Angel S. is a native and citizen of Mexico whom ORR

4 is presently detaining at Yolo County Juvenile Detention Center (“Yolo”), a secure

5 facility in Woodland, California. He was born in 2001 and is seventeen years old.

6 Miguel Angel is, and at all relevant times was, an unaccompanied alien child within

7 the meaning of 6 U.S.C. § 279(g)(2) and a member of the plaintiff class the Flores

8 Settlement protects. Pursuant to Federal Rule of Civil Procedure 17(c)(2), Miguel

9 Angel appears through his Next Friend and father, Gerardo S., a resident of San Jose,

10 California. ORR has refused to release Miguel Angel to his Next Friend and father on

11 the ground that Gerardo is or may be unfit.

12

14. Plaintiff Jaime D. is a native and citizen of Honduras and presently being

13 held in ORR custody in Dobbs Ferry, New York. He was born in 2004 and is thirteen

14 years old. Jaime is, and at all relevant times was, an unaccompanied alien child within

15 the meaning of 6 U.S.C. § 279(g)(2) and a member of the plaintiff class the Flores

16 Settlement protects. Pursuant to Federal Rule of Civil Procedure 17(c)(2), Jaime

17 appears through his Next Friend, Reyna D., a resident of Riverdale, Maryland. Reyna

18 is Jaime’s aunt. Reyna has sought to be Jaime’s custodian and to have Jaime released

19 from ORR custody into her care.

20

15. Plaintiff San Fernando Valley Refugee Children Center, Inc. (“Children

21 Center”) is a non-profit organization incorporated in the State of California, with its

22 principal place of business in North Hills, California. The Children Center is a project

23 of the North Hills United Methodist Church’s Hispanic Mission. The Children

24 Center’s mission is to provide comprehensive social services, including mental health

25 care, shelter, transitional living assistance and legal aid, to children, youth, and

26 families who have come in search of refuge from persecution and endemic violence in

27 the Northern Triangle of Central America (El Salvador, Honduras, and Guatemala).

28 The children and youth the Children Center serves are the functional equivalents of its

Complaint

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1 members. The rights of children and youth the Children Center seeks to protect in this

2 action are germane to its mission and purpose. ORR’s policies and practices, as alleged

3 herein, make it substantially more difficult for the Children Center to carry out its

4 mission. For example, many of the children and youth whom the Children Center

5 serves have suffered multiple psychological and physical traumas, first in their

6 countries of origin, next during their journeys through Mexico, and then again, upon

7 being arrested and detained for immigration violations. The more time already-

8 traumatized children and youth remain detained, separated from their parents and

9 families, the more their mental and physical health deteriorates. The trauma that

10 immigration detention causes children and youth is greater still when ORR places them

11 in restrictive settings such as juvenile halls and RTCs, or medicates them involuntarily

12 or without their parents’ consent or other lawful authority. The additional trauma such

13 detention inflicts requires the Children Center to devote commensurately greater

14 resources, particularly mental health resources, to assist such children and youth to

15 recover.

16

16. The Children Center is one of a small number of non-profit organizations

17 that serve refugee children and youth. The Children Center’s resources are limited and

18 do not allow it to help all who are in need. The Children Center’s ability to raise funds

19 depends in part on the raw number of children and youth it helps. As a practical matter,

20 resources the Children Center’s devotes to serving one child or youth are unavailable

21 to others. Defendants’ challenged policies and practices divert the Children Center’s

22 limited resources to address the injuries those policies and practices cause, thereby

23 reducing the number of other needy children and youth the Children Center is able to

24 assist, and, a fortiori, its ability to raise funds. The Children Center therefore has a

25 direct institutional interest in: (a) minimizing the time refugee children and youth are

26 detained; (b) ensuring that such children and youth are housed in minimally restrictive

27 settings for however long they must remain in immigration-related detention;

28 (c) minimizing the injury children and youth suffer as a result of taking psychotropic

Complaint

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1 drugs; and (d) ensuring that refugee children and youth have counsel to assist them in

2 all legal matters relating to their immigration status, including custody, placement, and

3 the administration of psychotropic drugs without parental consent. The direct

4 participation in this litigation of the children and youth whom the Children Center

5 serves is not necessary because Plaintiffs seek only prospective equitable relief and

6 nominal damages.

7

17. Plaintiff Unaccompanied Central American Refugee Empowerment

8 (“UCARE”) is an unincorporated consortium of non-profit agencies, most of which

9 are incorporated in the State of California, with its principal place of business in Los

10 Angeles, California. UCARE’s mission is to advocate for and provide legal and social

11 services to immigrant and refugee minors, many of whom are or have been in ORR or

12 Immigration and Customs Enforcement custody. In appropriate cases, UCARE

13 arranges free representation and assistance to youth with immigration problems before

14 the U.S. Citizenship and Immigration Services, the Executive Office of Immigration

15 Review, and the Board of Immigration Appeals. Defendants’ unlawful policies, and

16 practices, as alleged herein, make such assistance and representation substantially

17 more difficult and render UCARE’s work less effective. ORR’s compliance with the

18 Flores Settlement and § 235 of the TVPRA is germane to UCARE’s purpose. The

19 individual participation of aggrieved youth the UCARE serves is not necessary

20 because UCARE seeks only prospective or injunctive relief and nominal damages for

21 its client members. UCARE has an actual stake in this litigation because the funding

22 of UCARE’s member organizations is largely determined by the number of youth they

23 serve. Defendants’ challenged policies and practices deny or delay children’s release,

24 and thus delay or deny Plaintiff UCARE’s member organizations the opportunity to

25 serve them.

26

18. Defendant Alex Azar is the Secretary of HHS and oversees ORR.

27 Pursuant to 6 U.S.C. § 279, HHS is responsible for the proper care and placement of

28 unaccompanied alien children who are in federal custody by reason of their

Complaint

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1 immigration status. HHS and ORR discharge these duties by, inter alia, entering into

2 contracts with public and private entities to house, care for, and provide legal

3 assistance to unaccompanied alien children arrested and detained pursuant to the INA.

4 Defendant Azar is sued in his official capacity only.

5

19. Defendant E. Scott Lloyd is the Director of ORR. ORR is responsible for

6 the care and custody of unaccompanied alien children in federal custody on account

7 of their immigration status. Defendant Lloyd is sued in his individual capacity for

8 nominal damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

9 Narcotics, 403 U.S. 388 (1971), and in all other respects in his official capacity only.

10

20. Defendants, and each of them, have historically professed to act in the

11 capacity of parens patriae to detained children. Defendants, and each of them, thereby

12 assume a legal obligation to act in such children’s best interests. Defendants breach

13 this duty in pursuing the policies and practices challenged in this Complaint.

14

IV.

15

NAMED PLAINTIFFS’ EXPERIENCES IN ORR CUSTODY

16 A. Lucas R.

17

21. On or about February 12, 2018, ORR assumed custody of Plaintiff Lucas

18 R. after he arrived at the U.S.-Mexico border. ORR placed him at the Hacienda del Sol

19 facility in Youngtown, Arizona. Within approximately ten days, Madelyn R., Lucas’

20 adult sister and Next Friend, requested Lucas’ custody and delivered to ORR a family

21 reunification packet with the required documentation. Many years ago, Lucas and

22 Madelyn’s father abandoned them; their mother died when Lucas was approximately

23 two years old. Thereafter, Madelyn and an aunt raised Lucas in his parents’ stead.

24 Madelyn and Lucas have a very close relationship. Over the next six weeks or so, ORR

25 assured Madelyn that everything was in order and that it would soon release Lucas to

26 her custody; it did not.

27

22. According to Madelyn, in Guatemala, Lucas was a thriving, happy child

28 who liked to joke, play, and talk with people. When he arrived at Hacienda del Sol,

Complaint

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1 facility staff noted that Lucas appeared cooperative, calm, and alert, and showed “no

2 behavioral concerns.”

3

23. As his confinement wore on, however, Lucas became depressed, fearing

4 that ORR would never release him to his family. Without obtaining Madelyn’s

5 informed consent, the informed consent of any other adult family member, or judicial

6 authorization, ORR administered Lucas psychotropic drugs, ostensibly to control

7 “moderate” depression. Upon information and belief, ORR did not involve a neutral

8 decision maker in the initial determination of whether to prescribe psychotropic

9 medications to Lucas or in ongoing reviews of those medications.

10

24. The medications caused Lucas stomach pain, and he refused to continue

11 taking them. On or about May 21, 2018, ORR transferred Lucas to Shiloh RTC in

12 Manvel, Texas, without affording him notice, an opportunity to be heard, or a right to

13 appeal. ORR led Madelyn to believe Shiloh RTC was simply another shelter to which

14 it was sending Lucas because Hacienda del Sol lacked space. ORR did not inform

15 Madelyn that Shiloh RTC is a psychiatric institution, that it had administered Lucas

16 psychotropic drugs at the Hacienda del Sol facility, that he was being transferred to

17 Shiloh RTC for mental health reasons, or that Lucas would be required to take more

18 psychotropic drugs at Shiloh RTC.

19

25. Approximately six weeks after Madelyn had requested Lucas’ custody,

20 ORR sent an investigator to Madelyn’s home in Los Angeles, California. Living with

21 Madelyn then and now are her infant daughter, adult brother, and an unrelated female

22 roommate and her child. At the time the investigator arrived, Madelyn’s roommate’s

23 brother was visiting.

24

26. The investigator indicated to Madelyn that her home was suitable, but

25 that all adults who reside with her would have to appear for fingerprinting, including

26 her roommate’s brother. Madelyn advised the investigator that her roommate’s brother

27 did not live in the home, but the investigator insisted that the visitor appear for

28 fingerprinting regardless. All the adult residents of Madelyn’s home appeared for

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1 fingerprinting, but her roommate’s brother did not. Approximately one month later,

2 ORR orally advised Madelyn that it would not release Lucas to her because her

3 roommate’s brother had failed to appear for fingerprinting. ORR represented to

4 Madelyn that its decision was final, and afforded neither Madelyn nor Lucas any

5 hearing, right to administrative appeal, or other means to change its decision. ORR

6 failed to provide Madelyn with a written decision or written explanation for denying

7 her custody of Lucas. Due to ORR’s actions and inactions, Lucas’ release has been

8 unnecessarily delayed, and Lucas has not been placed in the least restrictive setting.

9

27. Twelve-year-old Lucas remains detained at Shiloh RTC where he has

10 been administered Zoloft. Zoloft’s side-effects include rigidity in the muscles, high

11 fever, sweating, confusion, agitation, hallucinations, overactive reflexes, tremors,

12 nausea, vomiting, diarrhea, loss of appetite, fainting, and seizures.

13

28. Shiloh personnel have now diagnosed Lucas with “major depressive

14 disorder.” Among Lucas’ “major stressors,” Shiloh personnel identify his “[b]eing

15 kept from family and in ORR custody.” Shiloh staff have nonetheless told Lucas that

16 ORR will not release him until Shiloh medical personnel declare him psychologically

17 sound.

18

29. ORR has provided Lucas no legal counsel to represent him with respect

19 to release, the administration of psychotropic medications, or placement at Shiloh.

20 B. Daniela Marisol T.

21

30. On or about August 3, 2017, Plaintiff Daniela Marisol T., a partially deaf

22 sixteen-year-old girl, arrived at the U.S.-Mexico border with her older sister, Katherine

23 L., and her nephew. Daniela Marisol, Katherine, and her younger nephew fled from

24 their home country in fear for their lives. At the border, Daniela Marisol was forcibly

25 separated from her sister and nephew and placed in the custody of ORR at the

26 International Education Service Norma Linda Shelter in Los Fresnos, Texas. Daniela

27 Marisol and Katherine are very close, and Daniela Marisol views Katherine as a

28 second mother. Daniela Marisol was so emotionally traumatized by the separation that

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1 she was later admitted to a psychiatric hospital to cope with the trauma. The screening

2 physician also recommended treatment for Daniela Marisol’s hearing disability once

3 she was released to her sister—a release that, eleven months later, has yet to come to

4 fruition.

5

31. Katherine and her son, detained separately from Daniela Marisol, were

6 released from immigration custody after they proved to an Asylum Officer that they

7 have a credible fear of persecution should they be returned to Honduras. Upon release,

8 Katherine applied to become Daniela Marisol’s custodian and have ORR release

9 Daniela Marisol to her custody. However, ORR has placed arbitrary, expensive, and

10 excessive conditions on Daniela Marisol’s release, which Katherine has not been able

11 to meet.

12

32. According to Katherine, when Daniela Marisol lived in Honduras with

13 her family, she did not seem to have mental health issues. However, Daniela Marisol’s

14 psychological state rapidly deteriorated after her family separation. It was further

15 exacerbated when caseworkers told Daniela Marisol that she was not going to be

16 released to her sister. Daniela Marisol lost hope that she would ever be released to her

17 family. Depressed and suicidal, she was admitted to a psychiatric hospital where she

18 suffered a psychotic breakdown.

19

33. While Daniela Marisol was detained at the Norma Linda shelter, a doctor

20 recognized that she was deaf in one ear. ORR declined to treat her deafness and instead

21 noted that she should consult a specialist regarding her deafness “once [she was]

22 reunified with family.” Months later, when she was at a new facility, it was

23 recommended she receive hearing aids, but to date, Daniela Marisol has not received

24 them.

25

34. After her breakdown, on or about September 8, 2017, ORR transferred

26 Daniela Marisol to Shiloh RTC in Manvel, Texas, without affording her notice, an

27 opportunity to be heard or a right to appeal. At Shiloh, Daniela Marisol’s hearing

28 disability went untreated.

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1

35. Without obtaining the informed consent of Daniela Marisol’s mother,

2 Katherine, other family members, or court authorization, ORR administered numerous

3 psychotropic medications to Daniela Marisol, including atypical antipsychotics and

4 antidepressants, starting when she was in the Norma Linda shelter, and continuing

5 while she was at Shiloh RTC and the David and Margaret shelter in La Verne,

6 California, and through her present placement, Bethany Christian Services in

7 Michigan. In the approximately ten months that she has been in ORR custody, Daniela

8 Marisol has been given multiple psychotropic medications, including Prozac, Abilify,

9 Clonidine, Risperdal, Seroquel, and Zyprexa. While in ORR custody, Daniela Marisol

10 has been the subject of numerous, changing diagnoses, including “Bipolar disorder,

11 MRE, Mixed, with psychosis, GAD, PTSD;” “major depressive disorder, recurrent

12 episode, severe with mood-congruent psychotic features;” and “bipolar II disorder,

13 generalized anxiety disorder, PTSD.” Upon information and belief, ORR did not

14 involve a neutral decision maker in the initial determination of whether to prescribe

15 psychotropic medications to Daniela Marisol or in ongoing reviews of those

16 medications.

17

36. As recognized by the U.S. Food and Drug Administration (“FDA”),

18 antidepressants such as those prescribed to Daniela Marisol “increase[] the risk

19 compared to placebo of suicidal thinking and behavior (suicidality) in children,

20 adolescents, and young adults in short term studies of major depressive disorder

21 (MDD) and other psychiatric disorders.” ORR has frequently given Daniela Marisol

22 an atypical antipsychotic and an antidepressant in combination. Research

23 demonstrates that the number and severity of side effects, such as thoughts of suicide

24 and intentional self-harm, increases as the number of concurrent medications

25 increases. Daniela Marisol has become suicidal while being made to take such

26 antidepressants and drug combinations.

27

37. Daniela Marisol believes that she has to take the medicine because facility

28 staff have told her that she must in order to be released from government custody.

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1

38. Katherine desperately wants to provide her younger sister a loving and

2 safe home, and she has done everything in her power to have Daniela Marisol released

3 to her care. However, ORR has told Katherine that, in order for Daniela Marisol to be

4 released to her care, Katherine must move to a new house, have a separate private

5 bedroom for Daniela Marisol, and prove that she can pay over $500 per month for

6 Daniela Marisol’s medical care. Katherine has been unable to meet ORR’s arduous

7 and arbitrary demands. ORR never provided Katherine with a written decision or

8 written explanation for denying her custody of Daniela Marisol. It represented to her

9 that the requirements that it set and its decision were final, and it never afforded

10 Katherine or Daniela Marisol any hearing, right to administrative appeal, or other

11 means to change its decision. Due to ORR’s actions and inactions, Daniela Marisol’s

12 release has been unnecessarily delayed, and she has not been placed in the least

13 restrictive setting.

14

39. Daniela Marisol remains in government custody, away from her sister

15 and other family. ORR has given her no legal counsel to represent her with respect to

16 release, administration of psychotropic medications, or her placement.

17 C. Miguel Angel S.

18

40. On or about May 16, 2017, ORR assumed custody of Plaintiff Miguel

19 Angel after he arrived at the U.S.-Mexico border. ORR placed him at the Southwest

20 Key shelter in southern California. The staff initially told Miguel Angel that he would

21 be released to Gerardo S., his father and next friend, within three months.

22

41. As Miguel’s time in detention wore on, he felt anxious at the shelter and

23 often feared he would never be released. On July 17, 2017, ORR transferred Miguel

24 Angel to Shiloh RTC in Texas, without affording him notice, an opportunity to be

25 heard or a right to appeal. At Shiloh, Miguel Angel was administered several

26 psychotropic medications, including Remeron, Trazadone, Seroquel, and Lexapro.

27 Side effects of these medications include stomach pain, dizziness, nausea, drowsiness,

28 unusual weight gain, blurred vision, and insomnia.

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1

42. Miguel Angel objected to taking the medications because they made him

2 feel itchy, dizzy, aggressive, nauseous, and caused him to gain an unusual amount of

3 weight in a short period of time. Shiloh staff insisted that he take the medication. Upon

4 information and belief, the staff at Shiloh administered these medications to Miguel

5 Angel without obtaining Gerardo’s informed consent or judicial authorization.

6

43. Upon information and belief, ORR did not involve a neutral decision

7 maker in the initial determination of whether to prescribe psychotropic medications to

8 Miguel Angel or in ongoing review of those medications.

9

44. While Miguel Angel was detained at Shiloh, several staff members

10 physically assaulted him multiple times. During one incident, a staff member placed

11 Miguel Angel in a headlock, painfully ripping Miguel Angel’s earring out of his

12 earlobe. A physician’s assistant watched this, but did nothing to stop the attack. Miguel

13 Angel reported the incident immediately to the facility doctor, but the doctor laughed

14 and did nothing. Another time, two Shiloh staff members picked Miguel Angel up by

15 his arms and pushed him up against a wall. One of the staff members pressed his

16 forearm across Miguel Angel’s throat, making it hard for him to breathe. Upon

17 information and belief, when Miguel Angel reported the incidents to staff, no

18 disciplinary action was taken.

19

45. In March 2018, shortly after these assaults took place, ORR transferred

20 Miguel Angel to Yolo Juvenile Detention Center, affording him neither notice nor

21 opportunity to be heard. Upon information and belief, Miguel Angel was transferred

22 to Yolo in retaliation for reporting the assaults.

23

46. At Yolo, facility staff attacked Miguel Angel with pepper spray, and he

24 fears they will do it again. On one occasion, after Miguel Angel had been pepper

25 sprayed by staff in his eyes and ears, he had to use water from the toilet in his cell to

26 wash out his eyes because staff cut off water to his sink. The pepper spray made his

27 eyes feel like they were on fire, and he lost hearing in one ear for several days. Miguel

28 Angel spends most of his time at Yolo locked in a small cell and is only allowed out

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1 for short periods, which makes him feel trapped and tortured.

2

47. Miguel Angel’s father, Gerardo, applied to be Miguel Angel’s sponsor

3 around October 2017. Miguel Angel and Gerardo have a very close relationship, and

4 Miguel Angel wants to live with him. Gerardo lives in an apartment with his brother,

5 and in October 2017 both Gerardo and his brother submitted all required documents

6 to ORR, including birth certificates and fingerprints. ORR also requested that

7 Gerardo’s neighbor, who lives across the hallway, submit the same information. The

8 neighbor submitted this information in October 2017.

9

48. In December 2017, a home investigator visited Gerardo’s apartment to

10 perform a home study. The home study went well, and the investigator assured

11 Gerardo that Miguel Angel would probably be released in the first few weeks of

12 January. Gerardo heard nothing from ORR or Miguel Angel’s case workers throughout

13 January or February 2018.

14

49. In March 2018, Gerardo was told that the Shiloh doctors would not

15 approve Miguel Angel for release and that he would remain in ORR custody until they

16 do. In early May 2018, Miguel Angel’s case worker at Yolo told Gerardo that he

17 needed to provide proof of school enrollment and the name of a psychiatric clinic in

18 order for Miguel Angel to be released. Gerardo has tried his best to comply with these

19 requirements, but the local school requires Miguel Angel to be physically present in

20 order to be enrolled, and Gerardo has been unable to find a psychiatric clinic that will

21 give Miguel Angel an appointment. In late May 2018, Miguel Angel’s case worker

22 told Gerardo that his fingerprints had expired, and that Gerardo, his brother, and his

23 neighbor would need to submit their fingerprints again.

24

50. ORR has refused to release Miguel Angel to Gerardo’s custody for eight

25 months. ORR has not provided Miguel Angel or Gerardo with written notification of

26 its refusal to release Miguel Angel or the basis for the refusal, or an opportunity to

27 review the underlying evidence or appeal ORR’s refusal to release Miguel Angel to

28 his father. Due to ORR’s actions and inactions, Miguel Angel’s release has been

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1 unnecessarily delayed and he has not been placed in the least restrictive setting.

2 D. Gabriela N.

3

51. On or about January 8, 2017, ORR assumed custody of Plaintiff Gabriela

4 N., shortly after she had turned herself in at the U.S.-Mexico border. As a young girl

5 living in El Salvador, Gabriela experienced extreme violence and did not feel safe at

6 home. ORR placed her at the Southwest Key Casita del Valle facility (“Casita del

7 Valle shelter”) in Clint, Texas. In the fall of 2017, Isaac N., Gabriela’s grandfather and

8 Next Friend, requested Gabriela’s custody and submitted an application to serve as her

9 custodian. Gabriela’s mother appeared before a U.S. Consular official in El Salvador

10 to execute a formal designation pursuant to Paragraph 14D of the Flores settlement

11 directing ORR to release Gabriela to her grandfather.

12

52. Gabriela’s biological father is deceased, and her stepfather physically

13 abused her mother and disabled sister who suffers from paralysis from the abuse and

14 can no longer to speak. Thus, Gabriela fled to the U.S. seeking safety, with the hope

15 of living with her grandfather. Gabriela and her grandfather, Isaac, have a close

16 relationship, and she wants to live with him. Over the next eight months or so, Isaac

17 continued to submit documents that ORR requested and completed a home study in

18 anticipation that ORR would release Gabriela to his custody; it did not.

19

53. According to Isaac, in El Salvador, Gabriela had no mental health

20 concerns, and she took no medications for mental illness. When she arrived at Casita

21 del Valle shelter, facility staff noted that Gabriela appeared emotionally stable,

22 receptive, and resilient.

23

54. As her confinement wore on, however, Gabriela became depressed and

24 anxious, fearing that ORR would never release her to her family. Without obtaining

25 Isaac’s informed consent, the informed consent of any other adult family member, or

26 judicial authorization, ORR repeatedly administered Gabriela psychotropic

27 medications, ostensibly to control post-traumatic stress disorder, anxiety, major

28 depressive disorder, and attention-deficit hyperactivity disorder (“ADHD”).

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55. While at Casita del Valle shelter, Gabriela was administered Prozac, a

2 psychotropic medication.

3

56. On or about September 7, 2017, ORR transferred Gabriela to Shiloh RTC,

4 without affording notice, an opportunity to be heard or a right to appeal. At Shiloh,

5 ORR administered Gabriela more psychotropic medications, including Gabapentin,

6 Prozac, and Bupropion, all of which include side effects of increased risk of suicidal

7 ideation and behavior. Bupropion is not FDA-approved to treat depression or ADHD

8 in adolescents. Upon information and belief, ORR did not involve a neutral decision

9 maker in the initial determination of whether to prescribe psychotropic medications to

10 Gabriela or in ongoing review of those medications.

11

57. Gabriela does not believe the medications help her, and she does not want

12 to take them. However, Gabriela believes that she must take the medications in order

13 to be released from detention. Shiloh staff told Gabriela that ORR would not release

14 her until Shiloh medical personnel declare her psychologically sound.

15

58. In February 2018, ORR sent an investigator to Isaac’s home in Oakland,

16 California, where he lived, and continues to live, alone. Isaac moved to a new

17 apartment and purchased a new bed for Gabriela in preparation for her release.

18

59. The investigator indicated to Isaac that his home was suitable, but

19 questioned Isaac’s ability to support Gabriela’s education and care for her financially.

20 Isaac assured the investigator that he would do everything required to provide for

21 Gabriela. Later, Gabriela’s social worker at Shiloh told Isaac that ORR was no longer

22 considering him as a custodian for his granddaughter and was going to transfer

23 Gabriela elsewhere. ORR afforded neither Isaac nor Gabriela any hearing, right to

24 administrative appeal, or other means to change its decision. ORR failed to provide

25 Isaac with a written decision or written explanation for denying him custody of

26 Gabriela. Due to ORR’s actions and inactions, Gabriela’s release has been

27 unnecessarily delayed and Gabriela has not been placed in the least restrictive setting.

28

60. Seventeen-year-old Gabriela remains detained at St. Michael’s Home for

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1 Children, where she has been administered Prozac.

2

61. After being detained for over one and a half years, Gabriela is miserable

3 and desperately wants to live with her grandfather. Her grandfather is ready and eager

4 to care for her. Shiloh staff have nonetheless told Gabriela that ORR will not release

5 her to her grandfather. ORR has provided Gabriela no legal counsel to represent her

6 with respect to release, the administration of psychotropic medications, or her

7 placement at Shiloh.

8 E. Jaime D.

9

62. On or about April 8, 2018, ORR assumed custody of Plaintiff Jaime D.

10 after he arrived at the U.S.-Mexico border with his 6-year-old sister and 10-year-old

11 aunt. ORR placed Jaime and his younger sister and aunt at the Cayuga Centers shelter

12 in Bronx, New York. On or about April 10, 2018, Reyna D., Jaime’s aunt and Next

13 Friend, requested Jaime’s custody and submitted a family reunification packet to ORR.

14 Reyna is Jaime’s only family in the United States. Jaime desperately wants to be

15 released to Reyna’s care. Jaime’s mother died when he was seven years old and, upon

16 information and belief, his father died before he was born. Reyna discussed ORR’s

17 requirements for becoming Jaime’s custodian in detail with Jaime’s case manager at

18 Cayuga Centers and immediately began gathering the required documents to send to

19 ORR.

20

63. When Jaime was first sent to Cayuga Centers, the staff made him feel

21 very nervous. Jaime was terrified that he would be forced to return to his home country,

22 where his life had been threatened. He made up a story about his life in his home

23 country, because he thought that this would make the shelter staff leave him alone. He

24 later recanted this story multiple times. Despite the shelter recommending that Jaime

25 be placed in a staff-secure facility, thirteen-year-old Jaime was transferred to a secure

26 facility.

27

64. On or about April 18, 2018, ORR transferred Jaime to Yolo County

28 Juvenile Detention Center in Woodland, California. ORR transferred Jaime to Yolo

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1 without affording him notice, an opportunity to be heard or a right to appeal. He was

2 awakened at 4:00 in the morning and restrained with heavy shackles throughout the

3 cross-country flight from New York to California. Jaime was not allowed to say

4 goodbye to his younger sister or aunt. He was extremely worried they would think he

5 had abandoned them.

6

65. Yolo staff first contacted Reyna regarding her application for Jaime’s

7 custody about a week after Jaime arrived at Yolo. Approximately two weeks later,

8 Jaime’s case manager noted that Reyna had “provided all that [had] been asked of

9 her,” including a complete family reunification packet and fingerprints. In late May

10 2018, Reyna completed a home study and interview with a home investigator. ORR

11 found Reyna a suitable custodian for Jaime’s younger sister and aunt. ORR released

12 the two girls to Reyna’s care on or about June 8, 2018.

13

66. While detained at Yolo, Jaime was very scared for his safety and suffered

14 from anxiety. Reyna was extremely concerned for his well-being as well, as Jaime

15 sounded increasingly sad and scared during their phone calls. Throughout his time at

16 Yolo, Jaime suffered physical abuse at the hands of older youth in the facility. Jaime

17 alerted facility staff of the abuse, but staff ignored his concerns and said they did not

18 believe him.

19

67. Two weeks after he was transferred to Yolo, Jaime’s case manager noted

20 that the Yolo staff were “all in agreement that [Jaime] isn’t appropriately placed in a

21 secure setting.” Jaime was told by his case worker that he was too young to be at Yolo

22 and would hopefully be transferred soon. However, Jaime remained at Yolo for

23 another three weeks. On or about May 24, 2018, ORR transferred Jaime to Children’s

24 Village staff secure facility in Dobbs Ferry, New York.

25

68. Thirteen-year-old Jaime remains detained at Children’s Village, where he

26 is increasingly anxious and worried that he will never be released to his aunt’s care.

27 As of the filing of this Complaint, Reyna has not heard from Jaime’s case worker at

28 Children’s Village for over a month. Reyna has not been given any information about

Complaint

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1 why Jaime has not yet been released to her care. ORR has not provided Jaime or Reyna

2 with written notification of its refusal to release Jaime or the basis for the refusal, or

3 an opportunity to review the underlying evidence or appeal ORR’s refusal to release

4 Jaime to his aunt. Due to ORR’s actions and inactions, Jaime’s release has been

5 unnecessarily delayed and Jaime has not been placed in the least restrictive setting.

6

69. ORR has provided Jaime no legal counsel to represent him with respect

7 to release or his placement at Children’s Village.

8

V.

9

CLASS ACTION ALLEGATIONS

10

70. The named Plaintiffs bring this action pursuant to Federal Rule of Civil

11 Procedure 23(a) and (b)(2) on behalf of themselves and the following similarly situated

12 proposed class members:

13

All children in ORR custody pursuant to 6 U.S.C. § 279 and/or 8 U.S.C.

14 § 1232 —

15

(a) whom ORR refuses to release to parents or other available custodians

16

within thirty days of the proposed custodian’s submitting a complete

17

family reunification packet on the ground that the proposed custodian is

18

or may be unfit;

19

(b) who have been, are or will be placed in a secure facility, medium-secure

20

facility, or RTC, or continued in any such facility for more than thirty

21

days, without being afforded notice and an opportunity to be heard before

22

a neutral and detached decisionmaker regarding the grounds for such

23

placement; or

24

(c) who have been or will be administered psychotropic medication without

25

procedural safeguards, including obtaining informed consent or court

26

authorization prior to medicating a child, involving a neutral

27

decisionmaker in the initial determination of whether to prescribe

28
Complaint

psychotropics to a child in ORR custody, and involving a neutral

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1

decision-maker to conduct periodic reviews of those medications as

2

treatment continues; or

3

(d) who are natives of non-contiguous countries and to whom ORR blocks

4

legal assistance in legal matters or proceedings involving their custody,

5

placement, release, and/or non-consensual consumption of psychotropic

6

drugs.

7

71. The exact size of the proposed class is unknown, but likely includes

8 hundreds of children. The size of the class is so numerous that joinder of all members

9 is impracticable.

10

72. The claims of Plaintiffs and those of the proposed class members raise

11 common questions of law and fact concerning whether Defendants’ policies and

12 practices relating to the release, placement, treatment, and legal representation of

13 detained immigrant children are consistent with the Flores Settlement, § 235 of the

14 TVPRA, the Fifth Amendment to the United States Constitution, and the First

15 Amendment of the Constitution. These questions are common to the named Plaintiffs

16 and the members of the proposed class because Defendants have acted and will

17 continue to act on grounds generally applicable to the named Plaintiffs and the

18 proposed class members. Plaintiffs’ claims are typical of the class’s claims.

19

73. The prosecution of separate actions by individual members of the

20 proposed class would create a risk of inconsistent or varying adjudications establishing

21 incompatible standards of conduct for Defendants. Proposed class members are

22 predominantly indigent, non-English-speaking children who are being denied basic

23 fairness in ORR’s prolonging their detention in lieu of releasing them to parents or

24 other proposed custodians, “stepped up” to RTC, secure or staff-secure placement

25 without notice or opportunity to be heard, and administered psychotropic medications

26 without a parent’s informed consent. The proposed class members are under ORR’s

27 exclusive physical control and often understand little, if anything, about their rights

28 under the Flores Settlement, the TVPRA, or the Constitution. ORR actively obstructs

Complaint

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1 lawyers from representing members of the proposed class in legal proceedings relating

2 to custody, placement, or release. Unless this matter proceeds as a class action, the

3 majority of class members have little chance of securing judicial review of the policies

4 and practices challenged herein.

5

74. Defendants, their agents, employees, and predecessors and successors in

6 office have acted or refused to act, and will continue to act or refuse to act, on grounds

7 generally applicable to the class, thereby making injunctive relief and corresponding

8 declaratory relief appropriate with respect to the class as a whole. Plaintiffs will

9 vigorously represent the interests of unnamed class members. All members of the

10 proposed class will benefit by this action. The interests of the named Plaintiffs and

11 those of the proposed class members are identical.

12

75. Plaintiffs are represented by experienced and reputable lawyers

13 associated with non-profit public interest law firms and an international law firm

14 serving pro bono publico. Plaintiffs’ counsel includes attorneys with years of

15 experience litigating complex suits and class actions on behalf of children and foreign

16 nationals, including counsel for the plaintiff class in Flores v. Sessions.

17

VI.

18

ORR POLICY & PRACTICE VIOLATES DUE PROCESS

19 A. Defendants have violated Plaintiffs’ due process and family association rights,

20

the TVPRA, and the Flores Settlement in determining custodians’ fitness.

21

76. When children are held in government custody apart from their primary

22 caregivers for long periods, they suffer profound and long-lasting injury. The

23 American Academy of Pediatrics has explained that “highly stressful experiences, like

24 family separation, can cause irreparable harm, disrupting a child’s brain architecture

25 and affecting his or her short- and long-term health. This type of prolonged exposure

26 to serious stress—known as toxic stress—can carry lifelong consequences for

27 children.” Toxic stress is associated with increased rates of mental health issues, risky

28 health behaviors, and physical illness such as diabetes, cancer, posttraumatic stress

Complaint

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1 disorder (“PTSD”), and heart disease. Studies of immigrant children detained in the

2 United States have discovered high rates of PTSD, anxiety, depression, and suicidal

3 ideation. A primary factor in recovering from such trauma is reunification with a

4 parent or other trusted adult. Without the presence of trusted caregivers, children are

5 often unable to cope with the psychological trauma and stress associated with

6 detention.

7

77. Paragraph 14 of the Flores Settlement requires ORR to release children

8 from immigration-related custody “without unnecessary delay” so long as their

9 continued detention is not required to secure availability for removal or to protect

10 safety. Paragraph 18 of the Settlement requires ORR to make “prompt and continuous

11 efforts” toward family reunifications and to release children to suitable custodians

12 without unnecessary delay.

13

78. Similarly, § 235(c)(2)(A) of the TVPRA, codified at 8 U.S.C.

14 1232(c)(2)(A), requires ORR to “promptly” place detained children “in the least

15 restrictive setting that is in the best interest of the child,” generally, with “a suitable

16 family member . . . .” TVPRA § 235(c)(3)(A) provides, “[A]n unaccompanied alien

17 child may not be placed with a person or entity unless the Secretary of Health and

18 Human Services makes a determination that the proposed custodian is capable of

19 providing for the child’s physical and mental well-being.”

20

79. Paragraph 24A of the Flores Settlement guarantees detained children the

21 right to a hearing during which an immigration judge reviews whether they may be

22 continued in custody because they are dangerous or unusually likely to abscond.

23 However, neither the Flores Settlement nor the TVPRA prescribe what process is due

24 where ORR unreasonably prolongs a juvenile’s detention or refuses to release him or

25 her because ORR questions whether an available parent or other potential custodian is

26 capable of providing for the child’s physical and mental well-being.

27

80. Plaintiffs have substantial liberty interests in being free from government

28 custody, in preserving their family unity and the ability for their family to care for

Complaint

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1 them, and in family association. Defendants may not abridge these liberty interests

2 without appropriate procedures to protect against erroneous deprivation.

3

81. Plaintiffs have a fundamental right to the supervision, companionship,

4 and care of their parents. Absent a showing of parental unfitness, the government may

5 not keep children from their parents or refuse to release children into the custody of

6 their parents.

7

82. As a matter of both policy and practice, ORR does not make prompt and

8 continuous efforts toward family reunification and the release of children in its

9 custody. Instead, it delays or refuses to make determinations about whether proposed

10 custodians are or may be unfit.

11

83. As a matter of both policy and practice, ORR affords Plaintiffs and their

12 proposed class members little or no procedural protection against prolonged detention

13 on the ground that their parents or other proposed custodians are or may be unfit.

14 ORR’s nominal procedures for vetting detained children’s parents or other proposed

15 custodians do not appear in the Code of Federal Regulations, nor even in a semi-

16 permanent practice manual. Rather, they appear on ORR’s web page,

17 www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-

18 section-2 (last visited June 29, 2018), and are subject to change without prior notice

19 or opportunity for comment. Under its nominal procedures —

20

(a) ORR does not decide within any time certain whether a detained minor’s

21

parent or other proposed custodian is suitable;

22

(b) ORR does not provide a detained minor, or his or her parent or other

23

proposed custodian, an opportunity to inspect or rebut evidence

24

derogatory of the proposed custodian’s fitness;

25

(c) ORR does not afford a detained minor or his or her proposed custodian a

26

hearing before a neutral and detached decisionmaker either before or after

27

ORR declares a potential custodian unfit;

28

(d) Once ORR decides a proposed custodian is unsuitable, it need not inform

Complaint

24.

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1

a detained minor or the proposed custodian of its decision for up to 30

2

days;

3

(e) ORR allows detained minors no appeal or other administrative recourse

4

from its finding a proposed custodian unsuitable, though such a decision

5

nearly always prolongs the minor’s detention;

6

(f) Except for parents and legal guardians, ORR allows rejected custodians

7

no appeal from a decision declaring them unfit, which nearly always

8

prolongs an affected minor’s detention;

9

(g) As for parents and legal guardians, ORR’s policy requires them to submit

10

a written request to HHS’s Assistant Secretary for Children and Families

11

to be heard regarding ORR’s declaring them unfit, but a hearing need not

12

be convened within any time certain.

13

84. Whether a parent or other custodian is qualified to care for a child is a

14 matter generally committed to state and local governments. Plaintiffs are informed and

15 believe that in all fifty states and their subdivisions, children may not be detained for

16 want of a qualified custodian without affording them and/or their parents or other

17 potential custodians a prompt hearing before a judge or other neutral and detached

18 decisionmaker, during which allegations of unfitness are tested via trial-like

19 procedures and any ensuing finding of unsuitability must be based on competent

20 evidence.

21

85. In contrast, in refusing to release Plaintiffs and those similarly situated to

22 parents and other available custodians on grounds of fitness, ORR provides neither

23 Plaintiffs nor those similarly situated —

24

(a) an evidentiary hearing;

25

(b) the right to review or rebut adverse witnesses and evidence;

26

(c) appointed counsel, guardians ad litem, or interpreters;

27

(d) a finding of suitability or lack thereof by a neutral and detached decision-

28
Complaint

maker under defined and consistent legal standards;

25.

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1

(e) the right to a prompt determination of a proposed custodian’s fitness; or

2

(f) the right to appeal administratively adverse decisions.

3

86. In practice, ORR often refuses to decide whether a detained child’s

4 proposed custodian is fit, thereby needlessly prolonging detention and family

5 separation.

6

87. On information and belief, Plaintiffs allege that, to date, HHS’s Assistant

7 Secretary for Children and Families has never convened an actual hearing before a

8 neutral arbiter to review a decision by ORR declaring a detained child’s proposed

9 custodian unsuitable.

10

88. ORR’s procedures for determining whether parents and other proposed

11 custodians are suitable creates an unreasonable risk that Plaintiffs and those similarly

12 situated will be erroneously —

13

(a) subjected to prolonged detention;

14

(b) placed in overly restrictive settings that are not in their best interests;

15

(c) administered psychotropic medications; and

16

(d) separated from parents and family.

17

89. As a direct and proximate result of ORR’s torpid, opaque, and

18 perfunctory procedures for declaring detained children’s parents and other proposed

19 custodians unsuitable, Plaintiffs and those similarly situated have been and will be

20 erroneously—

21

(a) subjected to prolonged detention;

22

(b) placed in overly restrictive settings that are not in their best interests;

23

(c) administered psychotropic medications; and

24

(d) separated from parents and family.

25

90. The government’s refusing to release children to their parents’ custody,

26 or to the custody of adult siblings and other family members, deprives plaintiffs of

27 their fundamental rights without any reasonable justification or legitimate purpose,

28 violates the substantive and procedural components of the Due Process Clause, and

Complaint

26.

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1 violates the freedom of association clause of the First Amendment. In prolonging the

2 separation of children from their proposed custodians, Defendants also compromise

3 the short and long-term health of Plaintiffs and those similarly situated.

4 B. Defendants have violated Plaintiffs’ due process rights, the TVPRA, and the

5

Flores Settlement by placing them in unlicensed placements.

6

91. Definition 6 and paragraph 19 of the Flores Settlement require ORR to

7 place a detained child in a non-secure facility holding a state license to care for

8 dependent children except in circumstances enumerated in Settlement paragraph 21:

9 i.e., the child has committed a violent crime or non-petty delinquent act, has threatened

10 violence during federal custody, is an unusual escape-risk, or is so disruptive that

11 secure confinement is necessary to ensure the welfare of the minor or others.

12

92. Section 235(c)(2)(A) of the TVPRA similarly requires ORR to place

13 detained children promptly “in the least restrictive setting that is in the best interest of

14 the child . . .” and bars its placing a child “in a secure facility absent a determination

15 that the child poses a danger to self or others or has been charged with having

16 committed a criminal offense.”

17

93. TVPRA § 235(c)(2)(A) provides, “The placement of a child in a secure

18 facility shall be reviewed, at a minimum, on a monthly basis, in accordance with

19 procedures prescribed by the Secretary, to determine if such placement remains

20 warranted.” The TVPRA is otherwise silent with respect to what process is due when

21 ORR places or continues a child in an RTC, medium-secure or secure facility.

22

94. Federal law and policy recognize that both children and communities are

23 better off when children are not needlessly incarcerated. A vast body of research has

24 established that detaining children interferes with healthy development, exposes youth

25 to abuse, undermines educational attainment, makes children with mental health needs

26 worse off, and puts children at greater risk of self-harm. Juvenile detention facilities

27 often respond to threats of self-harm in ways that further endanger youth, such as by

28 placing them in isolation. Schooling children receive during detention is often

Complaint

27.

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1 substandard, which places them at serious disadvantage when they enter school after

2 having been detained for substantial periods. Research has demonstrated that

3 incarceration also exacerbates pre-existing trauma.

4

95. The vast majority of children who end up in secure custody through ORR

5 have never been charged, let alone convicted, of crimes in the U.S. or in their home

6 country. Often, ORR places the most vulnerable children—those with the greatest

7 mental health needs—in staff-secure, secure or RTC facilities. Prolonging the

8 detention of children with mental health needs in such facilities is profoundly

9 injurious. ORR’s detaining children in such facilities exacerbates mental health issues

10 to the point that ORR eventually consigns children to mental hospitals.

11

96. The Fifth Amendment’s Due Process Clause protects children’s freedom

12 from unnecessary physical restraint, including placement in RTCs, medium-secure or

13 secure facilities. ORR’s placing children in such facilities is constrained by due

14 process, which requires adequate procedural protections to ensure that ORR’s asserted

15 justification for such placement outweighs children’s constitutionally protected

16 interest in avoiding excessive physical restraint. Due process requires that ORR give

17 Plaintiffs and their proposed class members meaningful notice and an opportunity to

18 be heard before it places them in RTCs, medium-secure or secure facilities and an

19 ongoing review with commensurate protections every thirty days.

20

97. As a matter of policy and practice, Defendant ORR affords detained

21 children wholly inadequate procedural protection against erroneous placement in

22 RTCs, secure or medium-secure facilities. ORR’s procedures for initially placing a

23 child in an RTC, secure or medium-secure facility and for periodically reviewing the

24 need for such placements appear nowhere in the Code of Federal Regulations. Rather,

25 they appear on ORR’s web page and are subject to change without prior notice or

26 opportunity for public comment.

27

98. In practice, ORR’s placing children in RTCs, secure or medium-secure

28 facilities results from an opaque and peremptory process in which youth are summarily

Complaint

28.

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1 “stepped up” to such facilities without any meaningful opportunity to be heard, either

2 before or after being stepped up, regarding the reasons for placing them in such

3 facilities. In placing children in RTCs, secure and medium-secure facilities, ORR

4 provides neither Plaintiffs nor those similarly situated —

5

(a) an evidentiary hearing;

6

(b) notice of the placement decision or individualized reasoning therefor;

7

(c) an opportunity to present evidence and witnesses;

8

(d) the right to a neutral adjudicator;

9

(e) an opportunity to review or rebut adverse witnesses and evidence;

10

(f) the right to counsel, guardians ad litem, or interpreters;

11

(g) a finding of dangerousness or other adequate cause for such placement

12

under coherent and consistent legal standards;

13

(h) the right to appeal administratively from adverse decisions; or

14

(i) a monthly review of whether their placement in RTCs, medium-secure,

15

or secure facilities remains warranted.

16

99. Pursuant to paragraph 24A of the Flores Settlement and orders issued by

17 the District Court for the Central District of California, immigration judges may

18 review ORR’s decisions to continue detaining children in federal custody on grounds

19 they are dangerous or unusual flight-risks. ORR regularly places children in RTCs,

20 secure and medium-secure facilities on the ground that they are dangerous or unusual

21 flight-risks, contrary to immigration judges’ determinations that they are neither.

22

100. Plaintiffs are informed and believe that in all fifty states and their

23 subdivisions, it is unlawful to place children in RTCs, secure or medium-secure

24 facilities without affording them a prompt and meaningful opportunity to be heard

25 before a neutral and detached decisionmaker regarding the grounds for such

26 placement.

27

101. The lack of procedural protection against erroneous ORR decisions to

28 place children in RTCs, secure and medium-secure facilities creates an unreasonable

Complaint

29.

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1 risk that youth will be placed in overly restrictive settings against their best interests,

2 subjected to needless restrictions on their personal liberty, and unjustly suffer the

3 trauma and stigma of imprisonment. As a direct and proximate result of ORR’s

4 peremptorily consigning children to RTCs, secure and medium-secure facilities,

5 Plaintiffs and their proposed class members have been and are being erroneously:

6 (a) placed in restrictive settings against their best interests; (b) subjected to excessive

7 restrictions on their personal liberty; and (c) subjected to the trauma and stigma of

8 imprisonment.

9

102. Placement in RTCs, secure and medium-secure facilities further injures

10 Plaintiffs and those similarly situated because ORR, as a matter of policy and practice,

11 delays release to parents and other reputable custodians of youth whom it has ever

12 confined in such facilities, even when such placement is based on incomplete,

13 inaccurate, or erroneous evidence, and even if ORR subsequently transfers a child to

14 a non-secure dependent care facility.

15

103. As a matter of policy and practice, ORR refuses to release children whom

16 it has ever placed in a secure or medium-secure facility until and unless its director or

17 his designee approves release. In practice, this policy prolongs non-dangerous

18 children’s detention for weeks or months notwithstanding that parents or other

19 reputable custodians are available to care for them.

20

104. As a matter of policy and practice, ORR refuses to release children whom

21 it has placed in RTCs until and unless RTC medical personnel declare the child

22 mentally fit. ORR affords children no hearing or other meaningful procedural recourse

23 when RTC medical personnel refuse to declare them mentally fit. As a direct and

24 proximate result of said policy and practice, children placed in RTCs suffer the

25 functional equivalent of indefinite civil commitment without due process of law.

26

105. On information and belief, Plaintiffs further allege that ORR regularly

27 insists that the parents and other potential custodians possess novel and superfluous

28 qualifications to receive custody of children whom ORR has ever placed in an RTC,

Complaint

30.

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1 secure or medium-secure facility. Such qualifications include being cancer-free,

2 having income sufficient to supply released children with psychotropic drugs,

3 repetitive fingerprinting, and supplying fingerprints of third parties who do not reside

4 in the proposed custodian’s home. As a direct and proximate result of said policy and

5 practice, children placed in RTCs, secure and medium-secure facilities have been and

6 are being erroneously: (a) placed in restrictive settings against their best interests; and

7 (b) subjected to excessive restrictions on their personal liberty.

8 C. Defendants have subjected Plaintiffs to the administration of psychotropic drugs

9

without having procedural safeguards in place, including obtaining informed

10

consent.

11

106. Paragraph 7 of the Flores Settlement provides in pertinent part: “The INS

12 shall assess minors to determine if they have special needs ….” A child may have

13 special needs “due to drug or alcohol abuse, serious emotional disturbance, mental

14 illness or retardation, or a physical condition or chronic illness that requires special

15 services or treatment.” Paragraph 12 of the Flores Settlement provides in pertinent

16 part: “Following arrest, the INS shall hold minors in facilities that are safe and sanitary

17 and that are consistent with the INS’s concern for the particular vulnerability of

18 minors.” The Flores Settlement further provides that facilities in which ORR places

19 children with mental health needs must “meet those standards . . . set forth in Exhibit

20 1.” Settlement ¶¶ 6, 8. Exhibit 1 requires that licensed programs “comply with all

21 applicable state child welfare laws and regulations . . . and shall provide or arrange for

22 the following services for each minor in its care: . . . appropriate mental health

23 interventions when necessary.”

24

107. Section 235(c)(2) of the TVPRA requires ORR to provide children in its

25 custody with safe and secure placements. Placements that involve the unnecessary or

26 coerced administration of psychotropic medications are neither “safe” nor “secure.”

27

108. The Flores Settlement incorporates by reference relevant law of the state

28 in which children are placed and thereby requires ORR to comply with applicable child

Complaint

31.

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1 welfare laws and regulations when administering psychotropic medications to

2 Plaintiffs and those similarly situated. Plaintiffs are informed and believe, and on such

3 basis allege, that the laws of all states in which ORR places Plaintiffs and those

4 similarly situated require ORR to obtain informed parental consent or its lawful

5 equivalent when administering psychotropic medications to minors.

6

109. For example, Texas Administrative Code sections 748.2001(b),

7 748.2253, 748.2255 require informed consent be provided prior to administering

8 psychotropic drugs to children in state custody. Texas Family Code section 266.004(a)

9 provides that before children in the care of the Texas Department of Family and

10 Protective Services may receive medical care, someone authorized by a court must

11 provide consent.

12

110. Similarly, California Welfare and Institutions Code sections 369.5(a)(1)

13 and 739.5(a)(1) provide that only a juvenile court may lawfully authorize the

14 administration of psychotropic medication to children who are in state custody, unless

15 the juvenile court specifically authorizes a parent to do so after making specific

16 findings regarding the parent’s fitness and capacity to do so.

17

111. Plaintiffs and their proposed class members have a substantial liberty

18 interest protected by the Due Process Clause of the Fifth Amendment in being free

19 from the unauthorized and unnecessary administration of psychotropic medications.

20 Plaintiffs are entitled to constitutionally sufficient procedures to protect against

21 erroneous deprivation of this interest.

22

112. Psychotropic medications are powerful drugs that act on the central

23 nervous system and affect cognition, emotions, and behavior. Such drugs should only

24 be administered in combination with other mental health supports to treat specifically

25 diagnosed psychiatric illnesses and mental health disorders. Few psychotropic

26 medications have been approved by the FDA as safe and effective to treat children,

27 and careful oversight and monitoring is accordingly required when children are given

28 such drugs. Such medications should not be used as chemical straitjackets to control

Complaint

32.

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1 behavior.

2

113. Serious, long-lasting adverse effects are common for individuals given

3 psychotropic medications. The full risks of giving such drugs to children are not well

4 understood, although psychotropics are known to cause serious and sometimes

5 irreversible side effects in adults, including psychosis, seizures, movement disorders,

6 suicidal ideation, aggression, extreme weight gain, and organ damage. Increasing the

7 number of psychotropic drugs children take concurrently increases the likelihood of

8 adverse reactions and long-term side effects. Close and continuing scrutiny of children

9 given such medications is therefore critical.

10

114. As a matter of policy and practice, ORR authorizes and condones the

11 administration of psychotropic drugs to children entirely without procedural

12 safeguards, including informed parental consent. Rather, ORR authorizes detention

13 facility staff to “consent” to the involuntary, long-term administration of psychotropic

14 drugs to juveniles in their parents’ stead, even when such parents are readily available

15 to ORR and/or the detention facility to give or withhold such consent.

16

115. As a matter of policy and practice, ORR also fails to provide any

17 substantial procedural safeguards against unnecessary or unauthorized administration

18 of psychotropic drugs to children in its custody. At a minimum, such safeguards must

19 include a neutral decisionmaker’s approval of the initial decision to administer

20 psychotropics to a child, as well as periodic reviews to ensure that youth are not

21 administered psychotropic medications unnecessarily, for too long, at harmful dosages

22 or in harmful combinations.

23

116. On information and belief, Plaintiffs allege that ORR failed to have any

24 of these procedural safeguards in place prior to administering psychotropic

25 medications to the named Plaintiffs. In addition, the psychiatrist who currently

26 prescribes psychotropic medications to children at ORR’s Shiloh RTC, Dr. Javier

27 Ruíz-Nazario, is not certified by the Texas Medical Board to treat children and

28 adolescents. Dr. Ruíz-Nazario has also received payments from drug companies that

Complaint

33.

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1 manufacture psychotropic drugs given to children at Shiloh RTC.

2 D. Defendants have obstructed Plaintiffs’ access to counsel.

3

117. Paragraph 24A of the Flores Settlement requires ORR to give detained

4 children a hearing before an immigration judge to review whether they are dangerous

5 or likely to abscond. Settlement paragraph 24D provides that Defendants must

6 “promptly provide each minor not released with . . . the list of free legal services

7 providers compiled pursuant to INS regulation . . . .” Exhibit 1, paragraph 14 of the

8 Flores Settlement requires licensed facilities in which Defendants detain minors to

9 provide “information regarding the availability of free legal assistance, the right to be

10 represented by counsel at no expense to the government . . . .” Exhibit 6 of the Flores

11 Settlement advises detained minors, “If you believe that you have not been properly

12 placed or that you have been treated improperly, you may ask a federal judge to review

13 your case. You may call a lawyer to help you do this. If you cannot afford a lawyer,

14 you may call one from the list of free legal services given to you with this form.”

15

118. Section 235(c)(5) of the TVPRA directs Defendant HHS Secretary to

16 “ensure, to the greatest extent practicable and consistent with section 292 of the

17 Immigration and Nationality Act (8 U.S.C. § 1362), that all unaccompanied alien

18 children who are or have been in the custody of the Secretary or the Secretary of

19 Homeland Security, and who are not [from contiguous countries], have counsel to

20 represent them in legal proceedings or matters and protect them from

21 mistreatment . . . .” Section 279(b)(A) of the HSA makes ORR responsible for

22 “developing a plan to be submitted to Congress on how to ensure that qualified and

23 independent legal counsel is timely appointed to represent the interests of each such

24 [unaccompanied alien] child . . . .” Immigration regulations, including 8 C.F.R.

25 §§ 287.3(c), 1003.62, 1240.10(a)(2) and 1292.1 et seq., generally guarantee Plaintiffs

26 and their proposed class members the right to be represented by retained and pro bono

27 counsel in proceedings before U.S. Citizenship and Immigration Services and the

28 Executive Office for Immigration Review.

Complaint

34.

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1

119. In furtherance of TVPRA § 235(c)(5), Defendant HHS contracts with the

2 Vera Institute of Justice (“VIJ”), a non-profit organization, to coordinate the delivery

3 of free legal services to unaccompanied children from non-contiguous countries who

4 are or have been in ORR custody. VIJ in turn subcontracts with non-profit legal aid

5 providers to counsel and represent such children in applying for affirmative

6 immigration benefits, such as asylum or Special Immigrant Juvenile Status, and in

7 asserting other defenses against removal.

8

120. In many regions of the country, VIJ-funded legal services providers are

9 the only legal counsel available to juveniles in ORR custody. Plaintiffs and the

10 members of the proposed class are almost uniformly indigent, speak little or no

11 English, and have little or no ability to represent themselves in hearings pursuant to

12 paragraph 24A of the Flores Settlement or in any other legal proceedings involving

13 ORR’s custody, release, placement or medication decisions.

14

121. On information and belief, ORR has no eligibility standards for providing

15 VIJ-funded legal services to detained children. Rather, ORR exercises opaque and

16 arbitrary discretion to prescribe those legal matters or proceedings in which VIJ-

17 funded legal providers may represent detained children and those in which they may

18 not.

19

122. As a matter of policy and practice, ORR routinely bars VIJ-funded legal

20 services providers from representing unaccompanied children from non-contiguous

21 countries in legal proceedings involving ORR’s custody, release, placement, and

22 medication decisions, even when such legal services providers have the time and

23 desire to undertake such representation.

24

123. Legal proceedings involving ORR’s custody, release, placement, and

25 medication decisions, including hearings pursuant to paragraph 24A of the Flores

26 Settlement, are “legal proceedings or matters” within the meaning of TVPRA

27 § 235(c)(5).

28

124. By blocking VIJ-funded legal services providers from representing

Complaint

35.

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1 children in legal proceedings involving ORR’s custody, release, placement and

2 medication decisions, ORR forces Plaintiffs and those similarly situated to fend for

3 themselves in a complex and foreign adversarial legal system with little hope of

4 prevailing. Without meaningful access to counsel, Plaintiffs and those similarly

5 situated are denied a fair chance of succeeding in legal challenges to ORR’s custody,

6 release, placement and medication decisions and, a fortiori, suffer prolonged detention

7 and the harms extended confinement and family separation inflicts. ORR deprives

8 youth of liberty for years, which is comparable to imprisonment for a felony

9 conviction.

10

125. In blocking Plaintiffs and those similarly situated from receiving

11 assistance in legal matters and proceedings involving ORR’s custody, placement,

12 medication, and release decisions, ORR acts arbitrarily, capriciously, abusively of

13 discretion, and contrary to children’s best interests, and obstructs lawyers from

14 discharging their duty of zealous representation.

15

126. As a direct and proximate result of ORR’s blocking VIJ-funded legal

16 services providers from representing Plaintiffs and those similarly situated children in

17 legal proceedings involving ORR’s custody, release, placement, or medication

18 decisions, including hearings pursuant to paragraph 24A of the Flores Settlement,

19 Plaintiffs and those similarly situated are being: (a) improperly administered

20 psychotropic drugs; (b) erroneously denied placement in the least restrictive setting

21 that is in their best interest; and (c) erroneously denied release to available custodians

22 without unnecessary delay.

23

VII.

24

IRREPARABLE INJURY

25

127. Plaintiffs have suffered and will continue to suffer irreparable harm

26 because of Defendants’ policies and practices as challenged herein. ORR has deprived

27 and will continue to deprive Plaintiffs and those similarly situated of their rights under

28 the First and Fifth Amendments, the TVPRA, and the Flores Settlement. ORR

Complaint

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1 confines children to jail-like settings without affording them a meaningful or timely

2 opportunity to be heard regarding the reasons for such placement; prolongs children’s

3 detention on the ground that their parents or other available custodians are or may be

4 unfit, while affording neither detained children nor their proposed custodians a

5 meaningful or timely opportunity to be heard regarding a proposed custodian’s fitness;

6 places children in facilities in which it knows they will be administered powerful

7 psychotropic medications without procedural safeguards; and blocks lawyers from

8 representing detained children with respect to placement, administration of

9 psychotropic medications, or release to available custodians. In doing so, Defendants

10 have profoundly undermined the health and well-being of Plaintiffs and those similarly

11 situated along multiple domains, as described above.

12

VIII.

13

FIRST CLAIM FOR RELIEF

14

[DENIAL OF DUE PROCESS: DETERMINING CUSTODIANS’ FITNESS]

15

128. Plaintiffs hereby incorporate by reference Paragraphs 1-127 of this

16 Complaint as though fully set forth here.

17

129. As a matter of policy and practice Defendants unreasonably and

18 unnecessarily delay or refuse to release children to parents, close family members, and

19 other available custodians on the ostensible grounds that such custodians are or may

20 be unfit, and they do so without affording detained minors or their proposed custodians

21 a timely, prompt, or meaningful opportunity to be heard regarding such custodians’

22 fitness. Defendants’ policies and practices violate the fundamental rights of Plaintiffs

23 and those similarly situated and demonstrate a deliberate indifference to risk of harm

24 to children.

25

130. Such policy and practice individually and collectively violate paragraphs

26 14 and 18 of the Flores Settlement, TVPRA § 235(c)(2)(A), the Administrative

27 Procedure Act, 5 U.S.C. §§ 701 et seq., the procedural and substantive components of

28 the Due Process Clause of the Fifth Amendment of the United States Constitution, and

Complaint

37.

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1 the Freedom of Association Clause of the First Amendment of the United States

2 Constitution.

3

IX.

4

SECOND CLAIM FOR RELIEF

5

[DENIAL OF DUE PROCESS: RESTRICTIVE PLACEMENT]

6

131. Plaintiffs hereby incorporate by reference Paragraphs 1-127 of this

7 Complaint as though fully set forth here.

8

132. As a matter of policy and practice, Defendants place Plaintiffs and those

9 similarly situated in RTCs, secure facilities, and medium-secure facilities without

10 affording them a meaningful opportunity to be heard either prior or subsequent to such

11 placement.

12

133. Such policy and practice individually and collectively violate Definition

13 6 and paragraph 19 of the Flores Settlement, TVPRA § 235(c)(2)(A), the

14 Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., and the Due Process Clause of

15 the Fifth Amendment to the United States Constitution.

16

X.

17

THIRD CLAIM FOR RELIEF

18

[UNLAWFUL ADMINISTRATION OF PSYCHOTROPIC DRUGS]

19

134. Plaintiffs hereby incorporate by reference Paragraphs 1-127 of this

20 Complaint as though fully set forth here.

21

135. As a matter of policy and practice, Defendants administer children

22 psychotropic drugs without procedural safeguards, including: obtaining informed

23 consent or the lawful equivalent; involving a neutral decision maker in the initial

24 determination of whether to prescribe psychotropic medications to children in ORR

25 custody; and conducting a periodic review of such treatment decisions to ensure that

26 youth are not administered psychotropic medications unnecessarily or at harmful

27 dosage levels or in harmful combinations.

28

136. Such policy and practice individually and collectively violate paragraphs

Complaint

38.

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1 6, 8, 12, and 19 and Exhibit 1 of the Flores Settlement, the TVPRA, the Administrative

2 Procedure Act, 5 U.S.C. §§ 501 et seq., and the Due Process Clause of the Fifth

3 Amendment to the United States Constitution.

4

XI.

5

FOURTH CLAIM FOR RELIEF

6 [BLOCKING LEGAL ASSISTANCE IN MATTERS RELATING TO CUSTODY,

7

MEDICATION AND RELEASE]

8

137. Plaintiffs hereby incorporate by reference Paragraphs 1-127 of this

9 Complaint as though fully set forth here.

10

138. As a matter of policy and practice, ORR blocks VIJ-funded lawyers from

11 representing Plaintiffs and those similarly situated in legal matters and proceedings

12 involving ORR’s decisions regarding custody, release, medication, and placement.

13

139. Such policy and practice individually and collectively violate paragraphs

14 24A and 24D, Exhibit 1 paragraph 14, and Exhibit 6 of the Flores Settlement, TVPRA

15 § 235(c)(5), HSA § 279(b)(A), 8 C.F.R. §§ 287.3(c), 1003.62, 1240.10(a)(2) and

16 1292.1 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 501 et seq., and the Due

17 Process Clause of the Fifth Amendment to the United States Constitution.

18

XII.

19

PRAYER FOR RELIEF

20

WHEREFORE, Plaintiffs pray that this Court —

21

1. assume jurisdiction of this cause;

22

2. certify this case as a class action on behalf of the class proposed herein;

23

3. enter declaratory judgment that Defendants’ policies and practices as

24 challenged herein are unlawful;

25

4. issue temporary and permanent injunctions enjoining Defendants from —

26

(a) denying Plaintiffs or their proposed class members due process in

27

evaluating the fitness of parents and other available custodians;

28

(b) denying Plaintiffs or their class members due process in placing them in

Complaint

39.

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1

RTCs, medium-secure or secure facilities;

2

(c) administering psychotropic drugs to Plaintiffs or their class members in

3

non-exigent circumstances without parental consent or the lawful

4

equivalent thereof;

5

(d) blocking Plaintiffs or their class members from receiving legal assistance

6

pursuant to 8 U.S.C. § 1232(c)(5) in hearings in legal proceedings or

7

matters involving ORR’s decisions regarding custody, placement, or

8

release;

9

5. award the named Plaintiffs and their class members nominal damages

10 pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

11 U.S. 388 (1971);

12

6. award Plaintiffs costs and attorney’s fees pursuant to the Equal Access to

13 Justice Act, 28 U.S.C. § 2412; and

14

7. issue such further relief as the Court deems just and proper.

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Complaint

40.

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1 Dated: June 29, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Complaint

Respectfully submitted, CARLOS HOLGUÍN Center for Human Rights & Constitutional Law HOLLY COOPER CARTER WHITE University of California Davis School of Law LEECIA WELCH NEHA DESAI POONAM JUNEJA CRYSTAL ADAMS National Center for Youth Law SUMMER WYNN MARY KATHRYN KELLEY JON CIESLAK Cooley LLP
/s/ Carlos R. Holguín Carlos R. Holguín
/s/ Holly Cooper Holly Cooper
/s/ Leecia Welch Leecia Welch
/s/ Summer Wynn Summer Wynn
Attorneys for Plaintiffs

41.

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

 
 Case 2:18-cv-05741-DMG-PLA Document 79 Filed 09/06/18 Page 1 of 9 Page ID #:3042

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 1 of 9

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFF LUCAS R.’S MOTION FOR PRELIMINARY INJUNCTION [29]

On June 29, 2018, Plaintiffs Lucas R., Daniela Marisol T., Miguel Angel S., Gabriela N., Jaime D., San Fernando Valley Refugee Children Center, Inc., and Unaccompanied Central American Refugee Empowerment filed a Class Action Complaint for Declaratory, Injunctive, and Nominal Monetary Relief (“CAC”) against Alex Azar, the Secretary of the U.S. Department of Health and Human Services (“HHS”), and E. Scott Lloyd, the Director of the Office of Refugee Resettlement (“ORR”). [Doc. # 1.] The CAC alleges that ORR maintains certain policies and/or practices relating to the detention of alien minors that violate (inter alia) the Due Process Clause of the Fifth Amendment, the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), and the consent decree issued in Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal.) [Doc. # 101] (“Flores Agreement”). CAC at 1–5, 39–41.1

On August 3, 2018, Plaintiff Lucas R. filed a motion for preliminary injunction, wherein he seeks an order requiring ORR to immediately release him to Madelyn R., his next friend and sister. [Doc. # 29.] The motion for preliminary injunctive relief has since been fully briefed. [Doc. ## 44, 53.] Having duly considered the parties’ written submissions, the Court DENIES, without prejudice, Lucas R.’s motion for the reasons set forth below.

I. FACTUAL BACKGROUND

Lucas R. is a native and citizen of Guatemala who entered the United States in February 2018. See CAC at ¶ 10; Opp’n re Lucas R.’s MPI at 2; Pls.’ Class Cert. Mot., Ex. 21 at ¶ 2 (Lucas R. Decl.) [Doc. # 35-12]; CAC at ¶ 21; Opp’n re Lucas R.’s MPI at 2; Opp’n re Lucas R.’s MPI, Ex. 45 at ¶ 7 (De La Cruz Decl.) [Doc. # 44-1]. On or about February 12, 2018, ORR assumed custody of Lucas and placed him in the Southwest Key Hacienda del Sol shelter in

1 All page references herein are to page numbers inserted by the CM/ECF system.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 2 of 9

Youngtown, Arizona.2 See Lucas R’s. MPI, Ex. 33 at 2 (Admission Record) [Doc. # 39-1]; Opp’n re Lucas R.’s MPI, Ex. 45 at ¶ 8 (De La Cruz Decl.) [Doc. # 44-1]. On May 21, 2018, ORR transferred Lucas to Shiloh Residential Treatment Center (“Shiloh RTC”) in Manvel, Texas. Lucas R.’s MPI, Ex. 42 at 2–3 (ORR Transfer Request and Tracking Form) [Doc. # 39-9]. To this day, ORR continues to detain Lucas at Shiloh RTC. See Lucas R.’s MPI at 9; Opp’n re Lucas R.’s MPI at 10–11; Opp’n re Lucas R.’s MPI, Ex. 45 at ¶¶ 13, 20, 22 (De La Cruz Decl.) [Doc. # 441].

In mid-February 2018, Madelyn R. asked ORR to release Lucas to her custody. See Pls.’ Class Cert. Mot., Ex. 22 at ¶ 6 (Madelyn R. Decl.) [Doc. # 35-13]. In March 2018, ORR conducted a home study to determine whether Madelyn was a suitable custodian for Lucas. See id. at ¶ 10. The social worker visited Madelyn’s home on several more occasions over the next two weeks. See id. at ¶¶ 11–12. Approximately one month after the social worker’s final visit, she informed Madelyn that ORR denied her request because an individual suspected of being a resident of the home had refused to be fingerprinted. See id. at ¶ 13. Although the social worker stated that this decision was final, she failed to provide Madelyn with a written decision or explain whether Madelyn could appeal ORR’s denial of her request. See id.

Lucas claims that he is entitled to release from custody under Paragraphs 14 and 18 of the Flores Agreement, which require ORR to release a minor from its custody without unnecessary delay, see Flores Agreement at ¶¶ 14, 18, and under Section 235(c)(2)(A) of the TVPRA, which obligates ORR to promptly place an unaccompanied alien child in the least restrictive setting that is in the best interest of the child, see 8 U.S.C. § 1232(c)(2)(A). Lucas further contends that ORR has deprived him of his constitutional rights to physical liberty, family unity, and familial association without due process of law by failing to provide Lucas or Madelyn with “any meaningful process by which they may contest ORR’s [decision that] Madelyn [is] an unfit custodian.” See Lucas R.’s MPI at 23–26. Lucas argues that these constitutional violations warrant his immediate release to Madelyn because ORR “cannot be reasonably expected to fashion” an adequate hearing procedure “without protracting Lucas’s detention even more and causing him even greater irreparable injury.” See Reply re Lucas R.’s MPI at 13–14.

2 The TVPRA provides that HHS is responsible for the custody of all unaccompanied alien children. See 8 U.S.C. § 1232(b)(1). ORR is the division of HHS that has been entrusted with that responsibility. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1178 (N.D. Cal. 2017). There is no dispute that Lucas is an unaccompanied alien child. See Compl. at ¶ 10; Opp’n re Lucas R.’s MPI at 2.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 3 of 9

II. LEGAL STANDARD

A plaintiff seeking preliminary injunctive relief must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) an injunction is in the public interest. Toyo Tire Holdings of Ams. Inc. v. Cont’l Tire N. Am., Inc., 609 F.3d 975, 982 (9th Cir. 2010) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). An injunction is also appropriate when a plaintiff raises “serious questions going to the merits,” demonstrates that “the balance of hardships tips sharply in [his or her] favor,” and “shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)). “A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.” Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983).

III. DISCUSSION

Lucas R. identifies three jurisdictional bases for his request for preliminary injunctive relief: (1) the Flores Agreement, (2) 28 U.S.C. section 2241 (i.e., the habeas statute for federal prisoners), and (3) the Administrative Procedure Act (“APA”).3 See Reply re Lucas R.’s MPI at 9–17. None of these authorities, however, permits this Court to grant Lucas the relief he seeks— i.e., his release from ORR’s custody. See Notice of Lucas R.’s MPI at 3 [Doc. # 29]; Lucas R.’s MPI at 6 (“Plaintiffs seek a preliminary injunction requiring [Lucas’s] immediate release.”).

3 Lucas R. also argues that the TVPRA and 28 U.S.C. section 1331 “vest[] th[is] Court with full authority to compel ORR to place [him] in the least restrictive setting consistent with his best interests and to do so without further delay.” See Reply re Lucas R.’s MPI at 15. Admittedly, the TVPRA does provide that “an unaccompanied alien child in the custody of [ORR] shall be promptly placed in the least restrictive setting that is in the best interest of the child.” See 8 U.S.C. § 1232(c)(2)(A). Nonetheless, Lucas. R. does not identify any provision of the TVPRA that confers jurisdiction on this Court to release him from custody, nor is it apparent that any such provision exists. Further, 28 U.S.C. section 1331 does not authorize this Court to compel Lucas R.’s release. Rather, it simply confers jurisdiction over causes of action created by federal law and certain state law claims that are predicated on federal law. See
Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090, 1100 (9th Cir. 2008). Moreover, Section 1331, standing alone, does not waive ORR’s sovereign immunity. See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (“Section 1331 does not waive the government’s sovereign immunity from suit.”); FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 4 of 9

A. The Flores Agreement Does Not Authorize This Court to Release Lucas R.

Lucas R. asserts that this Court has jurisdiction to hear his motion for preliminary injunction pursuant to Paragraph 37 of the Flores Agreement. See Reply re Lucas R.’s MPI at 9– 12. Paragraph 37 provides in pertinent part: “This paragraph provides for the enforcement, in this District Court, of the provisions of this Agreement except for claims brought under Paragraph 24.” Flores Agreement at ¶ 37.

In turn, Paragraph 24B of the Agreement provides:

Any minor who disagrees with the INS’s determination to place that minor in a particular type of facility, or who asserts that the licensed program in which he or she has been placed does not comply with the standards set forth in Exhibit 1 attached hereto, may seek judicial review in any United States District Court with jurisdiction and venue over the matter to challenge that placement determination or to allege noncompliance with the standards set forth in Exhibit 1. In such an action, the United States District Court shall be limited to entering an order solely affecting the individual claims of the minor bringing the action.

Id. at ¶ 24B.

Lucas R. argues that Paragraph 24B is inapplicable because it governs only challenges to a minor’s placement in a particular ORR facility. See Reply re Lucas R.’s MPI at 9 & n.2. An objection to ORR’s refusal to release a particular Flores Class Member from its custody, however, also constitutes a challenge to the agency’s decision to place the Class Member in an ORR facility rather than release the minor to a proposed custodian. This conclusion is reinforced by certain provisions of the Flores Agreement that indicate that release and placement decisions are not mutually exclusive. See, e.g., Flores Agreement at ¶ 11 (providing that the purpose of the Agreement is to ensure that ORR “place[s] each detained minor in the least restrictive setting appropriate to the minor’s age and special needs,” which suggests that declining to release a minor is a “placement” decision); see also Powerine Oil Co. v. Superior Court of L.A. Cty., 37 Cal. 4th 377, 391 (2003) (“[L]anguage in a contract must be construed in the context of that instrument as a whole . . . .” (quoting Bank of the West v. Superior Court of Contra Costa Cty., 2 Cal. 4th 1254, 1265 (1992)) (internal quotation marks omitted));4 8 U.S.C. § 1232(c)(2)(A) (providing that ORR shall review “[t]he placement of a child in a secure facility” on a monthly basis, implying that continuing to detain a minor is a “placement” decision). In fact, in an attempt to show that a

4 California contract law governs the interpretation of the Flores Agreement. See O’Neil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 5 of 9

petition for writ of habeas corpus is not the only means by which he can obtain the relief sought, Lucas concedes that he challenges ORR’s decision not to place him in the least restrictive setting— i.e., in the custody of Madelyn R. See Reply re Lucas R.’s MPI at 12 (“[Lucas R.’s] claim that ORR’s refusing to place him with Madelyn violates the TVPRA is not about ‘release’ at all. Rather, it is about placement in the least restrictive setting consistent with his best interests.” (emphasis added)); see also Proposed Order re Lucas R.’s MPI at 3 (“IT IS ORDERED that Defendants shall place Lucas with his sister, Madelyn R., by no later than September 3, 2018.” (emphasis added)) [Doc. # 53-4]. It follows that no matter how Lucas chooses to frame the relief he seeks, it falls within the scope of Paragraph 24B and is excluded from Paragraph 37’s general grant of jurisdiction to this Court.

In arriving at this conclusion, the Court does not suggest that all disputes relating to the release of Flores Class Members must be brought in the “United States District Court with jurisdiction and venue over the matter[.]” Flores Agreement at ¶ 24B. The text of Paragraphs 24B and 37 establishes that: (1) such courts have the exclusive authority to hear a particular minor’s assertion that he or she should be released from ORR custody or afforded the benefits of a licensed program, and (2) this Court is empowered to remedy systemic violations of the Agreement that affect multiple Class Members (e.g., a class-wide challenge to an ORR policy affecting the release rights of all minors in the agency’s custody based on the nationwide standards of the Flores Agreement). Specifically, Paragraph 24B discusses “that minor[’s]” (i.e., the minor bringing a claim covered by that provision) placement and Exhibit 1 challenges, and provides that the district court hearing those claims “shall be limited to entering an order solely affecting the individual claims of the minor bringing the action.” See id. (emphasis added); see also MacKinnon v. Truck Ins. Exch., 31 Cal. 4th 635, 653 (2003) (holding that the “plain meaning” of a contract term is controlling); Flores v. Lynch, 828 F.3d 898, 903 (9th Cir. 2016) (“The [Flores Agreement] generally provides for the enforcement in the Central District of California, but allows individual challenges to placement or detention conditions to be brought in any district court with jurisdiction and venue.” (emphasis added) (citations omitted) (citing Flores Agreement at ¶¶ 24B, 37)).

The apparent purpose of Paragraph 24B further supports this interpretation. See MacKinnon, 31 Cal. 4th at 653 (holding that the “purpose” of a clause is relevant to its interpretation, although it is not determinative). If a minor asserts that he or she should be released (e.g., because a particular custodian is suitable) or that he or she has been denied the protections of Exhibit 1 to the Agreement (e.g., the class member was administered psychotropic medication in violation of state child welfare laws), then a court must undertake an individualized (as opposed to class-wide) analysis of such claims. In such cases, the convenience of the parties and witnesses

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 6 of 9

would most often weigh in favor of requiring the minor to bring the action in one particular forum—i.e., the district court that otherwise has jurisdiction and venue.5

In sum, the Court lacks jurisdiction over Lucas R.’s claim that he is entitled to release under the Flores Agreement because it does not fall within the scope of Paragraph 37. Rather, his claim is governed by Paragraph 24B, and must therefore be brought in the “United States District Court with jurisdiction and venue over the matter[.]” See Flores Agreement at ¶ 24B.

B. This Court Lacks Jurisdiction to Release Lucas R. Under 28 U.S.C. § 2241

“[I]n habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.”6 See Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004) (emphasis added). The rationale for this so-called “immediate custodian rule” is that the habeas statute “contemplate[s] a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge that he may be liberated if no sufficient reason is shown to the contrary.” See id. at 435 (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)) (internal quotation marks omitted). In cases in which this rule applies, only the district court with territorial jurisdiction over the custodian may entertain a habeas petition. See id. at 436, 442–47 (holding that the U.S. District Court for the District of South Carolina had exclusive jurisdiction over a habeas petition because that was the location of the commander of the brig in which Padilla was confined).

Although Rumsfeld did not explicitly decide whether the immediate custodian rule applies to habeas petitions filed by detained aliens, see id. at 435–36 & n.8, “[t]here is no compelling distinction between criminal custody and immigration custody” that warrants a departure from the default rule. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1185 (N.D. Cal. 2017); see also Drakoulis v. Ashcroft, 356 F. Supp. 2d 367, 369–71 (S.D.N.Y. 2005) (applying the immediate custodian rule to a habeas petition filed by an alien, which requested release from the custody of Immigration and Customs and Enforcement); Deng v. Garcia, 356 F. Supp. 2d 367, 374–75 (E.D.N.Y. 2005) (same). If the immediate custodian rule did not apply to the latter, then any alien

5 If a minor raises such claims in a habeas petition, then the appropriate forum is the district in which the immediate custodian is located. See infra Part III.B; cf. 28 U.S.C. § 2241(c)(1) (“The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody under or by color of the authority of the United States . . . .”).

6 Although Padilla did not define the precise contours of “core challenges,” the Court held that a request for release from custody constitutes such a challenge. See Rumsfeld v. Padilla, 542 U.S. 426, 438 (2004) (“[T]he traditional rule [is] that a prisoner seeking release from confinement must sue his ‘jailer.’”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 7 of 9

could name a high-level supervisory official (e.g., the HHS Secretary or the Director of ORR) as a respondent, “a result ‘the statutory language, established practice, and [Supreme Court] precedent’ counsel against.” See Saravia, 280 F. Supp. 3d at 1187 (alteration in original) (quoting Padilla, 542 U.S. at 439–40). Additionally, if an alien is detained by a state, local, or private entity at the behest of the federal government, then the “immediate custodian” is “the federal official tasked with ensuring that [the facility] complies with the requirements of its contract . . . .” See id. at 1186. This is because the alien is in custody “pursuant to the power and authority of the federal government[,]” which is authorized to produce the alien before the court. See id. Moreover, the state, local, or private entity has less incentive to defend the detention of the alien than does the federal official charged with overseeing the contract with the facility. See id.

The non-binding decisions that Lucas relies upon for the proposition that the immediate custodian rule does not apply to immigration cases are either unpersuasive or arise in sharply distinguishable contexts. Bogarin-Flores v. Holder, No. CV 12-0399 JAH(WMc), 2012 WL 3283287 (S.D. Cal. Aug. 10, 2012), declined to apply the immediate custodian rule because the warden of the private detention facility at issue had no legal authority to release the petitioner and no binding Ninth Circuit authority explicitly holds that the rule applies in the immigration context. See id. at *1–2. Yet, Padilla rejected the proposition that the proper respondent is an individual who exercises “legal control” over the petitioner. 542 U.S. at 439 (“In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent.”). As Saravia points out, the federal official responsible for enforcing the contract—and not the warden of a private contract facility—is the immediate custodian. See Saravia, 280 F. Supp. 3d at 1186–87 (concluding that the federal official responsible for enforcing the contract “exercises more immediate control over a contract facility than the Attorney General or another department head”). Furthermore, the absence of direct controlling authority is not a persuasive reason to depart from Padilla’s “default rule.” See, e.g., Bracamontes-Reyes v. Sessions, No. CV 18-01301-PHX-DLR (JZB), 2018 U.S. Dist. LEXIS 76756, at *4 (D. Ariz. May 4, 2018) (declining to apply the immediate custodian rule simply because of “the absence of any Ninth Circuit authority precluding [the alien] from naming the Attorney General, the Secretary of Homeland Security, or the ICE Phoenix Field Office Director as Respondents”).

Further, Rivera v. Holder, 307 F.R.D. 539 (W.D. Wash. 2015), does not mandate a departure from the default rule because that case did not involve a “core” habeas claim. There, the plaintiff challenged a policy under which all requests for conditional parole were denied, and she sought a class-wide order granting aliens new bond hearings in which immigration judges would properly consider such requests. See id. at 543–44, 548 & n.1. This distinction between core and non-core habeas challenges is essential because Padilla explicitly held that “the immediate

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 8 of 9

physical custodian rule, by its terms, does not apply when a habeas petitioner challenges something other than his present physical confinement.” See Padilla, 542 U.S. at 438; see also Saravia, 280 F. Supp. 3d at 1180–82, 1190 (concluding that the immediate custodian was the proper respondent for a habeas petition seeking release from custody, but that she was not the proper defendant on a claim requesting a hearing before an immigration judge).

Accordingly, the Court concludes that the immediate custodian rule applies to Lucas R.’s request for on order releasing him from ORR’s custody. Saravia found that where, as here, ORR detained a minor in a facility operated by a contractor, see Lucas R.’s MPI at 15 n.3; Opp’n re Lucas R.’s MPI at 10, the immediate custodian was the ORR Federal Field Specialist responsible for enforcing the contract with that facility, see Saravia, 280 F. Supp. 3d at 1186. The ORR Federal Field Specialist responsible for managing the agency’s contract with Shiloh RTC is Micaela Vergara, who is located in the Southern District of Texas. See De La Cruz Decl. at ¶ 2 [Doc. # 73-1]; 28 U.S.C. § 124(b)(2). Because this official is not located within the territorial jurisdiction of this Court and cannot be named as a party herein, Section 2241 does not authorize this Court to order Lucas’s release.

C. This Court Lacks Jurisdiction to Release Lucas R. Under the APA

The APA permits judicial review of an agency action only if “there is no other adequate remedy in a court[,]” see 5 U.S.C. § 704, which means that a federal court lacks jurisdiction over an APA claim if another statute would allow a court to review the allegedly unlawful agency action, see Coos Cty. Bd. of Cty. Cm’rs v. Kempthorne, 531 F.3d 791, 810 (9th Cir. 2008) (citing 5 U.S.C. § 704); Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1004–05 (9th Cir. 1998) (“Under APA § 10(c), codified at 5 U.S.C. § 704, federal courts lack jurisdiction over APA challenges whenever Congress has provided another ‘adequate remedy.’ * * * ‘If a plaintiff can bring suit against the responsible federal agencies under [another statute], this action precludes an additional suit under the APA.’” (quoting Envtl. Def. Fund v. Tidwell, 837 F. Supp. 1344, 1356 (E.D.N.C. 1992))). An adequate alternative to an APA challenge brought in this Court is available to Lucas R.—i.e., a petition for writ of habeas corpus filed in the United States District Court for the Southern District of Texas.7 See 28 U.S.C. § 2241(c)(3) (providing that the writ is available to

7 To the extent that the APA authorizes Lucas R. to seek release from custody, he may raise such claims in a habeas petition. See 5 U.S.C. § 703 (“The form of proceeding for judicial review is . . . any applicable form of legal action, including actions for . . . habeas corpus.”); Cornejo-Barreto, 218 F.3d 1004, 1015 n.12 (9th Cir. 2000) (“[H]abeas corpus is an appropriate form of action under the APA.”), overruled in part on another ground by Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (en banc). Any such habeas petition, however, cannot be entertained by this Court. See supra Part III.B.

CV-90

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 6, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 9 of 9

prisoners “in custody in violation of the Constitution or laws or treaties if the United States”); Trinidad y Garcia, 683 F.3d at 956 (“The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention.”); see also Reply re Lucas R.’s MPI at 13 n.6 (conceding that “aliens may challenge detention via habeas corpus provided they are not under a final order of removal”). Therefore, the APA does not authorize Lucas R. to challenge his present physical confinement in this judicial district.8

IV. CONCLUSION

For the foregoing reasons, the Court DENIES, without prejudice, Lucas R.’s motion for preliminary injunction, due to lack of jurisdiction. This Order in no way precludes Lucas R. from seeking appropriate relief in the United States District Court for the Southern District of Texas against ORR Federal Field Specialist Micaela Vergara.

IT IS SO ORDERED.

8 Lucas R. nonetheless insists that “the principles animating habeas relief as an exclusive remedy have no application here.” See Reply re Lucas R.’s MPI at 13 n.6. In particular, he asserts that Preiser v. Rodriguez, 411 U.S. 475 (1973), held only that a state prisoner may not challenge his or her custody via a claim under 42 U.S.C. section 1983 but must instead file a habeas petition under 28 U.S.C. section 2254. See Reply re Lucas R.’s MPI at 13 n.6. The Court agrees that Preiser has no bearing on Lucas’s motion. See Preiser, 411 U.S. at 500 (“[W]e hold today that when a state prisoner is challenging the very fact or duration of his physical imprisonment, . . . his sole federal remedy is a writ of habeas corpus.”). Nevertheless, as explained above, Lucas cannot obtain the relief he seeks from this Court.

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1 CARLOS HOLGUÍN (Cal. Bar No. 90754) Center for Human Rights and Constitutional Law
2 256 South Occidental Blvd. Los Angeles, CA 90057
3 Telephone: (213) 388-8693, ext. 309 Facsimile: (213) 386-9484
4 email: crholguin@centerforhumanrights.org

5 Listing continued on next page Attorneys for Plaintiffs
6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 LUCAS R., by his next friend MADELYN R.; DANIELA MARISOL T., by her next
12 friend KATHERINE L.; MIGUEL ANGEL S., by his next friend GERARDO S.;
13 GABRIELA N., by her next friend ISAAC N.; JAIME D., by his next friend REYNA
14 D.; SIRENA P., by her next friend EDUARDO P.; BENJAMIN F., by his next
15 friend ISABELLA F.; SAN FERNANDO VALLEY REFUGEE CHILDREN CENTER,
16 INC.; UNACCOMPANIED CENTRAL AMERICAN REFUGEE EMPOWERMENT,
17 Plaintiffs,
18 v.
19 ALEX AZAR, Secretary of U.S.
20 Department of Health and Human Services; E. SCOTT LLOYD, Director,
21 Office of Refugee Resettlement of the U.S. Department of Health & Human
22 Services,

Case No. 2:18-CV-05741 FIRST AMENDED1 COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, AND NOMINAL DAMAGES
(CLASS ACTION)

23

Defendants.

24 Counsel for Plaintiffs, continued

25

26

1 Because the amendments made herein do not affect the arguments raised in Defendants’ pending Motion to Dismiss, the Court should construe Defendants’

27

Motion as one to dismiss this First Amended Complaint in order to avoid needlessly delaying this action. See Martin v. Weed, Inc., No. 18-cv-00027-TUC-RM, 2018 WL

28 2431837, at *1 n.1 (D. Ariz. May 30, 2018).

First Amended Complaint

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1 HOLLY S. COOPER (Cal. Bar No. 197626) Co-Director, Immigration Law Clinic
2 CARTER C. WHITE (Cal. Bar No. 164149) Director, Civil Rights Clinic
3 University of California Davis School of Law One Shields Ave. TB 30
4 Davis, CA 95616 Telephone: (530) 754-4833
5 Email: hscooper@ucdavis.edu ccwhite@ucdavis.edu
6

7 LEECIA WELCH (Cal. Bar No. 208741)

NEHA DESAI (Cal. RLSA Bar No. 803161)

8 POONAM JUNEJA (Cal. Bar No. 300848)

National Center for Youth Law

9 405 14th Street, 15th Floor

Oakland, CA 94612

10 Telephone: (510) 835-8098

Email: lwelch@youthlaw.org

11

ndesai@youthlaw.org

pjuneja@youthlaw.org

12

13 CRYSTAL ADAMS (Cal. Bar No. 308638) National Center for Youth Law
14 1313 L St. NW, Suite 130 Washington, DC 20005
15 Telephone: (202) 868-4785 Email: cadams@youthlaw.org
16

17 SUMMER WYNN (Cal. Bar No. 240005)

MARY KATHRYN KELLEY (Cal. Bar No. 170259)

18 JON F. CIESLAK (Cal. Bar No. 268951)

MEGAN L. DONOHUE (Cal. Bar No. 266147)

19 Cooley LLP

4401 Eastgate Mall

20 San Diego, CA 92121-1909

Telephone: (858) 550-6000

21 Email: swynn@cooley.com

mkkelley@cooley.com

22

jcieslak@cooley.com

23

mdonohue@cooley.com

24

25

26

27

28

2

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1

I.

2

INTRODUCTION

3

1. This is an action for injunctive relief, declaratory relief, and nominal

4 damages, challenging certain unlawful policies and practices of Defendant Office of

5 Refugee Resettlement (“ORR”), a subordinate entity within the U.S. Department of

6 Health and Human Services (“HHS”). These policies and practices are causing grave

7 harm to children detained for alleged civil violations of the Immigration and

8 Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”). Pursuant to § 462 of the Homeland

9 Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, codified at 6 U.S.C. § 279

10 (“HSA”), and § 235 of the William Wilberforce Trafficking Victims Protection

11 Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044, codified at 8 U.S.C.

12 § 1232 (“TVPRA”), ORR is responsible for the placement, care, custody and release

13 of “unaccompanied alien children.”

14

2. The named Plaintiffs are immigrant and asylum-seeking children

15 detained for alleged civil violations of the INA and are members of the class protected

16 under the settlement in Flores v. Sessions, No. 85-cv-4544-DMG (AGRx) (C.D. Cal.)

17 (“Flores Settlement”).

18

3. The Flores Settlement and TVPRA § 235 oblige ORR to —

19

(a) minimize the detention of immigrant children by releasing them to their

20

parents or other qualified custodians so long as their continued detention

21

is not required due to dangerousness or unusual flight risk;

22

(b) place detained immigrant children in the least restrictive setting that is in

23

the best interest of individual children—generally a facility having a

24

state license to care for dependent, as opposed to delinquent, juveniles—

25

for however long they remain in federal custody;

26

27

28
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1

(c) ensure that detained immigrant children are held only in facilities that

2

are safe, sanitary and consistent with concern for the particular

3

vulnerability of minors; and

4

(d) ensure to the greatest extent practicable that children who are or have

5

been in ORR custody, except those from contiguous countries, have

6

counsel to represent them in legal matters and protect them from

7

mistreatment, exploitation, and trafficking.

8

4. ORR violates the foregoing requirements, as well as the Due Process

9 Clause of the Fifth Amendment of the U.S. Constitution, the Freedom of Association

10 Clause of the First Amendment to the U.S. Constitution, and Section 504 of the

11 Rehabilitation Act of 1973 by pursuing the following policies and practices:

12

(a) ORR confines children in medium secure facilities, residential treatment

13

centers (“RTCs”), and secure facilities peremptorily, often on bare

14

allegations they are dangerous or pose a flight risk, without affording

15

them a meaningful or timely opportunity to be heard regarding the

16

reasons for such placement;

17

(b) ORR prolongs children’s detention on the ground that their parents or

18

other available custodians are or may be unfit, while affording neither

19

detained juveniles nor their proposed custodians a meaningful or timely

20

opportunity to be heard regarding a proposed custodian’s fitness;

21

(c) ORR places children in residential treatment facilities and detention

22

facilities in which it knows they will be administered powerful

23

psychotropic medications for weeks, months, or years, without

24

procedural safeguards, including seeking informed parental consent or

25

other lawful authorization, even from parents present in the United

26

States.

27

28
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(d) ORR blocks lawyers from representing detained children with respect to

2

placement, non-consensual administration of psychotropic medications,

3

or release to available custodians notwithstanding that Congress has

4

allocated funds specifically to provide such lawyers to represent children

5

who are or have been in ORR custody in “legal matters,” including issues

6

related to release and least-restrictive placement;

7

(e) ORR segregates children who have or are perceived to have a behavioral,

8

mental health, intellectual, and/or developmental disability in secure

9

facilities, medium secure facilities, and RTCs, instead of the most

10

integrated setting appropriate to their needs; and

11

(f) ORR’s actions prolong the detention of children who have or are

12

perceived to have a behavioral, mental health, intellectual, and/or

13

developmental disability by placing them in restrictive settings

14

associated with heightened administrative barriers to release.

15

5. By this action, Plaintiffs seek equitable relief on behalf of themselves

16 and those similarly situated requiring Defendants to conform their polices, practices,

17 and procedures to the Flores Settlement, § 235 of the TVPRA, the Due Process Clause

18 of the Fifth Amendment to the U.S. Constitution, the Freedom of Association Clause

19 of the First Amendment to the U.S. Constitution, and Section 504 of the Rehabilitation

20 Act. Plaintiffs also seek nominal damages against individual Defendant E. Scott

21 Lloyd in his personal capacity pursuant to Bivens v. Six Unknown Named Agents of

22 Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

23

II.

24

JURISDICTION AND VENUE

25

6. This Court has jurisdiction over this action pursuant to Paragraph 37 of

26 the Flores Settlement (providing for “the enforcement, in this District Court, of the

27 provisions of this Agreement except for claims brought under Paragraph 24”); 28

28
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1 U.S.C. § 1331 (federal question jurisdiction); and 28 U.S.C. § 2241 (habeas corpus

2 jurisdiction).

3

7. Plaintiffs’ action for declaratory relief is brought pursuant to 28 U.S.C.

4 §§ 2201 and 2202, and 5 U.S.C. § 703.

5

8. Venue is properly in this court pursuant to Paragraph 37 of the Flores

6 Settlement and 28 U.S.C. § 1391(b) and (e)(1), because this action challenges class-

7 wide violations of the Flores Settlement, and because acts complained of herein

8 occurred in this district, Defendants have offices in this district, and no real property

9 is involved in this action.

10

9. Plaintiffs have private rights of action against Defendants pursuant to

11 Paragraph 37 of the Flores Settlement and the Administrative Procedure Act, 5 U.S.C.

12 §§ 701 et seq.

13

III.

14

PARTIES

15

10. Plaintiff Lucas R.2 is a native and citizen of Guatemala whom ORR is

16 currently detaining at the Shiloh Residential Treatment Center (“Shiloh RTC”) in

17 Texas. He was born in 2005 and is thirteen years old. Lucas is, and at all relevant

18 times was, an unaccompanied alien child within the meaning of 6 U.S.C. § 279(g)(2)

19 and a member of the plaintiff class the Flores Settlement protects. Pursuant to Federal

20 Rule of Civil Procedure 17(c)(2), Lucas appears through his Next Friend and sister,

21 Madelyn R., a resident of Los Angeles, California. Before Tuesday, September 4,

22 2018, ORR refused to release Lucas to his Next Friend and sister on the ground that

23 Madelyn’s home may be unfit. ORR indicated on September 4, 2018 that it would

24

25

26 2 The Court has previously granted permission to use pseudonyms for the named

27 Plaintiffs and their Next Friends. Plaintiffs will promptly seek permission to use

28

pseudonyms for the two new named Plaintiffs and their Next Friends.

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1 release Lucas on September 6, 2018. Upon information and belief, as of the timing of

2 this filing, Lucas is scheduled to be released on September 8, 2018.

3

11. Plaintiff Daniela Marisol T. is a native and citizen of Honduras in ORR

4 custody in a residential group home in Kentwood, Michigan. Daniela Marisol was

5 born in 2001 and is seventeen years old. Daniela Marisol is, and at all relevant times

6 was, an unaccompanied alien child within the meaning of 6 U.S.C. § 279(g)(2) and a

7 member of the plaintiff class the Flores Settlement protects. Pursuant to Federal Rule

8 of Civil Procedure 17(c)(2), Daniela Marisol appears through her Next Friend and

9 sister, Katherine L., a resident of St. Paul, Minnesota. ORR previously refused to

10 release Daniela Marisol to her Next Friend and sister on the ground that Katherine is

11 or may be unfit due to not having a separate bedroom for Daniela Marisol and not

12 having adequate income to support Daniela Marisol’s medical expenses. Katharine

13 has now met ORR’s requirements for reunification having rented a larger apartment

14 and having enough disposable income to pay Daniela Marisol’s medical expenses and

15 is currently awaiting ORR’s decision to release Daniela Marisol into her care.

16

12. Plaintiff Gabriela N. is a native and citizen of El Salvador whom ORR is

17 presently detaining in St. Michael’s Home for Children in Houston, Texas. She was

18 born in 2000 and is seventeen years old. Gabriela is, and at all relevant times was, an

19 unaccompanied alien child within the meaning of 6 U.S.C. § 279(g)(2) and a member

20 of the plaintiff class the Flores Settlement protects. Pursuant to Federal Rule of Civil

21 Procedure 17(c)(2), Gabriela appears through her Next Friend and grandfather, Isaac

22 N., a resident of Oakland, California. ORR has refused to release Gabriela to her Next

23 Friend and grandfather on the ground that Isaac is or may be unfit.

24

13. Plaintiff Miguel Angel S. is a native and citizen of Mexico whom ORR

25 is presently detaining at Yolo County Juvenile Detention Center (“Yolo”), a secure

26 facility in Woodland, California. He was born in 2001 and is seventeen years old.

27 Miguel Angel is, and at all relevant times was, an unaccompanied alien child within

28
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1 the meaning of 6 U.S.C. § 279(g)(2) and a member of the plaintiff class the Flores

2 Settlement protects. Pursuant to Federal Rule of Civil Procedure 17(c)(2), Miguel

3 Angel appears through his Next Friend and father, Gerardo S., a resident of San Jose,

4 California. Gerardo has sought to be Miguel Angel’s custodian and to have Miguel

5 Angel released from ORR custody into his care.

6

14. Plaintiff Jaime D. is a native and citizen of Honduras and presently being

7 held in ORR custody in Dobbs Ferry, New York. He was born in 2004 and is thirteen

8 years old. Jaime is, and at all relevant times was, an unaccompanied alien child within

9 the meaning of 6 U.S.C. § 279(g)(2) and a member of the plaintiff class the Flores

10 Settlement protects. Pursuant to Federal Rule of Civil Procedure 17(c)(2), Jaime

11 appears through his Next Friend, Reyna D., a resident of Riverdale, Maryland. Reyna

12 is Jaime’s aunt. Reyna has sought to be Jaime’s custodian and to have Jaime released

13 from ORR custody into her care.

14

15. Plaintiff Sirena P. is a native and citizen of Mexico and is presently being

15 held in ORR custody at Shiloh RTC in Manvel, Texas. She was born in 2003 and is

16 fourteen years old. Sirena is, and at all relevant times was, an unaccompanied alien

17 child within the meaning of 6 U.S.C. § 279(g)(2) and a member of the plaintiff class

18 the Flores Settlement protects. Pursuant to Federal Rule of Civil Procedure 17(c)(2),

19 Sirena appears through her Next Friend, Eduardo P., a resident of Ontario, California.

20 Eduardo is Sirena’s parent. Eduardo has sought to be Sirena’s custodian and to have

21 Sirena released from ORR custody into his care.

22

16. Plaintiff Benjamin F. is a native and citizen of El Salvador whom ORR

23 is currently detaining at Shiloh RTC in Manvel, Texas. He was born in 2008 and is

24 an autistic, developmentally delayed nine-year-old boy with limited verbal abilities.

25 Benjamin is, and at all relevant times was, an unaccompanied alien child within the

26 meaning of 6 U.S.C. § 279(g)(2) and a member of the plaintiff class the Flores

27 Settlement protects. Benjamin F. appears through his Next Friend and grandmother,

28
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1 Isabella F., a resident of Los Angeles, California. Isabella has sought to be Benjamin’s

2 sponsor and to have Benjamin released from ORR custody into her care.

3

17. Plaintiff San Fernando Valley Refugee Children Center, Inc. (“Children

4 Center”) is a non-profit organization incorporated in the State of California, with its

5 principal place of business in North Hills, California. The Children Center is a project

6 of the North Hills United Methodist Church’s Hispanic Mission. The Children

7 Center’s mission is to provide comprehensive social services, including mental health

8 care, shelter, transitional living assistance and legal aid, to children, youth, and

9 families who have come in search of refuge from persecution and endemic violence

10 in the Northern Triangle of Central America (El Salvador, Honduras, and Guatemala).

11 The children and youth the Children Center serves are the functional equivalents of

12 its members. The rights of children and youth the Children Center seeks to protect in

13 this action are germane to its mission and purpose. ORR’s policies and practices, as

14 alleged herein, make it substantially more difficult for the Children Center to carry

15 out its mission. For example, many of the children and youth whom the Children

16 Center serves have suffered multiple psychological and physical traumas, first in their

17 countries of origin, next during their journeys through Mexico, and then again, upon

18 being arrested and detained for immigration violations. The more time already-

19 traumatized children and youth remain detained, separated from their parents and

20 families, the more their mental and physical health deteriorates. The trauma that

21 immigration detention causes children and youth is greater still when ORR places

22 them in restrictive settings such as juvenile halls and RTCs, or medicates them

23 involuntarily or without their parents’ consent or other lawful authority. The

24 additional trauma such detention inflicts requires the Children Center to devote

25 commensurately greater resources, particularly mental health resources, to assist such

26 children and youth to recover.

27

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18. The Children Center is one of a small number of non-profit organizations

2 that serve refugee children and youth. The Children Center’s resources are limited

3 and do not allow it to help all who are in need. The Children Center’s ability to raise

4 funds depends in part on the raw number of children and youth it helps. As a practical

5 matter, resources the Children Center’s devotes to serving one child or youth are

6 unavailable to others. Defendants’ challenged policies and practices divert the

7 Children Center’s limited resources to address the injuries those policies and practices

8 cause, thereby reducing the number of other needy children and youth the Children

9 Center is able to assist, and, a fortiori, its ability to raise funds. The Children Center

10 therefore has a direct institutional interest in: (a) minimizing the time refugee children

11 and youth, including youth with disabilities, are detained; (b) ensuring that such

12 children and youth are housed in minimally restrictive settings for however long they

13 must remain in immigration-related detention; (c) minimizing the injury children and

14 youth suffer as a result of taking psychotropic drugs; and (d) ensuring that refugee

15 children and youth have counsel to assist them in all legal matters relating to their

16 immigration status, including custody, placement, and the administration of

17 psychotropic drugs without parental consent. The direct participation in this litigation

18 of the children and youth whom the Children Center serves is not necessary because

19 Plaintiffs seek only prospective equitable relief and nominal damages.

20

19. Plaintiff Unaccompanied Central American Refugee Empowerment

21 (“UCARE”) is an unincorporated consortium of non-profit agencies, most of which

22 are incorporated in the State of California, with its principal place of business in Los

23 Angeles, California. UCARE’s mission is to advocate for and provide legal and social

24 services to immigrant and refugee minors, many of whom are or have been in ORR

25 or Immigration and Customs Enforcement custody. In appropriate cases, UCARE

26 arranges free representation and assistance to youth with immigration problems

27 before the U.S. Citizenship and Immigration Services, the Executive Office of

28
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1 Immigration Review, and the Board of Immigration Appeals. Defendants’ unlawful

2 policies and practices, as alleged herein, make such assistance and representation

3 substantially more difficult and render UCARE’s work less effective. ORR’s

4 compliance with the Flores Settlement and § 235 of the TVPRA is germane to

5 UCARE’s purpose. The individual participation of aggrieved youth the UCARE

6 serves is not necessary because UCARE seeks only prospective or injunctive relief

7 and nominal damages for its client members. UCARE has an actual stake in this

8 litigation because the funding of UCARE’s member organizations is largely

9 determined by the number of youth they serve. Defendants’ challenged policies and

10 practices deny or delay children’s release, and thus delay or deny Plaintiff UCARE’s

11 member organizations the opportunity to serve them.

12

20. ORR has placed many unaccompanied children in the communities that

13 the Children Center and UCARE serve. In federal fiscal year 2018, ORR placed more

14 than 1,100 unaccompanied children in Los Angeles alone.

15

21. Defendant Alex Azar is the Secretary of HHS and oversees ORR.

16 Pursuant to 6 U.S.C. § 279, HHS is responsible for the proper care and placement of

17 unaccompanied alien children who are in federal custody by reason of their

18 immigration status. HHS and ORR discharge these duties by, inter alia, entering into

19 contracts with public and private entities to house, care for, and provide legal

20 assistance to unaccompanied alien children arrested and detained pursuant to the INA.

21 Defendant Azar is sued in his official capacity only.

22

22. Defendant E. Scott Lloyd is the Director of ORR. ORR is responsible for

23 the care, custody, and release of unaccompanied alien children in federal custody on

24 account of their immigration status. Defendant Lloyd is sued in his individual capacity

25 for nominal damages pursuant to Bivens v. Six Unknown Named Agents of Fed.

26 Bureau of Narcotics, 403 U.S. 388 (1971), and in all other respects in his official

27 capacity only.

28
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23. Defendants, and each of them, have historically professed to act in the

2 capacity of parens patriae to detained children. Defendants, and each of them, thereby

3 assume a legal obligation to act in such children’s best interests. Defendants breach

4 this duty in pursuing the policies and practices challenged in this Complaint.

5

IV.

6

NAMED PLAINTIFFS’ EXPERIENCES IN ORR CUSTODY

7 A. Lucas R.

8

24. On or about February 12, 2018, ORR assumed custody of Plaintiff Lucas

9 R. after he arrived at the U.S.-Mexico border. ORR placed him at the Hacienda del

10 Sol facility in Youngtown, Arizona. Within approximately ten days, Madelyn R.,

11 Lucas’ adult sister and Next Friend, requested Lucas’ custody and delivered to ORR

12 a family reunification packet with the required documentation. Many years ago, Lucas

13 and Madelyn’s father abandoned them; their mother died when Lucas was

14 approximately two years old. Thereafter, Madelyn and an aunt raised Lucas in his

15 parents’ stead. Madelyn and Lucas have a very close relationship. Over the next six

16 weeks or so, ORR gave Lucas and Madelyn the impression that everything was in

17 order and that it would soon release Lucas to Madelyn’s custody; it did not.

18

25. According to Madelyn, in Guatemala, Lucas was a thriving, happy child

19 who liked to joke, play, and talk with people. When he arrived at Hacienda del Sol,

20 facility staff noted that Lucas appeared cooperative, calm, and alert, and showed “no

21 behavioral concerns.”

22

26. As his confinement wore on, however, Lucas became depressed, fearing

23 that ORR would never release him to his family. Without obtaining Madelyn’s

24 informed consent, the informed consent of any other adult family member, or judicial

25 authorization, ORR administered Lucas psychotropic drugs, ostensibly to control

26 “moderate” depression. Upon information and belief, ORR did not involve a neutral

27

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1 decision maker in the initial determination of whether to prescribe psychotropic

2 medications to Lucas or in ongoing reviews of those medications.

3

27. The medications caused Lucas stomach pain, and he refused to continue

4 taking them. Lucas thinks that his refusal to take the medications harmed his ability

5 to reunify with his sister.

6

28. Approximately six weeks after Madelyn had requested Lucas’ custody,

7 ORR sent an investigator to Madelyn’s home in Los Angeles, California. Living with

8 Madelyn then and now are her infant daughter, adult brother, and an unrelated female

9 roommate and her child. At the time the investigator arrived, Madelyn’s roommate’s

10 brother was visiting.

11

29. The investigator indicated to Madelyn that her home was suitable, but

12 that all adults who reside with her would have to appear for fingerprinting, including

13 her roommate’s brother. Madelyn advised the investigator that her roommate’s

14 brother did not live in the home, but the investigator insisted that the visitor appear

15 for fingerprinting regardless. All the adult residents of Madelyn’s home appeared for

16 fingerprinting, but her roommate’s brother did not. Approximately one month later,

17 ORR orally advised Madelyn that it would not release Lucas to her because her

18 roommate’s brother had failed to appear for fingerprinting. ORR represented to

19 Madelyn that its decision was final, and afforded neither Madelyn nor Lucas any

20 hearing, right to administrative appeal, or other means to change its decision. ORR

21 failed to provide Madelyn with a written decision or written explanation for denying

22 her custody of Lucas.

23

30. When Lucas learned that the ORR home examiner recommended against

24 releasing him to Madelyn, he was devastated. Lucas began feeling desperate and

25 helpless over his prolonged detention and shared those feelings with staff members.

26 Rather than attempting to help Lucas manage his feelings, Hacienda del Sol personnel

27

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1 responded to his pleas for support by hospitalizing Lucas and requesting that ORR

2 transfer him to a more secure facility.

3

31. On or about May 21, 2018, ORR transferred Lucas to Shiloh RTC in

4 Manvel, Texas due to his mental health needs. ORR did not afford Lucas notice of

5 this transfer, an opportunity to be heard, or a right to appeal. ORR led Madelyn to

6 believe Shiloh RTC was simply another shelter to which it was sending Lucas because

7 Hacienda del Sol lacked space. Due to ORR’s actions and inactions, Lucas’ release

8 has been unnecessarily delayed, and Lucas has not been placed in the least restrictive

9 setting.

10

32. Upon information and belief, while detained at Shiloh RTC, Lucas has

11 been administered Zoloft. Zoloft’s side-effects include rigidity in the muscles, high

12 fever, sweating, confusion, agitation, hallucinations, overactive reflexes, tremors,

13 nausea, vomiting, diarrhea, loss of appetite, fainting, and seizures.

14

33. Shiloh personnel have now diagnosed Lucas with “major depressive

15 disorder.” Among Lucas’ “major stressors,” Shiloh personnel identify his “[b]eing

16 kept from family and in ORR custody.” Shiloh staff nonetheless told Lucas that ORR

17 would not release him until Shiloh medical personnel declared him psychologically

18 sound. Lucas’ experiences in ORR custody, including prolonged separation from his

19 family and administration of psychotropic medications over his objection and without

20 informed consent, exacerbated his mental health symptoms and made this approval

21 less likely, thereby delaying his release.

22

34. Shiloh personnel have regularly prevented Lucas from communicating

23 with Madelyn over the telephone. Shiloh denied Lucas his right to speak with

24 Madelyn on a weekly basis without providing him or his sister any explanation for

25 the denial. This prohibition has made Lucas deeply despondent and has increased his

26 feelings of isolation.

27

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1

35. ORR has provided Lucas no legal counsel to represent him with respect

2 to release, the administration of psychotropic medications, or placement at Shiloh.

3

36. Prior to Tuesday, September 4, 2018, ORR refused to release Lucas to

4 his Next Friend and sister on the ground that Madelyn’s home may be unfit. ORR

5 indicated on September 4, 2018, that it would release Lucas on September 6, 2018;

6 however as of the time of this filing, upon information and belief, Lucas remains

7 detained.

8 B. Daniela Marisol T.

9

37. On or about August 3, 2017, Plaintiff Daniela Marisol T., a partially deaf

10 seventeen-year-old girl, arrived at the U.S.-Mexico border with her older sister,

11 Katherine L., and her nephew. Daniela Marisol, Katherine, and her younger nephew

12 fled from their home country in fear for their lives. At the border, Daniela Marisol

13 was forcibly separated from her sister and nephew and placed in the custody of ORR

14 at the International Education Service Norma Linda Shelter in Los Fresnos, Texas.

15 Daniela Marisol and Katherine are very close, and Daniela Marisol views Katherine

16 as a second mother. Daniela Marisol was so emotionally traumatized by the separation

17 that she was later admitted to a psychiatric hospital to cope with the trauma. The

18 screening physician also recommended treatment for Daniela Marisol’s hearing

19 disability once she was released to her sister—a release that, eleven months later, has

20 yet to come to fruition. Daniela Marisol finally received a hearing aid ten months after

21 the screening physician’s original recommendation, and thus spent nearly a year with

22 limited ability to hear.

23

38. Katherine and her son, detained separately from Daniela Marisol, were

24 released from immigration custody after they proved to an Asylum Officer that they

25 have a credible fear of persecution should they be returned to Honduras. Upon release,

26 Katherine applied to become Daniela Marisol’s custodian and have ORR release

27 Daniela Marisol to her custody. However, ORR has placed arbitrary, expensive, and

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1 excessive conditions on Daniela Marisol’s release, which preemptively dissuaded

2 Katherine from applying to be her sponsor, and included conditions purportedly

3 related to Daniela Marisol’s mental health needs. Only recently, following

4 overwhelming community support, has Katherine finally been able to meet these

5 excessive conditions and apply to be Daniela Marisol’s sponsor.

6

39. According to Katherine, when Daniela Marisol lived in Honduras with

7 her family, she did not seem to have mental health issues. However, Daniela Marisol’s

8 psychological state rapidly deteriorated after her family separation. It was further

9 exacerbated when caseworkers told Daniela Marisol that she was not going to be

10 released to her sister. Daniela Marisol lost hope that she would ever be released to her

11 family. Depressed and suicidal, she was admitted to a psychiatric hospital where she

12 suffered a psychotic breakdown.

13

40. While Daniela Marisol was detained at the Norma Linda shelter, a doctor

14 reiterated the screening physician’s recommendation, while also discovering that she

15 was largely deaf in one ear. ORR declined to treat her deafness and instead noted that

16 she should consult a specialist regarding her deafness “once [she was] reunified with

17 family.” Likewise, at Shiloh RTC, Daniela Marisol’s hearing disability went

18 untreated. Months later, when she was stepped-down to a shelter care facility in Los

19 Angeles County called David and Margaret, it was again recommended she receive

20 hearing aids. Again, she never received the hearing aids while in Los Angeles County.

21 Finally, only after she was transferred to Michigan and in the custody of Bethany

22 Christian Services—almost ten months after her hearing disability diagnosis and only

23 at the repeated request of counsel—did she receive her hearing aids.

24

41. After her breakdown, on or about September 8, 2017, ORR transferred

25 Daniela Marisol to Shiloh RTC in Manvel, Texas due to her mental health needs.

26 ORR did not afford her notice of her transfer, an opportunity to be heard or a right to

27 appeal. Moreover, Daniela Marisol’s sister, Katherine, was required to show a $500

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1 per month disposable income in order to support Daniela Marisol’s psychological and

2 medical needs. Because her sister did not have sufficient economic resources ORR

3 told her she could not qualify to sponsor Daniela Marisol.

4

42. Without obtaining the informed consent of Daniela Marisol’s mother,

5 Katherine, other family members, or court authorization, ORR administered

6 numerous psychotropic medications to Daniela Marisol, including atypical

7 antipsychotics and antidepressants, starting when she was in the Norma Linda shelter,

8 and continuing while she was at Shiloh RTC and the David and Margaret shelter in

9 Los Angeles County, and through her present placement, Bethany Christian Services

10 in Michigan. In the approximately thirteen months that she has been in ORR custody,

11 Daniela Marisol has been given multiple psychotropic medications, including Prozac,

12 Abilify, Clonidine, Risperdal, Seroquel, and Zyprexa. While in ORR custody, Daniela

13 Marisol has been the subject of numerous, changing diagnoses, including “Bipolar

14 disorder, MRE, Mixed, with psychosis, GAD, PTSD;” “major depressive disorder,

15 recurrent episode, severe with mood-congruent psychotic features;” and “bipolar II

16 disorder, generalized anxiety disorder, PTSD.” Upon information and belief, ORR

17 did not involve a neutral decision maker in the initial determination of whether to

18 prescribe psychotropic medications to Daniela Marisol or in ongoing reviews of those

19 medications.

20

43. As recognized by the U.S. Food and Drug Administration (“FDA”),

21 antidepressants such as those prescribed to Daniela Marisol “increase[] the risk

22 compared to placebo of suicidal thinking and behavior (suicidality) in children,

23 adolescents, and young adults in short term studies of major depressive disorder

24 (MDD) and other psychiatric disorders.” ORR has frequently given Daniela Marisol

25 an atypical antipsychotic and an antidepressant in combination. Research

26 demonstrates that the number and severity of side effects, such as thoughts of suicide

27 and intentional self-harm, increases as the number of concurrent medications

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1 increases. Daniela Marisol has become suicidal while being forced to take such

2 antidepressants and drug combinations.

3

44. Daniela Marisol believes that she has to take the medication because

4 facility staff have told her that she must in order to be released from government

5 custody.

6

45. Katherine desperately wants to provide her younger sister a loving and

7 safe home, and she has done everything in her power to have Daniela Marisol released

8 to her care. However, ORR told Katherine that, in order for Daniela Marisol to be

9 released to her care, Katherine must move to a new house, have a separate private

10 bedroom for Daniela Marisol, and prove that she can pay over $500 per month for

11 Daniela Marisol’s medical care. In response to these demands, Katherine engaged

12 with a local, supportive Jewish Synagogue that has raised money for a new apartment

13 with a separate bedroom for Daniela Marisol, donated new furnishings for Daniela

14 Marisol’s bedroom, and fundraised over $5,000 in cash from its congregation to

15 support Daniela Marisol’s medical needs. Katherine currently lives in a new

16 apartment which she rented specifically to meet ORR’s demand that Daniela Marisol

17 have a separate bedroom, and has enough money saved to meet all of Daniela

18 Marisol’s medical needs. She has received a positive home study evaluation and an

19 expert psychologist found it was in Daniela Marisol’s best interest to be reunited with

20 her sister. Katherine has attempted to meet ORR’s arduous demands, but has yet to

21 be provided with any written decision as to whether she will be reunified with Daniela

22 Marisol. ORR’s requirements that Katherine must have a two-bedroom apartment and

23 be able to demonstrate she has the ability to pay $500 per month in medical expenses

24 were represented to Katherine as fixed prerequisites to sponsoring Daniela Marisol.

25 ORR never afforded Katherine or Daniela Marisol any hearing, right to administrative

26 appeal, or other means to change its decision. Due to ORR’s actions and inactions,

27

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1 Daniela Marisol’s release has been unnecessarily delayed, and she has not been placed

2 in the least restrictive setting.

3

46. Daniela Marisol remains in government custody, away from her sister

4 and other family. ORR has given her no legal counsel to represent her with respect to

5 release, administration of psychotropic medications, or her placement.

6 C. Miguel Angel S.

7

47. On or about May 16, 2017, ORR assumed custody of Plaintiff Miguel

8 Angel after he arrived at the U.S.-Mexico border. ORR placed him at the Southwest

9 Key shelter in southern California. The staff initially told Miguel Angel that he would

10 be released to Gerardo S., his father and next friend, within three months.

11

48. As Miguel Angel’s time in detention wore on, he felt anxious at the

12 shelter and often feared he would never be released. On July 17, 2017, ORR

13 transferred Miguel Angel to Shiloh RTC in Texas due to his mental health needs.

14 ORR did not afford him notice of his transfer, an opportunity to be heard or a right to

15 appeal. At Shiloh, Miguel Angel was administered several psychotropic medications,

16 including Remeron, Trazadone, Seroquel, and Lexapro. Side effects of these

17 medications include stomach pain, dizziness, nausea, drowsiness, unusual weight

18 gain, blurred vision, and insomnia.

19

49. Miguel Angel objected to taking the medications because they made him

20 feel itchy, dizzy, aggressive, nauseous, and caused him to gain an unusual amount of

21 weight in a short period of time. Shiloh staff insisted that he take the medication. Upon

22 information and belief, the staff at Shiloh administered these medications to Miguel

23 Angel without obtaining Gerardo’s informed consent or judicial authorization.

24

50. Upon information and belief, ORR did not involve a neutral decision

25 maker in the initial determination of whether to prescribe psychotropic medications

26 to Miguel Angel or in ongoing review of those medications.

27

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1

51. While Miguel Angel was detained at Shiloh, several staff members

2 physically assaulted him multiple times. During one incident, a staff member placed

3 Miguel Angel in a headlock, painfully ripping Miguel Angel’s earring out of his

4 earlobe. A physician assistant watched this, but did nothing to stop the attack. Miguel

5 Angel reported the incident immediately to the facility doctor, but the doctor laughed

6 and did nothing. Another time, two Shiloh staff members picked Miguel Angel up by

7 his arms and pushed him up against a wall. One of the staff members pressed his

8 forearm across Miguel Angel’s throat, making it hard for him to breathe. Upon

9 information and belief, when Miguel Angel reported the incidents to staff, no

10 disciplinary action was taken.

11

52. In March 2018, shortly after these assaults took place, ORR transferred

12 Miguel Angel to Yolo Juvenile Detention Center, affording him neither notice nor

13 opportunity to be heard. Upon information and belief, Miguel Angel was transferred

14 to Yolo in retaliation for reporting the assaults.

15

53. At Yolo, facility staff has attacked Miguel Angel with pepper spray, and

16 he fears they will do it again. On one occasion, after Miguel Angel had been pepper

17 sprayed by staff in his eyes and ears, he had to use water from the toilet in his cell to

18 wash out his eyes because staff cut off water to his sink. The pepper spray made his

19 eyes feel like they were on fire, and he lost hearing in one ear for several days. Miguel

20 Angel spends most of his time at Yolo locked in a small cell and is only allowed out

21 for short periods, which makes him feel trapped and tortured.

22

54. Miguel Angel’s father, Gerardo, applied to be Miguel Angel’s sponsor

23 around October 2017. Miguel Angel and Gerardo have a very close relationship, and

24 Miguel Angel wants to live with him. Gerardo lives in an apartment with his brother,

25 and in October 2017 both Gerardo and his brother submitted all required documents

26 to ORR, including birth certificates and fingerprints. ORR also requested that

27

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1 Gerardo’s neighbor, who lives across the hallway, submit the same information. The

2 neighbor submitted this information in October 2017.

3

55. In December 2017, a home investigator visited Gerardo’s apartment to

4 perform a home study. The home study went well, and the home investigator

5 recommended that Miguel Angel be released to Gerardo’s custody. The home

6 investigator assured Gerardo that Miguel Angel would probably be released in the

7 first few weeks of January. Gerardo heard nothing from ORR or Miguel Angel’s case

8 workers throughout January or February 2018.

9

56. At both facilities, Miguel Angel experienced barriers to release to his

10 father. In March 2018, Gerardo was told that the Shiloh doctors would not approve

11 Miguel Angel for release and that he would remain in ORR custody until they do.

12 Miguel Angel’s experiences in ORR custody, including prolonged separation from

13 his family, administration of psychotropic medications over his objection and without

14 informed consent, and assaults by staff at Shiloh, exacerbated his mental health

15 symptoms and made this approval less likely, thereby delaying his release.

16

57. In early May 2018, Miguel Angel’s case worker at Yolo told Gerardo

17 that he needed to provide proof of school enrollment and the name of a psychiatric

18 clinic in order for Miguel Angel to be released. Gerardo has tried his best to comply

19 with these requirements, but the local school requires Miguel Angel to be physically

20 present in order to be enrolled, and Gerardo has been unable to find a psychiatric

21 clinic that will give Miguel Angel an appointment. In late May 2018, Miguel Angel’s

22 case worker told Gerardo that his fingerprints had expired, and that Gerardo, his

23 brother, and his neighbor would need to submit their fingerprints again.

24

58. ORR has refused to release Miguel Angel to Gerardo’s custody for over

25 a year. ORR has not provided Miguel Angel or Gerardo with written notification of

26 its refusal to release Miguel Angel or the basis for the refusal, or an opportunity to

27 review the underlying evidence or appeal ORR’s refusal to release Miguel Angel to

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1 his father. Due to ORR’s actions and inactions, Miguel Angel’s release has been

2 unnecessarily delayed and he has not been placed in the least restrictive setting.

3 D. Gabriela N.

4

59. On or about January 8, 2017, ORR assumed custody of Plaintiff Gabriela

5 N., shortly after she had turned herself in at the U.S.-Mexico border. As a young girl

6 living in El Salvador, Gabriela experienced extreme violence and did not feel safe at

7 home. ORR placed her at the Southwest Key Casita del Valle facility (“Casita del

8 Valle shelter”) in Clint, Texas. In April 2017, Isaac N., Gabriela’s grandfather and

9 Next Friend, requested Gabriela’s custody and submitted an application to serve as

10 her custodian. Gabriela’s mother appeared before a U.S. Consular official in El

11 Salvador to execute a formal designation pursuant to Paragraph 14D of the Flores

12 settlement directing ORR to release Gabriela to her grandfather.

13

60. Gabriela’s biological father is deceased, and her stepfather physically

14 abused her mother and disabled sister who suffers from paralysis from the abuse and

15 can no longer speak. Thus, Gabriela fled to the U.S. seeking safety, with the hope of

16 living with her grandfather. Gabriela and her grandfather, Isaac, have a close

17 relationship, and she wants to live with him. Over the next approximately fourteen

18 months, Isaac continued to submit documents that ORR requested and completed a

19 home study in anticipation that ORR would release Gabriela to his custody; it did not.

20

61. In El Salvador, Gabriela took no medications for mental illness. When

21 she arrived at Casita del Valle shelter, facility staff noted that Gabriela appeared

22 emotionally stable, receptive, and resilient.

23

62. As her confinement wore on, however, Gabriela became depressed and

24 anxious, fearing that ORR would never release her to her family. Without obtaining

25 Isaac’s informed consent, the informed consent of any other adult family member, or

26 judicial authorization, ORR repeatedly administered Gabriela psychotropic

27

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1 medications, ostensibly to control post-traumatic stress disorder, anxiety, major

2 depressive disorder, and attention-deficit hyperactivity disorder (“ADHD”).

3

63. While at Casita del Valle shelter, Gabriela was administered Prozac, a

4 psychotropic medication.

5

64. On or about September 7, 2017, ORR transferred Gabriela to Shiloh RTC

6 due to her mental health needs. ORR did not afford her notice of the transfer, an

7 opportunity to be heard or a right to appeal. At Shiloh, ORR administered Gabriela

8 another psychotropic medication, Adderall, which includes side effects of irritability

9 and difficulty with sleep initiation. Adderall is also known to cause or worsen

10 depression in a significant proportion of those who take it. Over the course of

11 Gabriela’s detention in Shiloh, the psychiatrist at Shiloh increased the dosage of

12 Adderall administered to Gabriela several times. Upon information and belief, ORR

13 did not involve a neutral decision maker in the initial determination of whether to

14 prescribe psychotropic medications to Gabriela or in ongoing review of those

15 medications.

16

65. Gabriela does not believe the medications help her, and she does not

17 want to take them. However, Gabriela believes that she must take the medications in

18 order to be released from detention. Shiloh staff told Gabriela that ORR would not

19 release her until Shiloh medical personnel declare her psychologically sound.

20 Gabriela’s experiences in ORR custody, including prolonged separation from her

21 family and taking medications she does not want to take, exacerbated her mental

22 health symptoms and made this approval less likely, thereby delaying her release.

23

66. In February 2018, ORR sent an investigator to Isaac’s home in Oakland,

24 California, where he lived, and continues to live, alone. Isaac moved to a new

25 apartment and purchased a new bed for Gabriela in preparation for her release.

26

67. The investigator’s report acknowledges the close relationship between

27 Isaac and Gabriela, credits Isaac for having “adequate housing,” “access to

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1 transportation,” and “maintain[ing] stable employment,” and notes that Isaac is

2 committed to “oversee[ing] [Gabriela’s] arrival to school each day and . . . provid[ing]

3 afterschool supervision,” is aware of a local “hospital where he could take [Gabriela]

4 for any medical needs,” and has “identified a local mental health provider . . . where

5 he intends to connect [Gabriela].” However, the investigator questioned Isaac’s ability

6 to support Gabriela’s education and care for her financially. Isaac assured the

7 investigator that he would do everything required to provide for Gabriela. Later,

8 Gabriela’s social worker at Shiloh told Isaac that ORR was no longer considering him

9 as a custodian for his granddaughter. ORR afforded neither Isaac nor Gabriela any

10 hearing, right to administrative appeal, or other means to change its decision. ORR

11 failed to provide Isaac with a written decision or written explanation for denying him

12 custody of Gabriela. Due to ORR’s actions and inactions, Gabriela’s release has been

13 unnecessarily delayed and Gabriela has not been placed in the least restrictive setting.

14

68. Seventeen-year-old Gabriela remains detained in ORR custody at St.

15 Michael’s Home for Children, where she has been administered Prozac and Adderall.

16 For four months, St. Michael’s personnel continued to administer Adderall to

17 Gabriela without obtaining new prescriptions from a psychiatrist. After Gabriela

18 finally met with a psychiatrist four months into her detention at St. Michael’s, the

19 psychiatrist increased the dosage of Adderall yet again.

20

69. After being detained for over one and a half years, Gabriela is miserable

21 and desperately wants to live with her grandfather. Her grandfather is ready and eager

22 to care for her. Shiloh staff have nonetheless told Gabriela that ORR will not release

23 her to her grandfather. ORR has provided Gabriela no legal counsel to represent her

24 with respect to release, the administration of psychotropic medications, or her

25 placement at Shiloh.

26

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1 E. Jaime D.

2

70. On or about April 8, 2018, ORR assumed custody of thirteen-year-old

3 Plaintiff Jaime D. after he arrived at the U.S.-Mexico border with his six-year-old

4 sister and ten-year-old aunt. ORR placed Jaime and his younger sister and aunt at the

5 Cayuga Centers shelter in Bronx, New York. On or about April 10, 2018, Reyna D.,

6 Jaime’s aunt and Next Friend, requested Jaime’s custody and submitted a family

7 reunification packet to ORR. Reyna is Jaime’s only family in the United States. Jaime

8 desperately wants to be released to Reyna’s care. Jaime’s mother died when he was

9 seven years old and, upon information and belief, his father died before he was born.

10 Reyna discussed ORR’s requirements for becoming Jaime’s custodian in detail with

11 Jaime’s case manager at Cayuga Centers and immediately began gathering the

12 required documents to send to ORR.

13

71. When Jaime was first sent to Cayuga Centers, the staff made him feel

14 very nervous. Jaime was terrified that he would be forced to return to his home

15 country, where his life had been threatened. He made up a story about his life in his

16 home country, because he thought that this would make the shelter staff leave him

17 alone. He later recanted this story multiple times.

18

72. On or about April 18, 2018, ORR transferred Jaime to Yolo County

19 Juvenile Detention Center in Woodland, California. ORR transferred Jaime to Yolo

20 without affording him notice, an opportunity to be heard or a right to appeal. He was

21 awakened at 4:00 in the morning and restrained with heavy shackles throughout the

22 cross-country flight from New York to California. Jaime was not allowed to say

23 goodbye to his younger sister or aunt. He was extremely worried they would think he

24 had abandoned them.

25

73. Yolo staff first contacted Reyna regarding her application for Jaime’s

26 custody about a week after Jaime arrived at Yolo. Approximately two weeks later,

27 Jaime’s case manager noted that Reyna had “provided all that [had] been asked of

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1 her,” including a complete family reunification packet and fingerprints. In late May

2 2018, Reyna completed a home study and interview with a home investigator. ORR

3 found Reyna a suitable custodian for Jaime’s younger sister and aunt. ORR released

4 the two girls to Reyna’s care on or about June 8, 2018.

5

74. While detained at Yolo, Jaime felt unsafe and suffered from anxiety.

6 Reyna was extremely concerned for his well-being as well, as Jaime sounded

7 increasingly sad and scared during their phone calls. Throughout his time at Yolo,

8 Jaime suffered physical abuse at the hands of older youth in the facility. Jaime alerted

9 facility staff of the abuse, but staff ignored his concerns and said they did not believe

10 him.

11

75. Two weeks after he was transferred to Yolo, Jaime’s case manager noted

12 that the Yolo staff were “all in agreement that [Jaime] isn’t appropriately placed in a

13 secure setting.” Jaime was told by his case worker that he was too young to be at Yolo

14 and would hopefully be transferred soon. However, Jaime remained at Yolo for

15 another three weeks. On or about May 24, 2018, ORR transferred Jaime to Children’s

16 Village medium secure facility in Dobbs Ferry, New York.

17

76. Thirteen-year-old Jaime remains detained at Children’s Village, where

18 he is increasingly anxious and worried that he will never be released to his aunt’s care.

19 As of the filing of this Amended Complaint, Reyna has not heard from Jaime’s case

20 worker at Children’s Village for almost a month. ORR has not provided Jaime or

21 Reyna with written notification of its refusal to release Jaime or the basis for the

22 refusal, or an opportunity to review the underlying evidence or appeal ORR’s refusal

23 to release Jaime to his aunt. Due to ORR’s actions and inactions, Jaime’s release has

24 been unnecessarily delayed and Jaime has not been placed in the least restrictive

25 setting.

26

77. ORR has provided Jaime no legal counsel to represent him with respect

27 to release or his placement at Children’s Village.

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1 F. Sirena P.

2

78. On or about April 14, 2018, ORR assumed custody of Plaintiff Sirena P.

3 after she arrived at the U.S.-Mexico border with her two siblings. ORR placed Sirena

4 and her siblings at the Southwest Key Campbell shelter (“Campbell”) in Phoenix,

5 Arizona. Shortly after, Eduardo P., Sirena’s father and Next Friend, requested

6 Sirena’s custody and submitted a family reunification packet to ORR. Sirena’s father

7 has completed two home studies and received positive recommendations for both.

8 After the first home study was completed, Campbell released Sirena’s siblings to her

9 parents’ custody. ORR prohibited Sirena from joining her siblings and parents, citing

10 Sirena’s mental health needs.

11

79. Sirena’s separation from her parents upset her so severely that she was

12 hospitalized twice in May 2018. Sirena has explained that her mental health needs are

13 fueled solely by the agony she feels as a result of her ongoing separation from her

14 parents.

15

80. Without obtaining Eduardo’s informed consent, the informed consent of

16 any other adult family member, or judicial authorization, while detained at Campbell

17 and during her hospitalization, shelter and hospital personnel administered multiple

18 psychotropic medications to Sirena, including Hydroxyzine, Prozac, Abilify, and

19 Zoloft.

20

81. On or about June 4, 2018, ORR transferred Sirena to Shiloh RTC in

21 Manvel, Texas due to her mental health needs. ORR transferred Sirena to Shiloh

22 without affording her notice, an opportunity to be heard or a right to appeal. She was

23 awakened around 3:00 in the morning and transported to Shiloh against her wishes.

24

82. At Shiloh, Sirena struggles with anxiety, depression, and hopelessness.

25 Sirena’s Admission Assessment indicated that Sirena’s major stressors include

26 “[s]eparation from family” and “[f]rustration with lengthy reunification process.”

27 Without obtaining Eduardo’s informed consent, the informed consent of any other

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1 adult family member, or judicial authorization, Shiloh personnel have administered

2 Buproprion, a psychotropic medication, to Sirena.

3

83. Sirena remains detained at Shiloh, where she is increasingly anxious and

4 worried that she will never be released to her parents’ care. As of August 24, 2018,

5 Sirena’s release was still pending her doctor’s approval. Sirena’s experiences in ORR

6 custody, including prolonged separation from her family and administration of

7 psychotropic medications without informed consent, have exacerbated her mental

8 health symptoms, thereby making this approval less likely and delaying her release.

9

84. Due to ORR’s actions and inactions, Sirena’s release has been

10 unnecessarily delayed and Sirena has not been placed in the least restrictive setting.

11 While Sirena’s two nondisabled siblings have been released to their parents, Sirena

12 has been placed at Shiloh and her release has been delayed on the basis of her mental

13 health needs.

14

85. Upon information and belief, ORR has provided Sirena no legal counsel

15 to represent her with respect to release or her placement at Shiloh.

16 G. Benjamin F.

17

86. On or about July 2, 2018, ORR assumed custody of Benjamin F. after he

18 and his brother were inexplicably separated from their mother in the South Texas

19 Family Residential Center, known as Dilley.

20

87. Nine-year-old Benjamin, who is autistic and developmentally delayed,

21 struggles to function and speak when he is not in the presence of his mother. His

22 traumatic separation from his mother and placement in ORR custody has led to a

23 cascading effect of multiple physical and emotional challenges for him, none of which

24 are being addressed by ORR.

25

88. Benjamin was initially placed at St. PJ’s Children’s Home with his

26 brother, Mateo P. Isabella, Benjamin’s grandmother and Next Friend, immediately

27 began the process of filling out the Family Reunification Packet so that both of her

28
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1 grandsons could be released to her in Los Angeles, California. Isabella received

2 confusing and conflicting information about additional information she needed to

3 provide to ORR, but she kept responding to every request that she received and she

4 successfully submitted a completed packet to ORR. ORR conducted a home study of

5 Isabella and gave her a positive recommendation.

6

89. Without obtaining Isabella’s informed consent, the informed consent of

7 any other adult family member, or judicial authorization, Benjamin was placed on

8 multiple psychotropic medications, including Guanfacine and Risperidone, while he

9 was at St. PJ’s Children’s Home. The Guanfacine made Benjamin severely drowsy.

10 Upon information and belief, ORR did not involve a neutral decision maker in the

11 initial determination of whether to prescribe psychotropic medications to Benjamin

12 or in ongoing review of those medications.

13

90. On or about July 23, 2018, ORR transferred Benjamin to Shiloh RTC in

14 Manvel, Texas due to his mental health and behavioral health needs. ORR transferred

15 Benjamin to Shiloh without affording him notice, an opportunity to be heard or a right

16 to appeal. This transfer resulted in yet another devastating separation: between

17 Benjamin and his older brother Mateo.

18

91. Benjamin’s isolation and trauma have worsened at Shiloh. Shortly after

19 Benjamin was transferred to Shiloh, in August 2018, St. PJ’s released Mateo to his

20 grandmother’s care. While Mateo now lives in the comfort of Isabella’s home

21 hundreds of miles away in Los Angeles, Benjamin continues to languish in detention

22 without the benefits of the daily protection and care of his older brother.

23

92. At Shiloh, personnel continued to administer Guanfacine and

24 Risperidone to Benjamin. Within three weeks of his arrival, Shiloh administered a

25 new psychotropic medication, Lexapro, and increased the dosages of both Guanfacine

26 and Lexapro administered to Benjamin. Upon information and belief, as was the case

27 at St. PJ’s, ORR did not involve a neutral decision maker in the initial determination

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1 of whether to prescribe psychotropic medications to Benjamin or in ongoing review

2 of those medications.

3

93. Upon information and belief, Benjamin will not be released from Shiloh

4 until medical personnel declare him psychologically sound and approve his release.

5 Benjamin’s experiences in ORR custody, including prolonged separation from his

6 family—in particular his mother, the only person with whom he communicates

7 effectively verbally—and administration of psychotropic medications without

8 informed consent, have exacerbated his mental health symptoms and made this

9 approval less likely, thereby delaying his release.

10

94. While Benjamin’s nondisabled brother has been released to his

11 grandmother, Benjamin has been placed at Shiloh and his release has been delayed on

12 the basis of his mental health needs, which are in no way being met in his current

13 placement.

14

95. Nine-year-old Benjamin remains detained at Shiloh, where he is

15 increasingly anxious and desperate to reunite with his brother and grandmother. Due

16 to ORR’s actions and inactions, Benjamin’s release has been unnecessarily delayed

17 and Benjamin has not been placed in the least restrictive setting.

18

V.

19

CLASS ACTION ALLEGATIONS

20

96. The named Plaintiffs bring this action pursuant to Federal Rule of Civil

21 Procedure 23(a) and (b)(2) on behalf of themselves and the following similarly

22 situated proposed class members:

23

All children in ORR custody pursuant to 6 U.S.C. § 279 and/or 8 U.S.C.

24 § 1232 —

25

(a) whom ORR refuses to release to parents or other available custodians

26

within thirty days of the proposed custodian’s submitting a complete

27

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family reunification packet on the ground that the proposed custodian is

2

or may be unfit;

3

(b) who have been, are or will be placed in a secure facility, medium-secure

4

facility, or RTC, or continued in any such facility for more than thirty

5

days, without being afforded notice and an opportunity to be heard

6

before a neutral and detached decisionmaker regarding the grounds for

7

such placement;

8

(c) who have been or will be administered psychotropic medication without

9

procedural safeguards, including obtaining informed consent or court

10

authorization prior to medicating a child, involving a neutral

11

decisionmaker in the initial determination of whether to prescribe

12

psychotropics to a child in ORR custody, and involving a neutral

13

decision-maker to conduct periodic reviews of those medications as

14

treatment continues;

15

(d) who are natives of non-contiguous countries and to whom ORR blocks

16

legal assistance in legal matters or proceedings involving their custody,

17

placement, release, and/or non-consensual consumption of psychotropic

18

drugs;

19

(e) who have, will have, or are perceived to have a behavioral, mental health,

20

intellectual and/or developmental disability, and who have been, are, or

21

will be placed in a secure facility, medium-secure facility, or RTC

22

because of such disability or perceived disability; or

23

(f) who have, will have, or are perceived to have a behavioral, mental health,

24

intellectual and/or developmental disability, and whose release has been,

25

is, or will be delayed or obstructed because of such disability or

26

perceived disability.

27

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1

97. The exact size of the proposed class is unknown, but likely includes

2 hundreds of children. The size of the class is so numerous that joinder of all members

3 is impracticable.

4

98. The claims of Plaintiffs and those of the proposed class members raise

5 common questions of law and fact concerning whether Defendants’ policies and

6 practices relating to the release, placement, treatment, and legal representation of

7 detained immigrant children are consistent with the Flores Settlement, § 235 of the

8 TVPRA, the Fifth Amendment to the United States Constitution, the First

9 Amendment of the Constitution, and Section 504 of the Rehabilitation Act. These

10 questions are common to the named Plaintiffs and the members of the proposed class

11 because Defendants have acted and will continue to act on grounds generally

12 applicable to the named Plaintiffs and the proposed class members. Plaintiffs’ claims

13 are typical of the class’s claims.

14

99. The prosecution of separate actions by individual members of the

15 proposed class would create a risk of inconsistent or varying adjudications

16 establishing incompatible standards of conduct for Defendants. Proposed class

17 members are predominantly indigent, non-English-speaking children who are being

18 denied basic fairness and/or being discriminated against on the basis of disability in

19 ORR’s prolonging their detention in lieu of releasing them to parents or other

20 proposed custodians, “stepped up” to RTC, secure or medium-secure placement

21 without notice or opportunity to be heard and/or on the basis of disability, and

22 administered psychotropic medications without a parent’s informed consent. The

23 proposed class members are under ORR’s exclusive physical control and often

24 understand little, if anything, about their rights under the Flores Settlement, the

25 TVPRA, the Constitution, or Section 504 of the Rehabilitation Act. ORR actively

26 obstructs lawyers from representing members of the proposed class in legal

27 proceedings relating to custody, placement, or release. Unless this matter proceeds as

28
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1 a class action, the majority of class members have little chance of securing judicial

2 review of the policies and practices challenged herein.

3

100. Defendants, their agents, employees, and predecessors and successors in

4 office have acted or refused to act, and will continue to act or refuse to act, on grounds

5 generally applicable to the class, thereby making injunctive relief and corresponding

6 declaratory relief appropriate with respect to the class as a whole. Plaintiffs will

7 vigorously represent the interests of unnamed class members. All members of the

8 proposed class will benefit by this action. The interests of the named Plaintiffs and

9 those of the proposed class members are identical.

10

101. Plaintiffs are represented by experienced and reputable lawyers

11 associated with non-profit public interest law firms and an international law firm

12 serving pro bono publico. Plaintiffs’ counsel includes attorneys with years of

13 experience litigating complex suits and class actions on behalf of children and foreign

14 nationals, including counsel for the plaintiff class in Flores v. Sessions.

15

VI.

16

ORR POLICY & PRACTICE VIOLATES DUE PROCESS

17 A. Defendants have violated Plaintiffs’ due process and family association rights,

18

the TVPRA, and the Flores Settlement in determining custodians’ fitness.

19

102. When children are held in government custody apart from their primary

20 caregivers for long periods, they suffer profound and long-lasting injury. The

21 American Academy of Pediatrics has explained that “highly stressful experiences,

22 like family separation, can cause irreparable harm, disrupting a child’s brain

23 architecture and affecting his or her short- and long-term health. This type of

24 prolonged exposure to serious stress—known as toxic stress—can carry lifelong

25 consequences for children.” Toxic stress is associated with increased rates of mental

26 health issues, risky health behaviors, and physical illness such as diabetes, cancer,

27 posttraumatic stress disorder (“PTSD”), and heart disease. Studies of immigrant

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1 children detained in the United States have discovered high rates of PTSD, anxiety,

2 depression, and suicidal ideation. A primary factor in recovering from such trauma is

3 reunification with a parent or other trusted adult. Without the presence of trusted

4 caregivers, children are often unable to cope with the psychological trauma and stress

5 associated with detention.

6

103. Paragraph 14 of the Flores Settlement requires ORR to release children

7 from immigration-related custody “without unnecessary delay” so long as their

8 continued detention is not required to secure availability for removal or to protect

9 safety. Paragraph 18 of the Settlement requires ORR to make “prompt and continuous

10 efforts” toward family reunifications and to release children to suitable custodians

11 without unnecessary delay.

12

104. Similarly, § 235(c)(2)(A) of the TVPRA, codified at 8 U.S.C.

13 1232(c)(2)(A), requires ORR to “promptly” place detained children “in the least

14 restrictive setting that is in the best interest of the child,” generally, with “a suitable

15 family member . . . .” TVPRA § 235(c)(3)(A) provides, “[A]n unaccompanied alien

16 child may not be placed with a person or entity unless the Secretary of Health and

17 Human Services makes a determination that the proposed custodian is capable of

18 providing for the child’s physical and mental well-being.”

19

105. Paragraph 24A of the Flores Settlement guarantees detained children the

20 right to a hearing during which an immigration judge reviews whether they may be

21 continued in custody because they are dangerous or unusually likely to abscond.

22 However, neither the Flores Settlement nor the TVPRA prescribe what process is due

23 where ORR unreasonably prolongs a juvenile’s detention or refuses to release him or

24 her because ORR questions whether an available parent or other potential custodian

25 is capable of providing for the child’s physical and mental well-being.

26

106. Plaintiffs have substantial liberty interests in being free from government

27 custody, in preserving their family unity and the ability for their family to care for

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1 them, and in family association. Defendants may not abridge these liberty interests

2 without appropriate procedures to protect against erroneous deprivation.

3

107. Plaintiffs have a fundamental right to the supervision, companionship,

4 and care of their parents. Absent a showing of parental unfitness, the government may

5 not keep children from their parents or refuse to release children into the custody of

6 their parents.

7

108. As a matter of both policy and practice, ORR does not make prompt and

8 continuous efforts toward family reunification and the release of children in its

9 custody. Instead, it delays or refuses to make determinations about whether proposed

10 custodians are or may be unfit.

11

109. As a matter of both policy and practice, ORR affords Plaintiffs and their

12 proposed class members little or no procedural protection against prolonged detention

13 on the ground that their parents or other proposed custodians are or may be unfit.

14 ORR’s nominal procedures for vetting detained children’s parents or other proposed

15 custodians do not appear in the Code of Federal Regulations, nor even in a semi-

16 permanent practice manual. Rather, they appear on ORR’s web page,

17 www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-

18 section-2 (last visited September 7, 2018), and are subject to change without prior

19 notice or opportunity for comment. Under its nominal procedures —

20

(a) ORR does not decide within any time certain whether a detained minor’s

21

parent or other proposed custodian is suitable;

22

(b) ORR does not provide a detained minor, or his or her parent or other

23

proposed custodian, an opportunity to inspect or rebut evidence

24

derogatory of the proposed custodian’s fitness;

25

(c) ORR does not afford a detained minor or his or her proposed custodian

26

a hearing before a neutral and detached decisionmaker either before or

27

after ORR declares a potential custodian unfit;

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(d) Once ORR decides a proposed custodian is unsuitable, it need not inform

2

a detained minor or the proposed custodian of its decision for up to 30

3

days;

4

(e) ORR allows detained minors no appeal or other administrative recourse

5

from its finding a proposed custodian unsuitable, though such a decision

6

nearly always prolongs the minor’s detention;

7

(f) Except for parents and legal guardians, ORR allows rejected custodians

8

no appeal from a decision declaring them unfit, which nearly always

9

prolongs an affected minor’s detention;

10

(g) As for parents and legal guardians, ORR’s policy requires them to submit

11

a written request to HHS’s Assistant Secretary for Children and Families

12

to be heard regarding ORR’s declaring them unfit, but a hearing need not

13

be convened within any time certain.

14

110. Whether a parent or other custodian is qualified to care for a child is a

15 matter generally committed to state and local governments. Plaintiffs are informed

16 and believe that in all fifty states and their subdivisions, children may not be detained

17 for want of a qualified custodian without affording them and/or their parents or other

18 potential custodians a prompt hearing before a judge or other neutral and detached

19 decisionmaker, during which allegations of unfitness are tested via trial-like

20 procedures and any ensuing finding of unsuitability must be based on competent

21 evidence.

22

111. In contrast, in refusing to release Plaintiffs and those similarly situated

23 to parents and other available custodians on grounds of fitness, ORR provides neither

24 Plaintiffs nor those similarly situated —

25

(a) an evidentiary hearing;

26

(b) the right to review or rebut adverse witnesses and evidence;

27

(c) appointed counsel, guardians ad litem, or interpreters;

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(d) a finding of suitability or lack thereof by a neutral and detached decision-

2

maker under defined and consistent legal standards;

3

(e) the right to a prompt determination of a proposed custodian’s fitness; or

4

(f) the right to appeal administratively adverse decisions.

5

112. In practice, ORR often refuses to decide whether a detained child’s

6 proposed custodian is fit, thereby needlessly prolonging detention and family

7 separation.

8

113. On information and belief, Plaintiffs allege that, to date, HHS’s Assistant

9 Secretary for Children and Families has never convened an actual hearing before a

10 neutral arbiter to review a decision by ORR declaring a detained child’s proposed

11 custodian unsuitable.

12

114. ORR’s procedures for determining whether parents and other proposed

13 custodians are suitable creates an unreasonable risk that Plaintiffs and those

14 similarly situated will be erroneously —

15

(a) subjected to prolonged detention;

16

(b) placed in overly restrictive settings that are not in their best interests;

17

(c) administered psychotropic medications; and

18

(d) separated from parents and family.

19

115. As a direct and proximate result of ORR’s torpid, opaque, and

20 perfunctory procedures for declaring detained children’s parents and other proposed

21 custodians unsuitable, Plaintiffs and those similarly situated have been and will be

22 erroneously—

23

(a) subjected to prolonged detention;

24

(b) placed in overly restrictive settings that are not in their best interests;

25

(c) administered psychotropic medications; and

26

(d) separated from parents and family.

27

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116. The government’s refusing to release children to their parents’ custody,

2 or to the custody of adult siblings and other family members, deprives plaintiffs of

3 their fundamental rights without any reasonable justification or legitimate purpose,

4 violates the substantive and procedural components of the Due Process Clause, and

5 violates the freedom of association clause of the First Amendment. In prolonging the

6 separation of children from their proposed custodians, Defendants also compromise

7 the short and long-term health of Plaintiffs and those similarly situated.

8 B. Defendants have violated Plaintiffs’ due process rights, the TVPRA, and the

9

Flores Settlement by placing them in unlicensed placements.

10

117. Definition 6 and paragraph 19 of the Flores Settlement require ORR to

11 place a detained child in a non-secure facility holding a state license to care for

12 dependent children except in circumstances enumerated in Settlement paragraph 21:

13 i.e., the child has committed a violent crime or non-petty delinquent act, has

14 threatened violence during federal custody, is an unusual escape-risk, or is so

15 disruptive that secure confinement is necessary to ensure the welfare of the minor or

16 others.

17

118. Section 235(c)(2)(A) of the TVPRA similarly requires ORR to place

18 detained children promptly “in the least restrictive setting that is in the best interest

19 of the child . . .” and bars its placing a child “in a secure facility absent a determination

20 that the child poses a danger to self or others or has been charged with having

21 committed a criminal offense.”

22

119. TVPRA § 235(c)(2)(A) provides, “The placement of a child in a secure

23 facility shall be reviewed, at a minimum, on a monthly basis, in accordance with

24 procedures prescribed by the Secretary, to determine if such placement remains

25 warranted.” The TVPRA is otherwise silent with respect to what process is due when

26 ORR places or continues a child in an RTC, medium-secure or secure facility.

27

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120. Federal law and policy recognize that both children and communities are

2 better off when children are not needlessly incarcerated. A vast body of research has

3 established that detaining children interferes with healthy development, exposes

4 youth to abuse, undermines educational attainment, makes children with mental

5 health needs worse off, and puts children at greater risk of self-harm. Juvenile

6 detention facilities often respond to threats of self-harm in ways that further endanger

7 youth, such as by placing them in isolation. Schooling children receive during

8 detention is often substandard, which places them at serious disadvantage when they

9 enter school after having been detained for substantial periods. Research has

10 demonstrated that incarceration also exacerbates pre-existing trauma.

11

121. The vast majority of children who end up in secure custody through ORR

12 have never been charged, let alone convicted, of crimes in the U.S. or in their home

13 country. Often, ORR places the most vulnerable children—those with the greatest

14 mental health needs—in medium secure, secure or RTC facilities. Prolonging the

15 detention of children with mental health needs in such facilities is profoundly

16 injurious. ORR’s detaining children in such facilities exacerbates mental health issues

17 to the point that ORR eventually consigns children to mental hospitals.

18

122. The Fifth Amendment’s Due Process Clause protects children’s freedom

19 from unnecessary physical restraint, including placement in RTCs, medium-secure or

20 secure facilities. ORR’s placing children in such facilities is constrained by due

21 process, which requires adequate procedural protections to ensure that ORR’s

22 asserted justification for such placement outweighs children’s constitutionally

23 protected interest in avoiding excessive physical restraint. Due process requires that

24 ORR give Plaintiffs and their proposed class members meaningful notice and an

25 opportunity to be heard before it places them in RTCs, medium-secure or secure

26 facilities and an ongoing review with commensurate protections every thirty days.

27

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123. As a matter of policy and practice, Defendant ORR affords detained

2 children wholly inadequate procedural protection against erroneous placement in

3 RTCs, secure or medium-secure facilities. ORR’s procedures for initially placing a

4 child in an RTC, secure or medium-secure facility and for periodically reviewing the

5 need for such placements appear nowhere in the Code of Federal Regulations. Rather,

6 they appear on ORR’s web page and are subject to change without prior notice or

7 opportunity for public comment.

8

124. In practice, ORR’s placing children in RTCs, secure or medium-secure

9 facilities results from an opaque and peremptory process in which youth are

10 summarily “stepped up” to such facilities without any meaningful opportunity to be

11 heard, either before or after being stepped up, regarding the reasons for placing them

12 in such facilities. In placing children in RTCs, secure and medium-secure facilities,

13 ORR provides neither Plaintiffs nor those similarly situated —

14

(a) an evidentiary hearing;

15

(b) notice of the placement decision or individualized reasoning therefor;

16

(c) an opportunity to present evidence and witnesses;

17

(d) the right to a neutral adjudicator;

18

(e) an opportunity to review or rebut adverse witnesses and evidence;

19

(f) the right to counsel, guardians ad litem, or interpreters;

20

(g) a finding of dangerousness or other adequate cause for such placement

21

under coherent and consistent legal standards;

22

(h) the right to appeal administratively from adverse decisions; or

23

(i) a monthly review of whether their placement in RTCs, medium-secure,

24

or secure facilities remains warranted.

25

125. Pursuant to paragraph 24A of the Flores Settlement and orders issued by

26 the District Court for the Central District of California, immigration judges may

27 review ORR’s decisions to continue detaining children in federal custody on grounds

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1 they are dangerous or unusual flight-risks. ORR regularly places children in RTCs,

2 secure and medium-secure facilities on the ground that they are dangerous or unusual

3 flight-risks, contrary to immigration judges’ determinations that they are neither.

4

126. Plaintiffs are informed and believe that in all fifty states and their

5 subdivisions, it is unlawful to place children in RTCs, secure or medium-secure

6 facilities without affording them a prompt and meaningful opportunity to be heard

7 before a neutral and detached decisionmaker regarding the grounds for such

8 placement.

9

127. The lack of procedural protection against erroneous ORR decisions to

10 place children in RTCs, secure and medium-secure facilities creates an unreasonable

11 risk that youth will be placed in overly restrictive settings against their best interests,

12 subjected to needless restrictions on their personal liberty, and unjustly suffer the

13 trauma and stigma of imprisonment. As a direct and proximate result of ORR’s

14 peremptorily consigning children to RTCs, secure and medium-secure facilities,

15 Plaintiffs and their proposed class members have been and are being erroneously:

16 (a) placed in restrictive settings against their best interests; (b) subjected to excessive

17 restrictions on their personal liberty; and (c) subjected to the trauma and stigma of

18 imprisonment.

19

128. Placement in RTCs, secure and medium-secure facilities further injures

20 Plaintiffs and those similarly situated because ORR, as a matter of policy and practice,

21 delays release to parents and other reputable custodians of youth whom it has ever

22 confined in such facilities, even when such placement is based on incomplete,

23 inaccurate, or erroneous evidence, and even if ORR subsequently transfers a child to

24 a non-secure dependent care facility.

25

129. As a matter of policy and practice, ORR has refused to release children

26 whom it has ever placed in a secure or medium-secure facility until and unless its

27 director or his designee approves release. In practice, this policy prolongs non-

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1 dangerous children’s detention for weeks or months notwithstanding that parents or

2 other reputable custodians are available to care for them.

3

130. As a matter of policy and practice, ORR refuses to release children whom

4 it has placed in RTCs until and unless RTC medical personnel declare the child

5 mentally fit. ORR affords children no hearing or other meaningful procedural

6 recourse when RTC medical personnel refuse to declare them mentally fit. As a direct

7 and proximate result of said policy and practice, children placed in RTCs suffer the

8 functional equivalent of indefinite civil commitment without due process of law.

9

131. On information and belief, Plaintiffs further allege that ORR regularly

10 insists that the parents and other potential custodians possess novel and superfluous

11 qualifications to receive custody of children whom ORR has ever placed in an RTC,

12 secure or medium-secure facility. Such qualifications include being cancer-free,

13 having income sufficient to supply released children with psychotropic drugs,

14 repetitive fingerprinting, and supplying fingerprints of third parties who do not reside

15 in the proposed custodian’s home. As a direct and proximate result of said policy and

16 practice, children placed in RTCs, secure and medium-secure facilities have been and

17 are being erroneously: (a) placed in restrictive settings against their best interests; and

18 (b) subjected to excessive restrictions on their personal liberty.

19 C. Defendants have subjected Plaintiffs to the administration of psychotropic

20

drugs without having procedural safeguards in place, including obtaining

21

informed consent.

22

132. Paragraph 7 of the Flores Settlement provides in pertinent part: “The

23 INS shall assess minors to determine if they have special needs ….” A child may have

24 special needs “due to drug or alcohol abuse, serious emotional disturbance, mental

25 illness or retardation, or a physical condition or chronic illness that requires special

26 services or treatment.” Paragraph 12 of the Flores Settlement provides in pertinent

27 part: “Following arrest, the INS shall hold minors in facilities that are safe and sanitary

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1 and that are consistent with the INS’s concern for the particular vulnerability of

2 minors.” The Flores Settlement further provides that facilities in which ORR places

3 children with mental health needs must “meet those standards . . . set forth in Exhibit

4 1.” Flores Settlement ¶¶ 6, 8. Exhibit 1 requires that licensed programs “comply with

5 all applicable state child welfare laws and regulations . . . and shall provide or arrange

6 for the following services for each minor in its care: . . . appropriate mental health

7 interventions when necessary.”

8

133. Section 235(c)(2) of the TVPRA requires ORR to provide children in its

9 custody with safe and secure placements. Placements that involve the unnecessary or

10 coerced administration of psychotropic medications are neither “safe” nor “secure.”

11

134. The Flores Settlement incorporates by reference relevant law of the state

12 in which children are placed and thereby requires ORR to comply with applicable

13 child welfare laws and regulations when administering psychotropic medications to

14 Plaintiffs and those similarly situated. Plaintiffs are informed and believe, and on such

15 basis allege, that the laws of all states in which ORR places Plaintiffs and those

16 similarly situated require ORR to obtain informed parental consent or its lawful

17 equivalent when administering psychotropic medications to minors.

18

135. For example, Texas Administrative Code sections 748.2001(b),

19 748.2253, 748.2255 require informed consent be provided prior to administering

20 psychotropic drugs to children in state custody. Texas Family Code section

21 266.004(a) provides that before children in the care of the Texas Department of

22 Family and Protective Services may receive medical care, someone authorized by a

23 court must provide consent.

24

136. Similarly, California Welfare and Institutions Code sections 369.5(a)(1)

25 and 739.5(a)(1) provide that only a juvenile court may lawfully authorize the

26 administration of psychotropic medication to children who are in state custody, unless

27

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1 the juvenile court specifically authorizes a parent to do so after making specific

2 findings regarding the parent’s fitness and capacity to do so.

3

137. Plaintiffs and their proposed class members have a substantial liberty

4 interest protected by the Due Process Clause of the Fifth Amendment in being free

5 from the unauthorized and unnecessary administration of psychotropic medications.

6 Plaintiffs are entitled to constitutionally sufficient procedures to protect against

7 erroneous deprivation of this interest.

8

138. Psychotropic medications are powerful drugs that act on the central

9 nervous system and affect cognition, emotions, and behavior. Such drugs should only

10 be administered in combination with other mental health supports to treat specifically

11 diagnosed psychiatric illnesses and mental health disorders. Few psychotropic

12 medications have been approved by the FDA as safe and effective to treat children,

13 and careful oversight and monitoring is accordingly required when children are given

14 such drugs. Such medications should not be used as chemical straitjackets to control

15 behavior.

16

139. Serious, long-lasting adverse effects are common for individuals given

17 psychotropic medications. The full risks of giving such drugs to children are not well

18 understood, although psychotropics are known to cause serious and sometimes

19 irreversible side effects in adults, including psychosis, seizures, movement disorders,

20 suicidal ideation, aggression, extreme weight gain, and organ damage. Increasing the

21 number of psychotropic drugs children take concurrently increases the likelihood of

22 adverse reactions and long-term side effects. Close and continuing scrutiny of

23 children given such medications is therefore critical.

24

140. As a matter of policy and practice, ORR authorizes and condones the

25 administration of psychotropic drugs to children entirely without procedural

26 safeguards, including informed parental consent. Rather, ORR authorizes detention

27 facility staff to “consent” to the involuntary, long-term administration of psychotropic

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1 drugs to juveniles in their parents’ stead, even when such parents are readily available

2 to ORR and/or the detention facility to give or withhold such consent.

3

141. As a matter of policy and practice, ORR also fails to provide any

4 substantial procedural safeguards against unnecessary or unauthorized administration

5 of psychotropic drugs to children in its custody. At a minimum, such safeguards must

6 include a neutral decisionmaker’s approval of the initial decision to administer

7 psychotropics to a child, as well as periodic reviews to ensure that youth are not

8 administered psychotropic medications unnecessarily, for too long, at harmful

9 dosages or in harmful combinations.

10

142. On information and belief, Plaintiffs allege that ORR failed to have any

11 of these procedural safeguards in place prior to administering psychotropic

12 medications to the named Plaintiffs. In addition, the psychiatrist who currently

13 prescribes psychotropic medications to children at ORR’s Shiloh RTC, Dr. Javier

14 Ruíz-Nazario, has received payments from drug companies that manufacture

15 psychotropic drugs given to children at Shiloh RTC.

16 D. Defendants have obstructed Plaintiffs’ access to counsel.

17

143. Paragraph 24A of the Flores Settlement requires ORR to give detained

18 children a hearing before an immigration judge to review whether they are dangerous

19 or likely to abscond. Settlement paragraph 24D provides that Defendants must

20 “promptly provide each minor not released with . . . the list of free legal services

21 providers compiled pursuant to INS regulation . . . .” Exhibit 1, paragraph 14 of the

22 Flores Settlement requires licensed facilities in which Defendants detain minors to

23 provide “information regarding the availability of free legal assistance, the right to be

24 represented by counsel at no expense to the government . . . .” Exhibit 6 of the Flores

25 Settlement advises detained minors, “If you believe that you have not been properly

26 placed or that you have been treated improperly, you may ask a federal judge to review

27

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1 your case. You may call a lawyer to help you do this. If you cannot afford a lawyer,

2 you may call one from the list of free legal services given to you with this form.”

3

144. Section 235(c)(5) of the TVPRA directs Defendant HHS Secretary to

4 “ensure, to the greatest extent practicable and consistent with section 292 of the

5 Immigration and Nationality Act (8 U.S.C. § 1362), that all unaccompanied alien

6 children who are or have been in the custody of the Secretary or the Secretary of

7 Homeland Security, and who are not [from contiguous countries], have counsel to

8 represent them in legal proceedings or matters and protect them from

9 mistreatment . . . .” Section 279(b)(A) of the HSA makes ORR responsible for

10 “developing a plan to be submitted to Congress on how to ensure that qualified and

11 independent legal counsel is timely appointed to represent the interests of each such

12 [unaccompanied alien] child . . . .” Immigration regulations, including 8 C.F.R.

13 §§ 287.3(c), 1003.62, 1240.10(a)(2) and 1292.1 et seq., generally guarantee Plaintiffs

14 and their proposed class members the right to be represented by retained and pro bono

15 counsel in proceedings before U.S. Citizenship and Immigration Services and the

16 Executive Office for Immigration Review.

17

145. In furtherance of TVPRA § 235(c)(5), Defendant HHS contracts with the

18 Vera Institute of Justice (“VIJ”), a non-profit organization, to coordinate the delivery

19 of free legal services to unaccompanied children from non-contiguous countries who

20 are or have been in ORR custody. VIJ in turn subcontracts with non-profit legal aid

21 providers to counsel and represent such children in applying for affirmative

22 immigration benefits, such as asylum or Special Immigrant Juvenile Status, and in

23 asserting other defenses against removal.

24

146. In many regions of the country, VIJ-funded legal services providers are

25 the only legal counsel available to juveniles in ORR custody. Plaintiffs and the

26 members of the proposed class are almost uniformly indigent, speak little or no

27 English, and have little or no ability to represent themselves in hearings pursuant to

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1 paragraph 24A of the Flores Settlement or in any other legal proceedings involving

2 ORR’s custody, release, placement or medication decisions.

3

147. On information and belief, ORR has no eligibility standards for

4 providing VIJ-funded legal services to detained children. Rather, ORR exercises

5 opaque and arbitrary discretion to prescribe those legal matters or proceedings in

6 which VIJ-funded legal providers may represent detained children and those in which

7 they may not.

8

148. As a matter of policy and practice, ORR routinely bars VIJ-funded legal

9 services providers from representing unaccompanied children from non-contiguous

10 countries in legal proceedings involving ORR’s custody, release, placement, and

11 medication decisions, even when such legal services providers have the time and

12 desire to undertake such representation.

13

149. Legal proceedings involving ORR’s custody, release, placement, and

14 medication decisions, including hearings pursuant to paragraph 24A of the Flores

15 Settlement, are “legal proceedings or matters” within the meaning of TVPRA

16 § 235(c)(5).

17

150. By blocking VIJ-funded legal services providers from representing

18 children in legal proceedings involving ORR’s custody, release, placement and

19 medication decisions, ORR forces Plaintiffs and those similarly situated to fend for

20 themselves in a complex and foreign adversarial legal system with little hope of

21 prevailing. Without meaningful access to counsel, Plaintiffs and those similarly

22 situated are denied a fair chance of succeeding in legal challenges to ORR’s custody,

23 release, placement and medication decisions and, a fortiori, suffer prolonged

24 detention and the harms extended confinement and family separation inflicts. ORR

25 deprives youth of liberty for years, which is comparable to imprisonment for a felony

26 conviction.

27

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1

151. In blocking Plaintiffs and those similarly situated from receiving

2 assistance in legal matters and proceedings involving ORR’s custody, placement,

3 medication, and release decisions, ORR acts arbitrarily, capriciously, abusively of

4 discretion, and contrary to children’s best interests, and obstructs lawyers from

5 discharging their duty of zealous representation.

6

152. As a direct and proximate result of ORR’s blocking VIJ-funded legal

7 services providers from representing Plaintiffs and those similarly situated children

8 in legal proceedings involving ORR’s custody, release, placement, or medication

9 decisions, including hearings pursuant to paragraph 24A of the Flores Settlement,

10 Plaintiffs and those similarly situated are being: (a) improperly administered

11 psychotropic drugs; (b) erroneously denied placement in the least restrictive setting

12 that is in their best interest and appropriate to their needs; and (c) erroneously denied

13 release to available custodians without unnecessary delay.

14

VII.

15 A. Defendants have violated Plaintiffs’ rights under Section 504 by unnecessarily

16

placing them in restrictive settings on the basis of disability.

17

153. Under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, “[n]o

18 otherwise qualified individual with a disability . . . shall, solely by reason of her or

19 his disability, be excluded from the participation in, be denied the benefits of, or be

20 subjected to discrimination under any program or activity receiving Federal financial

21 assistance or under any program or activity conducted by any Executive agency . . . .”

22

154. Members of the Plaintiff class are qualified individuals with disabilities

23 because they have, have a record of having, and/or are regarded as having a physical

24 or mental impairment which substantially limits one or more major life activities, such

25 as caring for one’s self, learning, and working, and because they are unaccompanied

26 alien children whose placement, care, custody, and release is the responsibility of

27 ORR. 45 C.F.R. § 84.3(j), (l).

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155. ORR’s placement, care, custody, and release of immigrant children is a

2 program or activity conducted by an Executive agency and which receives Federal

3 financial assistance.

4

156. HHS regulations implementing Section 504 prohibit any entity receiving

5 federal financial assistance from “[a]fford[ing] a qualified handicapped person an

6 opportunity to participate in or benefit from [an] aid, benefit, or service that is not

7 equal to that afforded others;” “[p]rovid[ing] a qualified handicapped person with an

8 aid, benefit, or service that is not as effective as that provided to others;”

9 “[p]rovid[ing] different or separate aid, benefits, or services to handicapped persons

10 or to any class of handicapped persons unless such action is necessary to provide

11 qualified handicapped persons with aid, benefits, or services that are as effective as

12 those provided to others;” and “[o]therwise limit[ing] a qualified handicapped person

13 in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others

14 receiving an aid, benefit, or service.” 45 C.F.R. § 84.4(b)(1)(ii), (iii), (iv), (vii).

15

157. The aids, benefits, and services ORR provides to immigrant children

16 need not “produce the identical result . . . for handicapped and nonhandicapped

17 persons, but [they] must afford handicapped persons equal opportunity to obtain the

18 same result, to gain the same benefit, or to reach the same level of achievement, in

19 the most integrated setting appropriate to the person’s needs.” 45 C.F.R. § 84.4(b)(2).

20

158. Upon information and belief, as a matter of both policy and practice,

21 ORR is not equipped to provide even minimal mental health services or supports to

22 children it places in most shelters.

23

159. As a matter of both policy and practice, ORR therefore steps up children

24 who need such services and supports, or whom shelter staff believe need such services

25 and supports, to more restrictive placements, including secure facilities, medium

26 secure facilities, or RTCs. ORR licenses only two RTCs in the entire country, so such

27

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1 a placement often results in ORR abruptly separating young people with mental health

2 needs or perceived needs from their peers and transporting them across the country.

3

160. ORR steps up some children with minimal mental health needs,

4 including children who require counseling or medication management that could be

5 effectively provided in a shelter setting.

6

161. Members of the Plaintiff class who have or are perceived to have a

7 behavioral, mental health, intellectual, and/or developmental disability and whose

8 needs therefore exceed or are perceived to exceed the resources of ORR shelters are

9 consequently segregated from their non-disabled peers on the basis of their disabilities

10 and are unnecessarily placed in restrictive settings, instead of the most integrated

11 setting appropriate to their needs.

12

162. In warehousing youth with disabilities in secure facilities, medium

13 secure facilities, and RTCs, instead of providing them appropriate mental health

14 services in the most integrated setting appropriate to their needs, Defendants

15 unlawfully discriminate against youth on the basis of disability in violation of Section

16 504 of the Rehabilitation Act.

17 B. Defendants have violated Plaintiffs’ rights under Section 504 by delaying

18

and/or obstructing their release because of disability.

19

163. Under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, “[n]o

20 otherwise qualified individual with a disability . . . shall, solely by reason of her or

21 his disability, be excluded from the participation in, be denied the benefits of, or be

22 subjected to discrimination under any program or activity receiving Federal financial

23 assistance or under any program or activity conducted by any Executive agency. . . .”

24

164. Members of the Plaintiff class are qualified individuals with disabilities

25 because they have, have a record of having, and/or are regarded as having a physical

26 or mental impairment which substantially limits one or more major life activities, such

27 as caring for one’s self, learning, and working, and because they are unaccompanied

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1 alien children whose placement, care, custody, and release is the responsibility of

2 ORR. 45 C.F.R. § 84.3(j), (l).

3

165. ORR’s placement, care, custody, and release of immigrant children is a

4 program or activity conducted by an Executive agency and which receives Federal

5 financial assistance.

6

166. HHS regulations implementing Section 504 prohibit any entity receiving

7 federal financial assistance from “[a]fford[ing] a qualified handicapped person an

8 opportunity to participate in or benefit from [an] aid, benefit, or service that is not

9 equal to that afforded others;” “[p]rovid[ing] a qualified handicapped person with an

10 aid, benefit, or service that is not as effective as that provided to others;”

11 “[p]rovid[ing] different or separate aid, benefits, or services to handicapped persons

12 or to any class of handicapped persons unless such action is necessary to provide

13 qualified handicapped persons with aid, benefits, or services that are as effective as

14 those provided to others;” and “[o]therwise limit[ing] a qualified handicapped person

15 in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others

16 receiving an aid, benefit, or service.” 45 C.F.R. § 84.4(b)(1)(ii), (iii), (iv), (vii).

17

167. “A recipient may not, directly or through contractual or other

18 arrangements, utilize criteria or methods of administration (i) that have the effect of

19 subjecting qualified handicapped persons to discrimination on the basis of handicap,

20 [or] (ii) that have the purpose or effect of defeating or substantially impairing

21 accomplishment of the objectives of the recipient’s program or activity with respect

22 to handicapped persons.” 45 C.F.R. § 84.4(b)(4).

23

168. The methods of administration utilized by Defendants in providing for

24 the placement, care, custody, and release of immigrant children discriminate on the

25 basis of disability. They further have the effect of substantially impairing

26 accomplishment of the objective of release to an appropriate sponsor with respect to

27 children with disabilities.

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1

169. Upon information and belief, as a matter of policy and practice, ORR is

2 not equipped to provide even minimal mental health services or supports to children

3 it places in most shelters.

4

170. As a matter of policy and practice, ORR steps up children who need

5 mental health services and supports, or whom shelter staff believe need such services

6 and supports, to more restrictive placements, including secure facilities, medium

7 secure facilities, or RTCs. Members of the Plaintiff class who have or are perceived

8 to have a behavioral, mental health, intellectual, and/or developmental disability are

9 therefore placed in such restrictive placements on the basis of disability.

10

171. Placement in secure facilities, medium-secure facilities, or RTCs delays

11 release to parents and other custodians of youth.

12

172. As a matter of policy and practice, ORR has refused to release children

13 whom it has ever placed in a secure or medium secure facility until and unless its

14 director or his designee approves release. In practice, this policy prolongs children’s

15 detention for weeks or months even when parents or other reputable custodians are

16 available to care for them. When children are placed in secure or medium secure

17 facilities because of disability, this policy and practice results in the prolonged

18 detention and separation of children from their families on the basis of disability.

19

173. As a matter of policy and practice, ORR refuses to release children whom

20 it has placed in RTCs until and unless RTC medical personnel declare the child

21 mentally fit. When children are placed in RTCs because of disability, this policy and

22 practice results in the prolonged separation of children from their families on the basis

23 of disability.

24

174. On information and belief, Plaintiffs further allege that ORR regularly

25 insists that the parents and other potential custodians possess novel and superfluous

26 qualifications to receive custody of children whom ORR has ever placed in an RTC,

27 secure, or medium secure facility. When children are placed in restrictive settings

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1 because of disability, such practices result in the prolonged separation of children

2 from their families on the basis of disability.

3

175. Prolonged detention of children with behavioral, mental health,

4 intellectual, and/or developmental disabilities can exacerbate their disabilities and

5 result in deterioration of their mental health. By placing children with disabilities in

6 restrictive settings and prolonging their detention and separation from their families,

7 Defendants exacerbate their symptoms, making it less likely that they will be

8 approved for release, and thereby further prolonging their detention.

9

176. Defendants’ methods of administration therefore have the effect of

10 discriminating against children with disabilities and substantially impairing

11 accomplishment of the objectives of ORR’s programs and activities with respect to

12 such children in violation of Section 504. Defendants are subjecting children to

13 prolonged detention and separation from their families based on their disabilities.

14

177. Defendants fail to make reasonable accommodations in policies,

15 practices, and procedures that are necessary to avoid discrimination on the basis of

16 disability. Specifically, inter alia, Defendants fail to provide adequate and appropriate

17 mental health services in an integrated setting; fail to implement trauma-sensitive

18 policies and procedures for children with disabilities in ORR custody; and fail to

19 afford children with disabilities access to counsel to challenge restrictive placements

20 that prolong their detention.

21

VIII.

22

IRREPARABLE INJURY

23

178. Plaintiffs have suffered and will continue to suffer irreparable harm

24 because of Defendants’ policies and practices as challenged herein. ORR has deprived

25 and will continue to deprive Plaintiffs and those similarly situated of their rights under

26 the First and Fifth Amendments, the TVPRA, the Flores Settlement, and Section 504

27 of the Rehabilitation Act. ORR confines children to jail-like settings without affording

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1 them a meaningful or timely opportunity to be heard regarding the reasons for such

2 placement; prolongs children’s detention on the ground that their parents or other

3 available custodians are or may be unfit, while affording neither detained children nor

4 their proposed custodians a meaningful or timely opportunity to be heard regarding a

5 proposed custodian’s fitness; places children in facilities in which it knows they will

6 be administered powerful psychotropic medications without procedural safeguards;

7 blocks lawyers from representing detained children with respect to placement,

8 administration of psychotropic medications, or release to available custodians;

9 unnecessarily places youth in restrictive settings on the basis of disability; and delays

10 and/or obstructs their release on the basis of disability. In doing so, Defendants have

11 profoundly undermined the health and well-being of Plaintiffs and those similarly

12 situated along multiple domains, as described above.

13

IX.

14

FIRST CLAIM FOR RELIEF

15 [DENIAL OF DUE PROCESS: DETERMINING CUSTODIANS’ FITNESS]

16

179. Plaintiffs hereby incorporate by reference Paragraphs 1-178 of this

17 Complaint as though fully set forth here.

18

180. As a matter of policy and practice Defendants unreasonably and

19 unnecessarily delay or refuse to release children to parents, close family members,

20 and other available custodians on the ostensible grounds that such custodians are or

21 may be unfit, and they do so without affording detained minors or their proposed

22 custodians a timely, prompt, or meaningful opportunity to be heard regarding such

23 custodians’ fitness. Defendants’ policies and practices violate the fundamental rights

24 of Plaintiffs and those similarly situated and demonstrate a deliberate indifference to

25 risk of harm to children.

26

181. Such policy and practice individually and collectively violate paragraphs

27 14 and 18 of the Flores Settlement, TVPRA § 235(c)(2)(A), the Administrative

28
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1 Procedure Act, 5 U.S.C. §§ 701 et seq., the procedural and substantive components

2 of the Due Process Clause of the Fifth Amendment of the United States Constitution,

3 and the Freedom of Association Clause of the First Amendment of the United States

4 Constitution.

5

X.

6

SECOND CLAIM FOR RELIEF

7

[DENIAL OF DUE PROCESS: RESTRICTIVE PLACEMENT]

8

182. Plaintiffs hereby incorporate by reference Paragraphs 1-178 of this

9 Complaint as though fully set forth here.

10

183. As a matter of policy and practice, Defendants place Plaintiffs and those

11 similarly situated in RTCs, secure facilities, and medium-secure facilities without

12 affording them a meaningful opportunity to be heard either prior or subsequent to

13 such placement.

14

184. Such policy and practice individually and collectively violate Definition

15 6 and paragraph 19 of the Flores Settlement, TVPRA § 235(c)(2)(A), the

16 Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., and the Due Process Clause

17 of the Fifth Amendment to the United States Constitution.

18

XI.

19

THIRD CLAIM FOR RELIEF

20

[UNLAWFUL ADMINISTRATION OF PSYCHOTROPIC DRUGS]

21

185. Plaintiffs hereby incorporate by reference Paragraphs 1-178 of this

22 Complaint as though fully set forth here.

23

186. As a matter of policy and practice, Defendants administer children

24 psychotropic drugs without procedural safeguards, including: obtaining informed

25 consent or the lawful equivalent; involving a neutral decision maker in the initial

26 determination of whether to prescribe psychotropic medications to children in ORR

27 custody; and conducting a periodic review of such treatment decisions to ensure that

28
First Amended Complaint

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1 youth are not administered psychotropic medications unnecessarily or at harmful

2 dosage levels or in harmful combinations.

3

187. Such policy and practice individually and collectively violate paragraphs

4 6, 8, 12, and 19 and Exhibit 1 of the Flores Settlement, the TVPRA, the

5 Administrative Procedure Act, 5 U.S.C. §§ 501 et seq., and the Due Process Clause

6 of the Fifth Amendment to the United States Constitution.

7

XII.

8

FOURTH CLAIM FOR RELIEF

9 [BLOCKING LEGAL ASSISTANCE IN MATTERS RELATING TO CUSTODY,

10

MEDICATION AND RELEASE]

11

188. Plaintiffs hereby incorporate by reference Paragraphs 1-178 of this

12 Complaint as though fully set forth here.

13

189. As a matter of policy and practice, ORR blocks VIJ-funded lawyers from

14 representing Plaintiffs and those similarly situated in legal matters and proceedings

15 involving ORR’s decisions regarding custody, release, medication, and placement.

16

190. Such policy and practice individually and collectively violate paragraphs

17 24A and 24D, Exhibit 1 paragraph 14, and Exhibit 6 of the Flores Settlement, TVPRA

18 § 235(c)(5), HSA § 279(b)(A), 8 C.F.R. §§ 287.3(c), 1003.62, 1240.10(a)(2) and

19 1292.1 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 501 et seq., and the Due

20 Process Clause of the Fifth Amendment to the United States Constitution.

21

XIII.

22

FIFTH CLAIM FOR RELIEF

23

[DISCRIMINATION ON THE BASIS OF DISABILITY]

24

191. Plaintiffs hereby incorporate by reference Paragraphs 1-178 of this

25 Complaint as though fully set forth here.

26

192. As a matter of policy and practice, ORR places Plaintiffs who have or

27 are perceived to have behavioral, mental health, intellectual and/or developmental

28
First Amended Complaint

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1 disabilities in restrictive settings, such as secure facilities, medium secure facilities,

2 or RTCs, because of their disabilities.

3

193. As a matter of policy and practice, ORR delays or obstructs the release

4 of Plaintiffs who have or are perceived to have behavioral, mental health, intellectual

5 and/or developmental disabilities to parents, close family members, and other

6 available custodians because of their disabilities.

7

194. Such policy and practice individually and collectively violate Section

8 504 of the Rehabilitation Act.

9

XIV.

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiffs pray that this Court —

12

1. assume jurisdiction of this cause;

13

2. certify this case as a class action on behalf of the class proposed herein;

14

3. enter declaratory judgment that Defendants’ policies and practices as

15 challenged herein are unlawful;

16

4. issue temporary and permanent injunctions enjoining Defendants

17 from—

18

(a) denying Plaintiffs or their proposed class members due process in

19

evaluating the fitness of parents and other available custodians;

20

(b) denying Plaintiffs or their class members due process in placing them in

21

RTCs, medium-secure or secure facilities;

22

(c) administering psychotropic drugs to Plaintiffs or their class members in

23

non-exigent circumstances without parental consent or the lawful

24

equivalent thereof;

25

(d) blocking Plaintiffs or their class members from receiving legal assistance

26

pursuant to 8 U.S.C. § 1232(c)(5) in hearings in legal proceedings or

27

28
First Amended Complaint

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1

matters involving ORR’s decisions regarding custody, placement, or

2

release;

3

(e) unnecessarily placing Plaintiffs in restrictive settings on the basis of

4

disability;

5

(f) delaying and/or obstructing Plaintiffs’ release on the basis of disability;

6

5. award the named Plaintiffs and their class members nominal damages

7 pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

8 U.S. 388 (1971);

9

6. award Plaintiffs costs and attorney’s fees pursuant to the Equal Access

10 to Justice Act, 28 U.S.C. § 2412; and

11

7. issue such further relief as the Court deems just and proper.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
First Amended Complaint

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1 Dated: September 7, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
First Amended Complaint

Respectfully submitted, CARLOS HOLGUÍN Center for Human Rights & Constitutional Law
HOLLY COOPER CARTER WHITE University of California Davis School of Law
LEECIA WELCH NEHA DESAI POONAM JUNEJA CRYSTAL ADAMS National Center for Youth Law
SUMMER WYNN MARY KATHRYN KELLEY JON CIESLAK MEGAN DONAHUE Cooley LLP
/s/ Carlos R. Holguín Carlos R. Holguín
/s/ Holly Cooper Holly Cooper
/s/ Leecia Welch Leecia Welch
/s/ Summer Wynn Summer Wynn
Attorneys for Plaintiffs

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 Case 2:18-cv-05741-DMG-PLA Document 82 Filed 09/10/18 Page 1 of 2 Page ID #:3112

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 10, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 1 of 2

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS - ORDER RE PLAINTIFF GABRIELA N.’S MOTION FOR PRELIMINARY INJUNCTION [48]

On August 17, 2018, Plaintiff Gabriela N. filed a motion for preliminary injunction, wherein she seeks an order requiring the Office of Refugee Resettlement (“ORR”) to immediately release her to Isaac N., her next friend and grandfather.1 [Doc. # 48.] The motion for preliminary injunctive relief has since been fully briefed. [Doc. ## 71, 75.] The Court deems this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.

Gabriela N. asserts that the following confer jurisdiction upon this Court: (1) Paragraph 37 of the Flores Agreement, (2) the Administrative Procedure Act (“APA”), and (3) 28 U.S.C. section 2241.2 See Reply re Gabriela N.’s MPI at 15–19 [Doc. # 75]. Yet, Paragraph 37 does not authorize the relief Gabriela N. seeks and the APA is not an independent jurisdictional basis for her motion. See Order re Lucas R.’s MPI at 4–6, 8–9 [Doc. # 79]. Further, insofar as Gabriela N. invokes the federal habeas statute, her immediate custodian is Niky Hymel, the ORR Federal Field Specialist responsible for supervising the facility in which Gabriela N. has been confined. See De La Cruz Decl. at ¶ 3 [Doc. # 73-1]; Order re Lucas R.’s MPI at 6–9 [Doc. # 79]. Because this official is located in the Southern District of Texas, see De La Cruz Decl. at ¶ 3 [Doc. # 73-1]; 28 U.S.C. § 124(b)(2), this Court lacks jurisdiction over Gabriela N.’s habeas claims. See Order re Lucas R.’s MPI at 6–9 [Doc. # 79].

1 Although Gabriela N.’s Notice of Motion requests “a preliminary injunction against Defendants’ continuing to detain Plaintiff Gabriela N. in lieu of release to her next friend and grandfather, Isaac N.,” Notice of Gabriela N.’s MPI at 3 [Doc. # 48], her proposed order seeks placement with Isaac, see Proposed Order re Gabriela N.’s MPI at 3 [Doc. # 48-34]. This distinction is immaterial, as ORR’s decision not to release a minor constitutes a “placement” determination. See Order re Lucas R.’s MPI at 4–5 [Doc. # 79].

2 Gabriela N. further argues that the TVPRA and 28 U.S.C. section 1331 authorize this Court to release her from custody. See Reply re Gabriela N.’s MPI at 17–19 [Doc. # 75]. For the reasons discussed in the Order re Lucas R.’s MPI, the Court rejects that contention. See Order re Lucas R.’s MPI at 3 n.3 [Doc. # 79].

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 10, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 2 of 2

Accordingly, the Court DENIES, without prejudice, Gabriela N.’s motion for preliminary injunction, due to lack of jurisdiction. This Order in no way precludes Gabriela N. from seeking appropriate relief in the United States District Court for the Southern District of Texas against ORR Federal Field Specialist Niky Hymel.

IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 10, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 1 of 2

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS - ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AS MOOT [51] AND DENYING WITHOUT PREJUDICE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [25]

On June 29, 2018, Plaintiffs filed a Class Action Complaint (“CAC”) alleging four causes of action: (1) denial of due process arising out of the Office of Refugee Resettlement’s (“ORR’s”) policies and practices concerning custodians’ fitness; (2) denial of due process arising out of ORR’s policies and practices relating to the restrictive placement of alien minors; (3) a cause of action arising out of ORR’s unlawful administration of psychotropic drugs; and (4) a cause of action arising out of ORR’s policy and practice of blocking legal assistance in matters relating to custody, medication, and release. [Doc. # 1.] On August 2, 2018, Plaintiffs filed a motion seeking certification of certain classes of alien minors who are subject to the policies and practices alleged in the CAC. [Doc. # 25.] On August 17, 2018, Defendants filed a motion to dismiss the CAC. [Doc. # 51.] The motion for class certification and the motion to dismiss are set for a hearing on September 21, 2018 at 9:30 a.m. [Doc. # 61.]

On September 7, 2018, Plaintiffs filed a First Amended Class Action Complaint (“FAC”) as a matter of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). [Doc. # 81.] Among other things, the FAC: (1) joins two new Plaintiffs to this action (i.e., Sirena P. and Benjamin F.), see FAC at 1,1 (2) includes a fifth cause of action for discrimination on the basis of disability in violation of Section 504 of the Rehabilitation Act, see id. at 56–57, and (3) indicates that Plaintiffs intend to represent two new classes of alien minors whom ORR has allegedly discriminated against on the basis of their disabilities, see id. at 30–31.
In light of Plaintiffs’ FAC, the Court DENIES as moot Defendants’ motion to dismiss.2 See In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 903 F. Supp. 2d 880, 893–94 (C.D.

1 All page references herein are to page numbers inserted by the CM/ECF system.

2 The FAC contends that “the Court should construe Defendants’ Motion [to Dismiss the CAC] as one to dismiss this [FAC] in order to avoid needlessly delaying this action” because “the amendments made herein do not

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date September 10, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 2 of 2

Cal. 2012) (“[A]n ‘amended complaint supersedes the original, the latter being treated thereafter as nonexistent.’ * * * ‘[A]n amended pleading is a new round of pleadings . . . [and] is subject to the same challenges as the original (i.e., motion to dismiss, to strike, for more definite statement).’”). The Court further DENIES without prejudice Plaintiffs’ motion for class certification. Given that Defendants seek the dismissal of this action, it is appropriate to resolve any such motion to dismiss before or at the same time that the Court determines whether to certify Plaintiffs’ proposed classes. See Manual for Complex Litigation, Fourth, at § 21.133 (footnote omitted) (“Precertification rulings frequently dispose of all or part of the litigation. . . . [C]ourts should rule early on motions to dismiss, challenging whether the plaintiffs have stated a cause of action. Early resolution of these questions may avoid expense for the parties and burdens for the court and may minimize use of the class action process for cases that are weak on the merits.”). Additionally, because Plaintiffs intend to represent two new proposed classes, the interests of judicial economy and efficiency counsel against ruling on the pending class certification motion. If Defendants intend to move to dismiss the FAC, then the forthcoming motion to dismiss and motion for class certification shall both be noticed for a hearing at the same date and time.

IT IS SO ORDERED.

affect the arguments raised in Defendants’ pending Motion to Dismiss.” FAC at 1 n.1 (citing Martin v. Weed, No. CV 18-00027-TUC-RM, 2018 WL 2431837, at *1 n.1 (D. Ariz. May 30, 2018)). Martin is of no assistance to Plaintiffs. There, a district court construed a motion to dismiss the original complaint as a motion seeking dismissal of the amended pleading because all parties conceded that the defendant’s motion was not moot and it was apparent that the amended pleading did not affect the motion. See Martin, 2018 WL 2431837, at *1 n.1. Defendants to this action have not made such a concession, and the FAC expands the scope of the litigation by adding new parties and a fifth cause of action.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 1 of 28

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS - ORDER RE DEFENDANTS’ MOTION TO DISMISS [101] AND PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [97]

On September 7, 2018, Plaintiffs Lucas R., Daniela Marisol T., Miguel Angel S., Gabriela N., Jaime D., Sirena P., Benjamin F., San Fernando Valley Refugee Children Center, Inc., and Unaccompanied Central American Refugee Empowerment filed a First Amended Class Action Complaint for Declaratory, Injunctive, and Nominal Monetary Relief (“FAC”) against Alex Azar, the Secretary of the U.S. Department of Health and Human Services (“HHS”), and E. Scott Lloyd, the Director of the Office of Refugee Resettlement (“ORR”). [Doc. # 81.] The FAC alleges that ORR pursues certain policies and/or practices relating to the detention of undocumented immigrant or refugee minors that purportedly violate: the consent decree entered in Flores v. Sessions, No. 85-4544-DMG (AGRx) (C.D. Cal.) [Doc. # 101] (“Flores Agreement”), the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), the Due Process Clause of the Fifth Amendment, and the Freedom of Association Clause of the First Amendment. See FAC at ¶¶ 2–3, 4.a–d. The FAC further claims that ORR pursues certain policies and/or practices that discriminate against undocumented minors on the basis of their actual or perceived disabilities, which allegedly violate Section 504 of the Rehabilitation Act. See id. at ¶¶ 4.e–f, 192–94.

On September 28, 2018, Defendants filed a Motion to Dismiss or Transfer (“MTD”) [Doc. # 101] and Plaintiffs filed a Motion for Class Certification. [Doc. # 97.] Both motions have since been fully briefed. [Doc. ## 106, 107, 113, 114.] For the reasons discussed in this Order, the Court GRANTS IN PART and DENIES IN PART Defendants’ MTD and GRANTS Plaintiffs’ Motion for Class Certification.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 2 of 28

I. FACTUAL BACKGROUND1

Plaintiffs Lucas R., Daniela Marisol T., Gabriela N., Miguel Angel S., Jaime D., Sirena P., and Benjamin F. (collectively, “Individual Plaintiffs”)2 are undocumented minors who are or recently were in ORR’s custody.3 See FAC at ¶¶ 10–16. Plaintiff San Fernando Valley Refugee Children Center (“Children Center”) is a non-profit organization that has its principal place of business in North Hills, California. Id. at ¶ 17. The Children Center’s mission is to provide comprehensive social services (e.g., mental health care, shelter, transitional living assistance, and legal aid) to children, youth, and families who entered the country to seek refuge from persecution and endemic violence in El Salvador, Honduras, and Guatemala. Id. Plaintiff Unaccompanied Central American Refugee Empowerment (“UCARE”) is an unincorporated consortium of non-profit agencies that has its principal place of business in Los Angeles, California; most of the non-profit agencies belonging to UCARE are incorporated in California. Id. at ¶ 19. UCARE’s mission is to advocate for and provide legal and social services to immigrant and refugee minors, many of whom are or have been in ORR or Immigration and Customs Enforcement (“ICE”) custody. Id. To the extent that ORR implements any policies or practices that deny or delay the release of minors in the agency’s custody, such conduct denies or delays UCARE’s member organizations’ opportunity to serve those minors. See id. The Children Center’s and UCARE’s ability to raise funds depends in part on the raw number of children and youth to whom they provide services. See id. at ¶¶ 18–19. ORR has placed many minors in communities that the Children Center and UCARE serve (e.g., in federal fiscal year 2018, ORR placed more than 1,100 alien minors in Los Angeles). See id. at ¶ 20.

1 The Court assumes the truth of the FAC’s allegations solely for the purpose of deciding Defendants’ MTD for lack of subject matter jurisdiction and failure to state a claim. See infra Part II.A. With regard to Defendant’s MTD for lack of venue, the Court presumes that the FAC’s averments are true to the extent they are not contradicted by extrinsic evidence. See id. Lastly, the FAC’s averments may be considered in connection with Plaintiff’s Motion for Class Certification to the extent that they are supported by extrinsic evidence or are undisputed. See infra Part III.B.

2 The Court previously granted the Individual Plaintiffs leave to proceed in this matter under pseudonyms. Order re Ex Parte Application for Leave to Proceed Using Pseudonyms [Doc. # 92].

3 The TVPRA provides that HHS is responsible for the custody of all unaccompanied alien children. See 8 U.S.C. § 1232(b)(1). ORR is the division of HHS that has been entrusted with that responsibility. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1178 (N.D. Cal. 2017).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 3 of 28

Plaintiffs allege that ORR has adopted and implemented the following six policies and/or practices in violation the Flores Agreement, the TVPRA, the Due Process Clause, the Freedom of Association Clause, and/or Section 504 of the Rehabilitation Act:

(a) ORR confines children in medium[-]secure facilities, residential treatment centers (“RTCs”), and secure facilities peremptorily, often on bare allegations they are dangerous or pose a flight risk, without affording them a meaningful opportunity to be heard regarding the reasons for such placement;
(b) ORR prolongs children’s detention on the ground that their parents or other available custodians are or may be unfit, while affording neither detained juveniles nor their proposed custodians a meaningful or timely opportunity to be heard regarding a proposed custodian’s fitness;
(c) ORR places children in [RTCs] and detention facilities in which it knows they will be administered powerful psychotropic medications for weeks, months, or years, without procedural safeguards, including seeking informed parental consent or other lawful authorization, even from parents present in the United States[;]
(d) ORR blocks lawyers from representing detained children with respect to placement, non-consensual administration of psychotropic medications, or release to available custodians notwithstanding that Congress has allocated funds specifically to provide such lawyers to represent children who are or have been in ORR custody in “legal matters,” including issues related to release and [placement in the least-restrictive setting];
(e) ORR segregates children who have or are perceived to have a behavioral, mental health, intellectual, and/or developmental disability in secure facilities, medium[-]secure facilities, and RTCs, instead of the most integrated setting appropriate to their needs; and
(f) ORR[] prolong[s] the detention of children who have or are perceived to have a behavioral, mental health, intellectual, and/or developmental disability by placing them in restrictive settings associated with heightened administrative barriers to release.

See id. at ¶¶ 4.a–e.

The FAC asserts five causes of action, which challenge ORR’s policies and/or practices concerning the agency’s: (1) determinations of potential custodians’ fitness; (2) placement of minors in RTCs, secure facilities, and medium-secure facilities; (3) administration of

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 4 of 28

psychotropic drugs to minors; (4) decision to block minors’ access to legal assistance in matters relating to custody, medication, and release; and (5) discrimination against undocumented minors on the basis of their disabilities. See id. at 54–57.

II. LEGAL STANDARDS

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may raise either a facial or a factual challenge to a federal court’s subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When resolving a facial attack, a court “presume[s] the truthfulness of the plaintiff’s allegations” and determines whether they establish that subject matter jurisdiction is proper. See id. Defendants raise a facial attack to the Children Center’s and UCARE’s Article III standing to bring suit. See MTD at 10–14.4

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to challenge a complaint for improper venue. In considering such a motion, “[the] pleadings need not be accepted as true, and facts outside the pleadings may be considered.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). Once venue is challenged, a plaintiff bears the burden of showing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). If the Court determines that venue is improper, it “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); see also King v. Russell, 963 F.2d 1301, 1304–05 (9th Cir. 1992) (holding that the decision to dismiss or transfer for improper venue is committed to the sound discretion of the district court).

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may seek to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a pleading need not contain “detailed factual allegations,” it must contain “more than

4 All page references herein are to page numbers inserted by the CM/ECF system.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 5 of 28

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating the sufficiency of a complaint, courts must accept all factual allegations as true. Id. (citing Twombly, 550 U.S. at 555). Legal conclusions, in contrast, are not entitled to the assumption of truth. Id.

B. Motion for Class Certification

A district court has broad discretion in making a class certification determination under Rule 23. Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001); see also Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979) (district courts “have broad power and discretion vested in them by Fed. Rule Civ. Proc. 23”). Nonetheless, a court must exercise its discretion “within the framework of Rule 23.” Navellier, 262 F.3d at 941.

The following prerequisites must be met before a court may certify a class under Rule 23:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of
the class.

Fed. R. Civ. P. 23(a).

In addition to Rule 23(a)’s prerequisites, a party moving for class certification must also satisfy one of the criteria of Rule 23(b). Rule 23(b)(2) authorizes certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]”

“The party seeking class certification bears the burden of establishing that the proposed class meets the requirements of Rule 23.” Edwards v. First Am. Corp., 798 F.3d 1172, 1177 (9th Cir. 2015). Certification is properly granted only if “after a rigorous analysis[,]” the district court concludes that Rule 23’s requirements have been satisfied. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011). In conducting this analysis, “[m]erits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 6 of 28

Rule 23 prerequisites for class certification are satisfied.” Stockwell v. City & Cty. of S.F., 749 F.3d 1107, 1111 (9th Cir. 2014) (alteration in original) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013)).
III. DISCUSSION
A. Defendants’ MTD
Defendants’ MTD raises the following arguments: (1) the Children Center and UCARE lack Article III standing to bring suit; (2) the Court should dismiss or transfer this action on the basis of improper venue; and (3) the FAC fails to state claims for relief under the Flores Agreement, the TVPRA, the Administrative Procedure Act (“APA”), the Due Process Clause, and Section 504 of the Rehabilitation Act. See MTD at 8, 23–30. The Court addresses each of these arguments in turn.
1. The Children Center’s and UCARE’s Article III Standing
“The three well-known ‘irreducible constitutional minim[a] of standing’ are injury-infact, causation, and redressability.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “A plaintiff bears the burden of demonstrating that her injury-in-fact is ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Id. (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).
Defendants argue that the Children Center’s and UCARE’s alleged injuries are speculative. Specifically, they contend that the FAC “assumes that some child in ORR custody may eventually use their services for which they may receive funds or for which they may have to provide extra treatment,” and that these two organizational Plaintiffs “suffer no injury from the alleged delay” in the release of alien minors because the children “would eventually be served by the organization[s].” See MTD at 12. Consequently, Defendants contend that Plaintiffs have failed to establish that ORR’s policies and/or practices have negatively impacted the funding of these two organizations, which depends in part on the number of minors they serve.5 See id. at 12–14.

5 Defendants also suggest that the FAC fails to supply sufficient detail regarding “how these organizations raise their funds.” See Reply re MTD at 8. The Court rejects this argument because it is entirely plausible that the Children Center’s and UCARE’s donors would be inclined to provide additional funding if these organizations were

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 7 of 28

The FAC alleges that “ORR has placed many unaccompanied children in the communities that the Children Center and UCARE serve” and “ORR placed more than 1,100 unaccompanied children in Los Angeles alone” in fiscal year 2018. See FAC at ¶ 20. Further, the FAC alleges that UCARE serves “immigrant and refugee minors . . . [who] are or have been in ORR” custody, and that ORR denies or delays their release. See id. at ¶ 19. These allegations plausibly demonstrate that ORR’s conduct interferes with UCARE’s ability to serve undocumented minors who are or have been in the agency’s custody. See Davidson, 889 F.3d at 969–70 (holding that plausible allegations of future harm are sufficient to establish standing at the pleading stage). Further, Defendants’ argument entirely neglects one crucial fact—i.e., delays in obtaining funding have concrete financial consequences for UCARE. See, e.g., Appalachian Reg’l Healthcare v. Coventry Health & Life Ins. Co., 970 F. Supp. 2d 687, 696 (E.D. Ky. 2013) (concluding that a delay in payment gives rise to an injury-in-fact). It follows that UCARE has pled an injury-in-fact that is fairly traceable to ORR’s policies and/or practices that deny or delay the release of alien minors, and redressable by an order enjoining such conduct.

Additionally, the FAC avers that to accomplish its mission to provide comprehensive social services to refugee minors from Central America, the Children Center has been forced to divert its limited resources to remedying the mental and physical trauma these minors have suffered as a result of their prolonged detention and forced consumption of psychotropic medication while in ORR’s custody. See FAC at ¶¶ 17–18. Plaintiffs claim that this diversion of resources has reduced the number of undocumented minors and youth the Children Center is able to assist, thereby inhibiting its ability to raise funds. See id. at ¶ 18. These assertions give rise to the plausible inference that ORR’s policies and/or practices have caused the Children Center to suffer an injury-in-fact that would be mitigated if the agency ceased its allegedly unlawful conduct. See La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (“An organization suing on its own behalf can establish an injury when it suffered ‘both a diversion of resources and a frustration of its mission.’”) (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002))).

In sum, the Court concludes that the Children Center and UCARE have sufficiently pled Article III standing.

able to serve more alien minors. See FAC at ¶¶ 18–19; Public Lands for the People, Inc. v. U.S. Dep’t of Agric., 697 F.3d 1192, 1196 (9th Cir. 2012) (if there is a facial challenge to standing, a court must “accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party” (quoting Bernhardt v. Cty. of L.A., 279 F.3d 862, 867 (9th Cir. 2002)).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 8 of 28

2. Venue
Defendants argue that Plaintiffs have filed suit in an improper venue. Under 28 U.S.C. section 1391(e)(1), a civil action against an officer of a federal agency may be brought in any judicial district in which “(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action.” For the purposes of this general venue statute, “an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, . . . if a plaintiff, only in the judicial district in which it maintains its principal place of business.” See 28 U.S.C. § 1391(c)(2).
It is undisputed that the Children Center is a California corporation that has its principal place of business in this district (i.e., in North Hills, California), FAC at ¶ 17, and that UCARE is an unincorporated entity that has its principal place of business in this district as well (i.e., in Los Angeles, California, id. at ¶ 19.6 Because several (but not all) Plaintiffs reside in this district, venue is proper under 28 U.S.C. section 1391(e)(1)(C). See Immigrant Assistance Project of L.A. Cty. v. Immigration & Naturalization Serv., 306 F.3d 842, 868 (9th Cir. 2002) (“A civil action . . . in which a defendant is an agency of the United States and in which no real property is involved, may be brought, inter alia, in any judicial district in which a plaintiff resides.” (emphasis added)); Railway Labor Executives Ass’n v. Interstate Commerce Comm’n, 958 F.2d 252, 256 (9th Cir. 1991) (holding that “venue need be proper for only one plaintiff” under Section 1391(e)).
Defendants nonetheless insist that venue is improper because the Children Center and UCARE are not members of the putative classes (i.e., children in ORR custody).7 See MTD at 10, 17, 20 n.3. Yet, the Court has already concluded that these two Plaintiffs have Article III standing to raise their claims. See supra Part III.A.1. Furthermore, the Children Center and UCARE are properly joined in this action because all named Plaintiffs challenge the same policies and practices. See FAC at ¶¶ 4–5, 17–20; see also Immigrant Assistance Project, 306

6 The parties do not dispute that the Children Center and UCARE have the capacity to bring suit under applicable law.

7 Plaintiffs argue that the Children Center and UCARE may serve as class representatives because “the children and the youth they serve are the functional equivalent of their members.” See Reply re Mot. for Class Cert. at 18–19. This assertion is puzzling, given that the Children Center is a non-profit corporation that presumably does not have any “members,” and UCARE’s members are non-profit agencies. See FAC at ¶¶ 17–19. The Court need not resolve this issue because it concludes that the Individual Plaintiffs can serve as class representatives. See infra Part III.B.3–4.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 9 of 28

F.3d 842, 867–68 & n.20 (venue is proper under Section 1391(e) if either a putative class representative or an organization resided in the district); Fed. R. Civ. P. 20(a)(1) (“Persons may join in one action as plaintiffs if: . . . they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and . . . any question of law or fact common to all plaintiffs will arise in the action.”). Therefore, the Court shall not dismiss this action for improper venue.8

3. Claims Under the Flores Agreement

Defendants argue that the Court should dismiss as duplicative any claims alleging violations of the Flores Agreement. See MTD at 24–25. Plaintiffs counter that they are not required to litigate their Flores claims in that action because Paragraph 37 of the Agreement purportedly permits them to file an independent “individual or class action” in this District Court. See Opp’n re MTD at 27–28. Plaintiffs fail to recognize that the interests of judicial economy counsel against permitting them to enforce the Flores Agreement in this action.

“Plaintiffs generally have ‘no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled in part on another ground by Taylor v Sturgell, 553 U.S. 880, 884–85, 904 (2008). This prohibition on duplicative actions also extends to plaintiffs who are in privity with parties to the first suit. See id. at 689. Generally, “[d]ismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the ‘comprehensive disposition of litigation.’” See id. at 693 (quoting Kerotest Mfg. Co. v. C-O-Two Fore Equip. Co., 342 U.S. 180, 183 (1952)). Whether the dismissal is with or without prejudice is committed to the district court’s sound discretion. Id. at 692.

8 The Court need not address Defendants’ motion to transfer this action because it is predicated on their claim that this district is an improper venue. See MTD at 20–23. To the extent Defendants contend that the action ought to be transferred to the District of Columbia pursuant to 28 U.S.C. section 1404(a), that argument fails because they do not provide any evidentiary support for the only factor they claim weighs in favor of transfer—i.e., the convenience of the witnesses and location of books and records. See MTD at 22; see also E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994) (holding that the proponent of the transfer “bears a heavy burden of showing a clear balance of inconveniences to it[,]” and that “[a]ffidavits or declarations are required to identify key witnesses and [provide] a generalized statement of their anticipated testimony”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 10 of 28

It is undisputed that the Individual Plaintiffs are members of the Flores Class, and that ORR is a party to that action.9 See FAC at ¶¶ 2–3, 21–22; Taylor, 553 U.S. at 894 (“Representative suits with preclusive effect on nonparties include properly conducted class actions . . . .”). There is also no dispute that the subject matter of Plaintiffs’ Flores claims and the Flores Action are the same. In their original Complaint, Plaintiffs admitted that the instant action is an “adjunct and supplement” to a motion to enforce that was filed in the Flores Action. See Compl. at ¶ 2 [Doc. # 1]. In resolving that motion, the Court found that ORR breached the Flores Agreement by: (1) detaining certain Class Members in Shiloh RTC in violation of Paragraphs 6, 7, 8, and 19 and Exhibit 1 of the Agreement, (2) failing to timely provide a written notice of reasons for placing a Class Member in a secure facility, staff-secure facility, or RTC in violation of Paragraph 24C of the Agreement, (3) placing certain Class Members in secure facilities in violation of Paragraph 21 of the Agreement, (4) administering psychotropic medication to Class Members at Shiloh RTC in violation of Paragraphs 6 and 9 and Exhibit 1 of the Agreement, and (5) undertaking certain policies that unnecessarily delay the release of Class Members to custodians in violation of Paragraphs 14 and 18 of the Agreement. See Order re Pls.’ Mot. to Enforce at 30–32, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 30, 2018) [Doc. # 470]. Further, the parties in Flores continue to actively litigate whether ORR, ICE, and U.S. Customs and Border Patrol have complied with the Agreement, notwithstanding the fact that the Court issued the consent decree more than 20 years ago. See, e.g., Order Appointing Special Master/Independent Monitor, Flores v. Sessions, No. CV 854544-DMG (AGRx) (C.D. Cal. Oct. 5, 2018) [Doc. # 494].

Because Plaintiffs’ claims under the Flores Agreement should be litigated only in that action, the Court DISMISSES without prejudice Plaintiffs’ first, second, third, and fourth causes of action to the extent that they seek enforcement of that Agreement. Nonetheless, Plaintiffs may pursue due process claims predicated on Defendants’ failure to provide sufficient procedural

9 Although the Children Center and UCARE are not parties to the Flores Action, they are subject to the same defenses as the Individual Plaintiffs because the Children Center and UCARE seek to assert the contractual rights of Flores Class Members. See Ronay Family Ltd. P’ship v. Tweed, 216 Cal. App. 4th 830, 840 (2013) (“[A] third party whose rights under a contract derive from those of a party to the contract [typically] cannot assert rights greater than those of the contracting party . . . .”); O’Neil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004) (“[T]he construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally.” (internal quotation marks omitted) (quoting United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992))). In addition, while Defendant E. Scott Lloyd has not been sued in his individual capacity in the Flores Action, the only claim Plaintiffs bring against him in his personal capacity is one under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), see FAC at ¶ 5, which authorizes damages claims for only constitutional violations (i.e., not breaches of consent decrees), see F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir. 1989) (holding that Bivens claims are available “[f]or certain constitutional violations”). The claim against Lloyd is therefore not subsumed within the Flores Action.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 11 of 28

safeguards for alien minors to exercise their Flores rights because Plaintiffs cannot bring those claims in the Flores Action.10 See Opp’n re MTD at 32–33 (alleging that the Flores Agreement’s protections are substantive rights protected by the Due Process Clause); Order re Pls.’ Mot. to Enforce at 5, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 30, 2018) (concluding that such claims have “no place in a motion to enforce the consent decree”) [Doc. # 470]; Adams, 487 F.3d at 689 (noting that the duplicative claim analysis determines “whether the second suit raises issues that should have been brought in the first” (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000))).

4. Plaintiffs’ TVPRA and APA Claims

Defendants argue that Plaintiffs’ claims under the TVPRA fail because they have not shown that the statute creates a private right of action. See MTD at 25. Relatedly, Defendants contend that Plaintiffs may not obtain a remedy under the APA because the FAC does not sufficiently allege the existence of a relevant “final agency action.”11 See id. at 28–29; Reply re MTD at 17; see also 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”). For the reasons discussed in this section, the Court concludes that the policies and/or

10 Defendants apparently request the dismissal of all of Plaintiffs’ claims on the ground that they are duplicative of those pending in the Flores Action. See Opp’n re Mot. for Class Cert. at 11 (asserting that the instant action is a “successive, identical class action” that includes “class members and claims identical in scope to an earlier certified class action” (emphasis added)). Yet, the Court specifically declared that the only claims that may be brought in the Flores Action are those arising under the Agreement. See Order re Pls.’ Mot. to Enforce at 2–3, 5– 6, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 30, 2018) [Doc. # 470]. To the extent that Defendants intended to assert a res judicata defense, the Court rejects that argument because they failed to cogently raise or brief that point. See Fed. R. Civ. P. 7(b)(1)(B) (“A request for a court order must be made by motion. The motion must: . . . state with particularity the grounds for seeking the order.”).
11 Although Plaintiffs’ first four causes of action assert that Defendants’ policies violate the APA, the FAC does not clarify whether Plaintiffs intend to raise any standalone APA claims that are not predicated on violations of other federal statutes, the federal constitution, or the Flores Agreement. See FAC at ¶¶ 181, 184, 187, 190; see also Opp’n re MTD 30–31 (asserting in passing that “ORR’s challenged policies and practices are final and directly violate the APA[,]” but failing to articulate a standalone APA claim). Accordingly, the Court will limit its inquiry to whether the FAC satisfies the procedural prerequisites to suit under the APA. See also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 131 (2014) (noting that the APA has an “omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 12 of 28

practices identified in the FAC constitute final agency actions such that Plaintiffs may raise their TVPRA claims under the APA.12
“Agency action is ‘final’ if at least two conditions are satisfied: ‘First, the action must mark the “consummation” of the agency’s decisionmaking process[;] . . . it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”’” Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1196 (9th Cir. 1997) (quoting Bennet v. Spear, 520 U.S. 154, 178 (1997)).
The FAC identifies several ORR policies and/or practices, which concern (inter alia) the placement of undocumented minors; their release to proposed custodians; the forced consumption of psychotropic medication; and blocking lawyers from representing minors in connection with ORR’s decisions regarding release, placement, and non-consensual administration of psychotropic medications. See FAC at ¶¶ 4.a–d. The FAC includes specific factual allegations demonstrating that these policies and/or practices are not tentative or interlocutory in nature, as ORR has already implemented them.13 See, e.g., id. at ¶¶ 37–46 (alleging that ORR placed Daniela Marisol T. in Shiloh RTC without notice or an opportunity to be heard, refused to release her to a custodian or provide any administrative means to challenge that decision, and required her to take psychotropic medications without court or family member

12 The FAC avers that “Plaintiffs have private rights of action against Defendants pursuant to . . . the Administrative Procedure Act,” but it does not allege a cause of action under the TVPRA itself. See FAC at ¶ 9. Yet, Plaintiffs’ Opposition to the MTD apparently argues that an implied private right of action exists under the TVPRA. See Opp’n re MTD at 29. Although Plaintiffs argue (inter alia) that “[n]othing in the enactment’s text or legislative history suggests” that an implied private right of action would frustrate the underlying purpose of the TVPRA, they fail to cite any legislative materials in support of that proposition. See id. Notwithstanding Plaintiffs’ failure to adequately show that the TVPRA creates a private right of action, the Court finds that, for the reasons discussed in this section, the APA still permits them to seek relief for violations of the TVPRA. See 5 U.S.C. § 706(2)(A) (providing that a court shall set aside agency action found to be “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law”). Additionally, for the reasons discussed in this section, Plaintiffs may assert their constitutional claims under the APA as well. See 5 U.S.C. § 706(2)(B) (providing that a court shall set aside agency action found to be “contrary to constitutional right, power, privilege, or immunity”); Navajo Nation v. Dep’t of Interior, 876 F.3d 1144, 1168–72 (9th Cir. 2017) (holding that 5 U.S.C. section 704’s “final agency action” requirement applies to causes of action brought under the APA, whereas it is not a condition of 5 U.S.C. section 702’s waiver of sovereign immunity).
13 The Court is not persuaded by Defendants’ contention that these allegations are not sufficiently detailed to survive a motion to dismiss. See Reply re MTD at 17; Iqbal, 556 U.S. at 678 (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” (quoting Twombly, 550 U.S. at 555)).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 13 of 28

authorization); id. at ¶¶ 145–52 (averring that “ORR routinely bars [Vera Institute of Justice]funded legal services providers from representing children in legal proceedings involving ORR’s custody, release, placement, and medication decisions”). Moreover, the FAC avers that these policies and/or practices violate Individual Plaintiffs’ and putative class members’ rights under the TVPRA, the Due Process Clause, and the Freedom of Association Clause of the First Amendment. See id. at ¶¶ 2–3. Aside from their unpersuasive arguments that Plaintiffs did not adequately plead their procedural due process claims, see infra Part III.A.5, Defendants fail to even argue that such legal consequences do not flow from ORR’s conduct. See Fed. R. Civ. P. 7(b)(1)(B). The Court thus rejects Defendants’ contention that no private right of action exists by which Plaintiffs may obtain relief for ORR’s violations of the TVPRA. Cf. L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 612 (S.D.N.Y. 2018) (holding that ORR’s policy of requiring director-level review before certain alien minors are released from custody was final agency action for the purposes of the APA because ORR had already adopted the policy and legal consequences flowed from it).

5. Plaintiffs’ Procedural Due Process Theories

Defendants contend that Plaintiffs’ procedural due process claims should be dismissed because: (1) the FAC supposedly fails to identify any underlying substantive rights protected by the Due Process Clause, and (2) undocumented minors are not entitled to any procedural protections beyond those explicitly provided by Congress.14 See MTD at 25–28. These contentions are entirely without merit.

“[P]rocedural due process . . . has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A constitutionally protected substantive interest may arise from the federal constitution itself, see Zadvydas v. Davis, 533 U.S. 678, 690 (2001), a statute, see Carver v. Lehman, 558 F.3d 869, 874–75 (9th Cir. 2009), or a contract, see San Bernardino Physicians’ Servs. Med. Grp. v. Cty. of San Bernardino, 825 F.2d 1404, 1407–08 (9th Cir. 1987); see also Smith v. Sumner, 994 F.2d 1401, 1406 (9th Cir. 1993) (a consent decree can give rise to a constitutionally protected interest). A statute may create a substantive interest protected by the Due Process Clause by using

14 Although Defendants’ MTD discusses certain legal principles relating to the substantive component of the Due Process Clause, it appears that Defendants challenge only Plaintiffs’ procedural due process claims. See MTD at 25–26 (“The failure to plead a substantive right is fatal to the various procedural due process claims.”); Reply re MTD at 18 (“Plaintiffs do not cite any legal authority to support their conclusory arguments that children in ORR custody are entitled to constitutional procedural protections concerning their placement in licensed facilities and the prescription of psychotropic drugs.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 14 of 28

“mandatory language” that imposes an obligation on government officials. See Carver, 558 F.3d at 872–73. Further, whether a contractual right is protected by the Due Process Clause depends upon “the security with which [the interest] is held under [the applicable] law and its importance to the holder.” See San Bernardino Physicians’ Servs., 825 F.3d at 1409 (alteration in original) (quoting Brown v. Brienen, 722 F.2d 360, 364 (7th Cir. 1983)). A contractual provision may be of sufficient importance if it can be “easily characterized as a civil right.” See id.

Here, the FAC alleges that ORR’s policies and/or practices violate detained minors’ constitutional rights to freedom from detention, familial association, and bodily integrity. See FAC at ¶¶ 106–08, 116, 122–23, 137, 142; see also Zadvydas, 533 U.S. at 690 (“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause protects.”); Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“The substantive due process right to family integrity or to familial association is well established.”); cf. United States v. Loughner, 672 F.3d 731, 744 (9th Cir. 2012) (“[I]nmates possess ‘a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause . . . .’” (quoting Washington v. Harper, 494 U.S. 210, 221–22 (1980))).

Plaintiffs further allege that ORR’s refusal to promptly release undocumented minors; its placement of children in secure facilities, medium-secure facilities, and RTCs; its decision to involuntarily medicate minors; and its interference with minors’ access to counsel violate the agency’s obligations under the TVPRA. See FAC at ¶¶ 104, 108, 118–121, 133, 140–42, 146– 52. The provisions of the TVPRA upon which Plaintiffs rely use mandatory language to prescribe the agency’s duties. See 8 U.S.C. § 1232(c)(2)(A) (“[A]n unaccompanied alien child in the custody of [ORR] shall be promptly placed in the least restrictive setting that is in the best interest of the child. . . . A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or otherwise has been charged with having committed a criminal offense.” (emphasis added)); id. § 1232(c)(5) (“[ORR] . . . shall ensure . . . that all unaccompanied alien children [from non-contiguous countries] have counsel to represent them in legal proceedings or matters and to protect them from mistreatment, exploitation, and trafficking.” (emphasis added)).

Furthermore, the FAC relies upon provisions of the Flores Agreement that require the prompt release of alien minors to proposed custodians, the placement of children in non-secure licensed facilities, and adherence to all applicable state child welfare laws and regulations. See FAC at ¶¶ 103, 117, 132, 134; Flores Agreement at ¶¶ 6, 14, 18–19, Ex. 1 at ¶ A. These protections are secured by a consent decree and constitute civil rights because they are akin to the constitutional and statutory rights discussed above. See Smith, 994 F.2d at 1406 (“‘[I]t would

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

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be passing strange if a consent decree, which possesses all the attributes of an ordinary contract plus the additional element of judicial approbation, were to be accorded some inferior status.” (quoting Rodi v. Ventetuolo, 941 F.2d 22, 28 (1st Cir. 1991))). Therefore, the Court concludes that Plaintiffs have satisfactorily identified the substantive rights underlying their procedural due process claims.

Defendants’ second argument is inapt because it relies upon cases involving procedures for the admission or exclusion of aliens. See Shaughnessy v. United states ex re. Mezei, 345 U.S. 206, 212 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’” (citations omitted) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950))); Angov v. Lynch, 788 F.3d 893, 898 (9th Cir. 2015) (“[The alien] has no . . . right [to procedural due process]. He presented himself at the San Ysidro port of entry without valid entry documents and sought asylum. . . . [T]hose, like [the alien], who have never technically ‘entered’ the United States have no such rights.” (emphasis added)); United States v. Barajas-Alvarado, 655 F.3d 1077, 1084 (9th Cir. 2011) (“We have . . . held that non-admitted aliens are not entitled to any procedure vis-á-vis their admission or exclusion.” (emphasis added)). Because these decisions relate to the admission or exclusion of aliens, they do not establish that the children in ORR’s custody have no entitlement to additional procedures that limit the agency’s authority to detain them, place them in certain restrictive settings, administer psychotropic medication to them against their will, or block their access to counsel. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 990 n.17 (9th Cir. 2017) (“Although the Supreme Court has described Congress’s power over the ‘policies and rules for exclusion of aliens’ as ‘plenary,’ . . . it is well-established that the Due Process Clause stands as a significant constraint on the manner in which the political branches may exercise their plenary authority.” (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972))). In sum, the Court rejects Defendants’ challenges to Plaintiffs’ procedural due process claims.15

15 Defendants argue for the first time in their reply brief that Plaintiffs fail to adequately “describe what procedures they think the Constitution actually requires.” See Reply re MTD at 18. The Court will not consider this argument because Defendants failed to timely raise it. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 16 of 28

6. Claims Under Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act provides in pertinent part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” See 29 U.S.C. § 794(a). Defendants contend that Plaintiffs’ Section 504 claims should be dismissed because the FAC does not “identify facts that suggest ORR was motivated to take the actions challenged here ‘solely by reason’ of [their] alleged disabilities.” See MTD at 29–30. Once again, Defendants’ assertion is flatly contradicted by the FAC’s allegations.

The FAC avers that ORR placed all but one of the Individual Plaintiffs (i.e., Jamie D.) in Shiloh RTC “due to” their mental health needs. See FAC at ¶¶ 31, 41, 48, 64, 81, 90. In fact, Defendants admit that the agency transfers alien minors to RTCs “in order to treat intensive psychiatric and psychological needs.” See Reply re MTD at 19. Benjamin F.’s experience illustrates the effects of this alleged policy and/or practice. The FAC claims that ORR initially placed Benjamin F. and his brother, Mateo, in the same shelter facility. See FAC at ¶¶ 86, 88. ORR later placed Benjamin F. in Shiloh RTC because of his autism and developmental disabilities. See id. at ¶¶ 87, 90. Shortly after the transfer, Mateo was released from the agency’s custody, but Benjamin remained at Shiloh RTC, presumably because medical personnel had not yet “declare[d] him psychologically sound . . . .” See id. at 91, 93–94. These asseverations plausibly state a claim that ORR has taken action against alien minors “solely by reason of” their disabilities.16

B. Plaintiffs’ Motion for Class Certification

Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), Plaintiffs move to certify five proposed classes that are comprised of all minors in ORR custody pursuant to 6 U.S.C. section 279 and/or 8 U.S.C. section 1232:

16 Defendants also suggest that “merely placing a minor in [an RTC] for children with intensive mental health needs [does not] violate[] the Rehabilitation Act . . . .” See Reply re MTD at 18. Yet, the FAC alleges that children placed in RTCs are denied benefits offered to other undocumented minors in ORR custody. See, e.g., FAC at ¶ 130 (“[C]hildren placed in RTCs suffer the functional equivalent of indefinite civil commitment without due process of law.”). Accordingly, Plaintiffs have adequately pled a violation of the Rehabilitation Act, notwithstanding the fact that Defendants apparently disagree with their factual assertions. See Iqbal, 556 U.S. at 679 (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 17 of 28

1. who are or will be placed in a secure facility, medium-secure facility, or RTC, or [whom ORR has continued to detain] in any such facility for more than thirty days, without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker regarding the grounds for such placement [(i.e., the “step-up class”)];
2. whom ORR is refusing or will refuse to release to parents or other available custodians within thirty days of the proposed custodian’s submitting a complete family reunification packet on the ground that the proposed custodian is or may be unfit [(i.e., the “unfit custodian class”)];
3. who are or will be prescribed or administered one or more psychotropic medications without procedural safeguards, including but not limited to obtaining informed consent or court authorization prior to medicating a child, involving a neutral decisionmaker in the initial determination of whether to prescribe psychotropics to a child in ORR custody, and involving a neutral [decisionmaker] to conduct periodic reviews of those medications as treatment continues [(i.e., the “drug administration class”)];
4. who are natives of non-contiguous countries and to whom ORR is impeding or will impede legal assistance in legal matters or proceedings involving their custody, placement, release, and/or administration of psychotropic drugs [(i.e., the “legal representation class”)]; and
5. who have or will have a behavioral, mental health, intellectual, and/or developmental disability as defined in 29 U.S.C. [section] 705, and who are or will be placed in a secure facility, medium-secure facility, or [RTC] because of such disabilities [(i.e., the “disability class”)].

See Notice of Mot. for Class Cert. at 3–4 [Doc. # 97].

Plaintiffs’ Motion for Class Certification proceeds on the assumption that ORR has in fact adopted and uniformly implemented the policies and/or practices targeted by the proposed classes (e.g., as a matter of policy or practice, ORR places alien minors in secure facilities, medium-secure facilities, and RTCs without affording them notice and an opportunity to be heard before a neutral and detached decisionmaker). See Mot. for Class Cert. at 11–12. Furthermore, the Individual Plaintiffs offer evidence indicating that they have been subjected to such policies and/or practices. See infra Part III.B.2–3. Defendants do not explicitly dispute that these policies and/or practices exist or attempt to controvert evidence suggesting that ORR has implemented them.17 See Opp’n re Mot. for Class Cert. at 5–29. Accordingly, for the purposes

17 Defendants claim that “[n]either the First Amended Complaint nor the Motion to Certify Class identifies a single class member whom ORR has blocked from receiving legal services . . . .” See Opp’n re Mot. for Class

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 18 of 28

of Plaintiffs’ Motion for Class Certification, the Court assumes the existence of the policies and/or practices giving rise to the claims underlying the proposed classes. See Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue.”). With that assumption in mind, the Court will determine whether Plaintiffs have satisfied the prerequisites of Federal Rule of Civil Procedure 23.

1. Rule 23(a)(1): Numerosity

A putative class may be certified only if it “is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The numerosity requirement imposes no absolute limitations; rather, it “requires examination of the specific facts of each case.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 330 (1980). “The Ninth Circuit has not offered a precise numerical standard; other District Courts have, however, enacted presumptions that the numerosity requirement is satisfied by a showing of 25–30 members.” Slaven v. BP Am., Inc., 190 F.R.D. 649, 654 (C.D. Cal. 2000). “In analyzing numerosity ‘a court may make commonsense assumptions and reasonable inferences.’” West v. Cal. Servs. Bureau, 323 F.R.D. 295, 303 (N.D. Cal. 2017) (quoting The Civil Rights Educ. & Enforcement Ctr. v. RLJ Lodging Trust, No. CV 15-0224-YGR, 2016 WL 314400, at *6 (N.D. Cal. 2016)).

ORR’s data shows that in fiscal year 2017, the agency admitted 873 minors to RTCs, secure facilities, or staff-secure facilities.18 See Mot. for Class Cert., Ex. 3 at ¶ 10 (Revised

Cert. at 28. For the reasons discussed infra Part III.B.2–3, the Court concludes that Plaintiffs have advanced sufficient evidence that ORR routinely blocks detained minors from obtaining legal services to challenge the agency’s decisions regarding placement, release, and/or administration of psychotropic medication.

Defendants further claim that Section 1.4.7 of the ORR Guide permits a minor to ask the ORR Director or his designee to reconsider the minor’s transfer to a secure facility or RTC within 30 days after placement, and they note that the TVPRA requires the agency to conduct monthly reviews of the placement of a minor in a secure facility. See Opp’n re Mot. for Class Cert. at 20–21 (citing ORR Guide § 1.4.7; 8 U.S.C. § 1232(c)(2)(A)). Nonetheless, Section 1.4.7 is no longer available in the online version of the ORR Guide, and Defendants have not offered a declaration showing that the provision still exists. ORR Guide, Placement in ORR Care Provider Facilities, https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-1#1.4.7 (last visited Oct. 23, 2018). More importantly, Defendants do not offer evidence that ORR affords minors placed in such facilities with notice of the reasons for the transfer, nor do they contend that the aforementioned procedures call for review by a neutral and detached decisionmaker. See Opp’n re Mot. for Class Cert. at 20–21.

18 ORR previously admitted that staff-secure facilities are “medium-security facilities” under the Flores Agreement. Order re Pls.’ Mot. to Enforce at 9, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 19 of 28

Sualog Decl.) [Doc. # 97-6]. Since the Court assumes for the purposes of Plaintiffs’ Motion that ORR consistently fails to provide notice and an opportunity to be heard before a neutral and detached decisionmaker in connection with such transfers, the Court concludes that the size of the step-up class is large enough to render joinder impracticable.
Next, Plaintiffs argue that ORR “routinely” delays or denies the release of minors to their proposed custodians on the grounds that they are unsuitable, see Mot. for Class Cert. at 25, an uncontested assertion that is consistent with the evidence discussed infra Part III.B.3. Given that 50,834 minors were admitted into ORR custody in fiscal year 2017 alone, common sense dictates that a sizeable number of minors sought or will seek release to proposed custodians and were or will be subjected to ORR’s purportedly inadequate procedures for contesting the agency’s suitability determinations.
Further, ORR’s data shows that 74 minors were admitted to RTCs in fiscal year 2017. See Mot. for Class Cert., Ex. 3 at ¶ 10 (Revised Sualog Decl.) [Doc. # 97-6]. Because ORR’s statistical reports show that it “administers psychotropic medications to . . . nearly every child . . . it places” in its RTCs, the drug administration class is sufficiently numerous to satisfy Rule 23(a)(1). See Mot. for Class Cert., Ex. 22 at ¶¶ 2–3 (Holguín Decl.) [Doc. # 97-27]; see also Mot. for Class Cert., Ex. 12 at ¶ 12 (Miguel Angel S. Suppl. Decl.) (ORR has confined Miguel Angel S. to Yolo Juvenile Detention Center, where he has been instructed to take medication for depression and anxiety) [Doc. # 105-1]. Defendants admit that alien minors are placed in RTCs if ORR determines that they “require intensive mental health services which cannot be provided on an outpatient basis,” see Opp’n re Mot. for Class Cert. at 20, a concession that signifies that joinder of the members of the disability class would also be impracticable.
Lastly, Plaintiffs accurately note that the legal representation class is comprised of the step-up, unfit custodian, and drug administration classes because ORR has allegedly, as a matter of common practice, discouraged legal services providers from assisting undocumented minors in challenging those decisions. See Mot. for Class Cert. at 26. Thus, it stands to reason that the legal representation class comports with Rule 23(a)(1) as well.
2. Rule 23(a)(2): Commonality
The commonality requirement is satisfied if “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that

30, 2018) [Doc. # 470]. Plaintiffs likewise treat staff-secure facilities as “medium-secure facilities” for the purposes of the definition of the step-up class. See Mot. for Class Cert at 24 (citing Mot. for Class Cert., Ex. 3 at ¶ 10 (Revised Sualog Decl.) [Doc. # 97-6]).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 20 of 28

the class members ‘have suffered the same injury.’” Dukes, 564 U.S. at 349–50 (quoting Gen. Tele. of S.W. v. Falcon, 457 U.S. 147, 157(1982)). In determining that a common question of law exists, it is insufficient to find that all putative class members have suffered a violation of the same provision of law. See id. at 350. Rather, the putative class members’ claims “must depend upon a common contention” that is “of such a nature that it is capable of classwide resolution— which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” See id.
As noted above, Defendants do not dispute that ORR has instituted a policy and/or practice of transferring minors to secure facilities, medium-secure facilities, and RTCs without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker. They also do not contest that ORR consistently fails to provide parents and other proposed custodians with any formal means by which to challenge the agency’s suitability determinations, or that ORR routinely administers psychotropic drugs to minors without first obtaining informed consent or court authorization. They likewise do not challenge Plaintiffs’ assertion that ORR had adopted a policy and/or practice of placing children with actual or perceived behavioral, mental health, intellectual, and/or developmental disabilities in secure facilities, medium-secure facilities, and RTCs. It follows that whether such policies and/or practices violate the Due Process Clause, the Freedom of Association Clause, the TVPRA, and/or the Rehabilitation Act are common questions for all putative members of the step-up class, the unfit custodian class, the drug administration class, and the disability class.19
Defendants nonetheless insist that the step-up, unfit custodian, drug administration, and disability classes do not present common questions because “there is wide variation in the evidence that ORR may rely on in informing its placement, release, and treatment decisions.” See Opp’n re Mot. for Class Cert. at 19. Defendants misapprehend the nature of Plaintiffs’ claims. Plaintiffs seek an injunction barring Defendants from engaging in the aforementioned policies and/or practices in the absence of certain procedural safeguards. See, e.g., FAC at 57– 58. Plaintiffs do not request an order requiring Defendants to transfer particular putative class members to less restrictive settings, release them to proposed custodians, cease medicating them,

19 Defendants point out that Plaintiffs’ Flores claims relating to the administration of psychotropic drugs are governed by the child welfare laws of each state in which a particular putative class member is detained. See Opp’n re Mot. for Class Cert. at 24–25; Order re Pls.’ Mot. to Enforce at 20–24, Flores v. Sessions, No. CV 854544-DMG (AGRx) (C.D. Cal. July 30, 2018) [Doc. # 470]. The parties have not addressed whether the differences in the various applicable state child welfare laws would affect the extent to which Plaintiffs’ due process claims raise common questions. Should that issue arise, the Court may alter or amend its class certification order to further divide the drug administration class into appropriate subclasses. See Fed. R. Civ. P. 23(c)(1)(C). Until then, the Court will not address the issue sua sponte or presume that potential differences in state child welfare laws prevent Plaintiffs’ federal due process claims from presenting common questions of law and fact.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 21 of 28

or stop detaining them in unduly restrictive settings that are allegedly ill-suited for their needs. That the policies and/or procedures concern the agency’s individualized decisions does not change the fact that their legality is a common issue for all proposed class members. Cf. Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“The putative class and subclass members . . . all set forth numerous common contentions whose truth or falsity can be determined in one stroke: whether the specified statewide policies and practices to which they are all subjected by [prison officials] expose them to a substantial risk of harm. . . . That inquiry does not require us to determine the effect of those policies and practices upon any individual class member (or class members) or to undertake any other kind of individualized determination.”).

Plaintiffs also offer evidence indicating that ORR has instructed legal aid programs not to represent minors in connection with ORR’s placement, medication, and release decisions. Specifically, Plaintiffs point to evidence that HHS has contracted with the Vera Institute of Justice for the purposes of providing legal services to undocumented minors. See Mot. for Class Cert, Ex. 5 (HHS’s contracts with Vera) [Doc. ## 97-8, 97-9]. They also offer declarations from attorneys who worked for Vera-funded legal aid programs, wherein they claim that ORR instructed those programs not to challenge ORR’s confinement of alien minors or the conditions thereof. See Mot. for Class Cert., Ex. 6 at ¶¶ 4, 8–9 (Mixon Decl.) (attesting that ORR instructed Mixon not to challenge the agency’s release and placement decisions) [Doc. # 97-10]; Mot. for Class Cert., Ex. 7 at ¶¶ 11, 19 (Williams Decl.) (“[B]oth ORR and Vera Institute informally discourage Vera-funded lawyers from taking legal action against ORR lest they cut off funds entirely for assisting unaccompanied minors. * * * [A]lthough ORR boasts of providing free legal services to detained minors, it hobbles free legal service providers who undertake to represent detained children.”) [Doc. # 97-11]; Mot. for Class Cert., Ex. 8 at ¶¶ 14–24 (Stuart Decl.) (attesting that Vera-funded providers rarely challenge ORR’s detention decisions, and that ORR has instructed such providers not to refer cases to Stuart because she initiated such a challenge) [Doc. # 97-12]. Because there are few free legal services available to minors in ORR custody other than Vera-funded providers, see Mot. for Class Cert., Ex. 6 at ¶¶ 8–10 (Mixon Decl.) [Doc. # 97-10], ORR’s conduct will likely deprive most (if not all) such children of the opportunity to meaningfully challenge the agency’s release, placement, and medication decisions. Thus, whether this policy or practice violates federal law (e.g., the TVPRA) is a common question for nearly all detained children from non-contiguous countries who are placed in restrictive settings, denied release to their proposed custodians, or forced to take psychotropic medications. See FAC at ¶ 144 (asserting that 8 U.S.C. § 1232(c)(5), 6 U.S.C. § 279(b)(1)(A), and certain regulations relating thereto collectively require ORR to provide pro bono counsel to alien minors who are not from contiguous countries). Thus, the Court concludes that each of the five putative classes satisfy the commonality requirement of Rule 23(a)(2).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 22 of 28

3. Rule 23(a)(3): Typicality

Typicality requires a showing that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The purpose of this requirement “is to assure that the interest of the named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Id. (quoting Hanon, 976 F.2d at 508). The typicality standard under Rule 23(a)(3) is “permissive”: “representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).

First, Plaintiffs have offered evidence showing that Lucas R., Miguel Angel S., Gabriela N., and Jaime D. were placed in a secure facility or an RTC without being given notice of the transfer or an opportunity to be heard before a neutral and detached decisionmaker. See Mot. for Class Cert., Ex. 21 at ¶ 5 (Lucas R. Decl.) (when he was informed of the transfer to Shiloh RTC, the case worker told him that “someone else had already approved the transfer and [he] had to go”) [Doc. # 105-1]; Mot. for Class Cert., Ex. 12 at ¶ 3 (Miguel Angel S. Suppl. Decl.) (he did not receive any written notice of his transfer to Yolo Juvenile Detention Center, and no one told him he could appeal that decision) [Doc. # 105-1]; Mot. for Class Cert., Ex. 14 at ¶¶ 5–6 (Gabriela N. Decl.) (she does not recall being told that she could appeal or challenge ORR’s decision to place her in Shiloh RTC) [Doc. # 105-1]; Mot. for Class Cert., Ex. 20 at ¶¶ 6–8 (Jaime D. Decl.) (same as Miguel Angel S.’s experience) [Doc. # 105-1]. Further, Plaintiffs allege—and Defendants do not dispute—that ORR transferred Sirena P. to Shiloh RTC without notice.20 See Mot. for Class Cert. at 18.

Second, Plaintiffs proffer evidence showing that ORR refused to release Lucas R. and Gabriela N. to their respective proposed custodians without providing notice or an opportunity to be heard regarding their respective custodians’ suitability. See Mot. for Class Cert., Ex. 22 at ¶

20 Plaintiffs assert in their reply brief that Daniela Marisol T. and Benjamin F. should also be representatives of the step-up class. See Reply re Mot. for Class Cert. at 21. The Court is unable to make that determination, however, because Daniela Marisol T.’s declarations provide little detail regarding the circumstances of her transfer to Shiloh RTC, see Mot. for Class Cert., Exs. 10–11 (Daniela Marisol T. Decls.) [Doc. # 105-1], and Plaintiffs have not supplied Benjamin F.’s declaration.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 23 of 28

18 (Madelyn R. Decl.) (an ORR social worker told Madelyn R. that Lucas R. could not be released to her; the social worker said that the decision was final, and did not give Madelyn a written decision or an opportunity to appeal the denial) [Doc. # 105-1]; Mot. for Class Cert., Ex. 18 at ¶ 12 (Isaac N. Decl.) (a social worker at Shiloh RTC told Isaac that ORR “threw out” his sponsorship application for Gabriela N.; ORR never formally informed Isaac N. that it denied his application) [Doc. # 105-1]. The evidence also strongly suggests that ORR continued to detain these two Plaintiffs for more than thirty days after their proposed custodians had submitted information requested by ORR.21 See Mot. for Class Cert., Ex. 22 at ¶¶ 6–7 (Madelyn R. Decl.) [Doc. # 105-1]; Mot. for Class Cert., Ex. 18 at ¶¶ 8–9, 12, 15 (Isaac N. Decl.) [Doc. # 105-1].

Third, the record indicates that ORR has routinely administered psychotropic medications to Lucas R., Gabriela N., Daniela Marisol T., and Miguel Angel S. without obtaining informed consent or court authorization to do so. Mot. for Class Cert., Ex. 21 at ¶ 6 (Lucas R. Decl.) (he takes one pill every day for anxiety; as far as he knows, the staff never asked for his family’s permission before administering the medication) [Doc. # 105-1]; Mot. for Class Cert., Ex. 17 (Gabriela N.’s Medication Information and Reconciliation Form, which shows that she was ordered to take 20 milligrams of fluoxetine every evening) [Doc. # 105-1]; Mot. for Class Cert., Ex. 19 at ¶¶ 9–11 (Isaac N. Suppl. Decl.) (neither he (Gabriela N.’s grandfather) nor Gabriela N.’s mother ever gave written permission for Gabriela N. to receive medication, and Isaac N. did not receive any notice that ORR sought court approval) [Doc. # 105-1]; Mot. for Class Cert., Ex. 11 at ¶ 4 (Daniela Marisol T. Suppl. Decl.) (ORR makes her take three pills a day for anxiety) [Doc. # 105-1]; Opp’n re MTD, Ex. 4 at 13 (Authorization for Medical, Dental, and Mental Health Care Form) (purportedly authorizing a shelter facility to dispense prescription medication to Daniela Marisol T.) [Doc. # 112-4]; Mot. for Class Cert., Ex. 12 at ¶ 3 (Miguel Angel S. Suppl. Decl.) (he takes medication for depression and anxiety) [Doc. # 105-1]; Mot. for Class Cert., Ex. 13 at ¶¶ 17–21 (Gerardo S. Decl.) (ORR never obtained his written consent to administer medication to his son, Miguel Angel S., and Gerardo S. did not receive any notification that ORR sought court approval) [Doc. # 105-1]. Defendants also do not controvert Plaintiffs’ claims that ORR administered psychotropic drugs to Sirena P. and Benjamin F. without their families’ informed consent. See Mot. for Class Cert. at 18–19.

Fourth, as discussed supra in Part II.B.2, Plaintiffs have shown that ORR blocks Verafunded legal service providers from challenging the agency’s custody of unaccompanied minors and the conditions thereof. Defendants counter that “[n]either the First Amended Complaint nor

21 Plaintiffs assert that Daniela Marisol T. should also be named a representative of the unfit custodian class. See Reply re Mot. for Class Cert. at 21. The Court declines to do so at this time, because her declarations do not specify when her proposed custodian submitted the information requested by ORR.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 24 of 28

the Motion to Certify Class identifies a single class member whom ORR has blocked from receiving legal services[.]”22 See Opp’n re Mot. for Class Cert. at 28–29. Nonetheless, ORR’s alleged policy or practice of discouraging such programs from taking any legal action against the agency by its very nature inflicts a systemic injury—i.e., it deprives detained minors of an opportunity to challenge placement, detention, and medication decisions. Whether any of the Individual Plaintiffs were subjectively aware of that fact is beside the point. Further, the claims belonging to Lucas R., Gabriela N., Daniela Marisol T., and Jaime D. are typical of those belonging to the legal assistance class because: (1) they assert the same claims as the step-up class, the unfit custodian class, and/or the drug administration class; and (2) it is undisputed that these four Plaintiffs are from non-contiguous countries.23 See Mot. for Class Cert. at 17–18 (Daniela Marisol T. and Jaime D. are from Honduras) [Doc. # 97-1]; Mot. for Class Cert.. Ex. 21 at ¶ 2 (Lucas R. Decl.) (Lucas R. is from Guatemala) [Doc. # 105-1]; Mot. for Class Cert., Ex. 14 at ¶ 2 (Gabriela N. Decl.) (Gabriela N. is from El Salvador) [Doc. # 105-1].
Lastly, Plaintiffs contend—and Defendants do not dispute—that ORR transferred Lucas R., Gabriela N., Sirena P., and Benjamin F. to Shiloh RTC because of their mental health needs. See Mot. for Class Cert. at 17–19, 21. Defendants also do not contest that ORR placed Miguel Angel S. in Yolo County Juvenile Detention Center and Shiloh RTC because of his mental health needs. See Mot. for Class Cert. at 17–18.
Because the aforementioned proposed class representatives have suffered injuries similar to those sustained by other members of their respective putative classes, the Court finds that Plaintiffs have satisfied Rule 23(a)(3)’s typicality requirement.
4. Rule 23(a)(4) and Rule 23(g): Adequacy
Rule 23(a)(4) permits certification of a class action if “the representative parties will fairly and adequately protect the interests of the class.” Rule 23(a)(4) presents two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on

22 Although Defendants frame this issue as one of adequacy, the Court addresses it in connection with the typicality prong because it concerns whether Plaintiffs suffered an injury similar to that of the other putative class members. See 1 Newberg on Class Actions § 3:32 (5th ed. 2018) (“The typicality prerequisite overlaps with the Rule 23(a)(4) requirement that class representation be adequate . . . .”).
23 The FAC alleges that Benjamin F. is a native and citizen of El Salvador (i.e., a non-contiguous country). See FAC at ¶ 16. Because Plaintiffs did not make that assertion in their Motion for Class Certification or supply a supporting declaration from Benjamin F., that assertion is neither undisputed nor supported by the evidence.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 25 of 28

behalf of the class?” See Hanlon, 150 F.3d at 1020. Similarly, Rule 23(g)(1) requires courts to consider several factors “pertinent to counsel’s ability to fairly and adequately represent the interests of the class[.]”

The Court has already found that the Individual Plaintiffs’ claims are typical of those pertaining to their respective putative classes, see supra Part III.B.3, and there are no apparent conflicts of interest between the Individual Plaintiffs and the absent proposed class members. Defendants nonetheless contend that Lucas R.’s, Sirena P.’s, and Benjamin F.’s claims are moot because ORR released them.24 See Opp’n re Mot. for Class Cert. at 26–27 & n.11. It is unlikely that these Plaintiffs’ claims truly are moot because the Flores Agreement authorizes ORR to reassume custody over them under certain circumstances. See Flores Agreement at ¶ 16; see also Saravia, 280 F. Supp. 3d at 1177–82 (noting that ORR had reassumed custody over three minors the agency initially released).

Even if Defendants have released these Plaintiffs, however, Lucas R., Sirena P., and Benjamin F. may still serve as class representatives. The Ninth Circuit has held that “a named plaintiff’s claim is ‘transitory in nature and may otherwise evade review’” if a defendant employs a “tactic of ‘picking off’ lead plaintiffs to avoid a class action.” See Chen v. Allstate Ins. Co., 819 F.3d 1136, 1143 (9th Cir. 2016) (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011)). Under those circumstances, “the named plaintiff may continue to represent the class until the district court decides the class certification issue.” See id. (quoting Pitts, 653 F.3d at 1092). Here, Defendants did not release any of the Individual Plaintiffs until after the filing of the FAC on September 7, 2018. See De La Cruz Decl. at ¶¶ 2–8 [Doc. # 1231]. Additionally, Defendants did not release three of the named Plaintiffs until after they filed the instant Motion for Class Certification. See id. at ¶¶ 6–8. It follows that Plaintiffs’ claims are inherently transitory and may evade review if the Court countenances Defendants’ transparent attempts to thwart their Motion for Class Certification.25

24 Plaintiffs concede that ORR also released Miguel Angel S. sometime in early to mid-October 2018. See Reply re Mot. for Class Cert. at 20 n.9. Additionally, on the day before the November 2, 2018 hearing on the instant motions, Defendants informed the Court that ORR also released Gabriela N., Daniela Marisol T., and Jaime D. See De La Cruz Decl. at ¶¶ 3, 7–8 [Doc. # 123-1]. Thus, Defendants’ contention regarding mootness applies with equal force to all of their claims as well.

25 Defendants contend that Sirena P.’s and Benjamin F.’s requests for release were “well underway and near complete” when they were joined as Plaintiffs. See Opp’n re Mot. for Class Cert. at 26–27 n.11. The declaration they cite for that proposition, however, does not support it. See De La Cruz Decl. at ¶¶ 2–4 [Doc. # 1221]. Further, the Court is not persuaded by Defendants’ contention that Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), prevents Plaintiffs from relying on the “inherently transitory” claim doctrine. Since Genesis was decided, the Ninth Circuit reaffirmed the proposition that a defendant’s litigation strategy can invoke that exception

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 26 of 28

With regard to the second prong of the Rule 23(a)(4) analysis, Defendants contend in their Opposition that the Individual Plaintiffs are not adequate class representatives because none of them submitted declarations showing that they were willing and able to prosecute this action and make themselves available for depositions, discovery, and trial. See Opp’n re Mot. for Class Cert. at 26. Thereafter, Miguel Angel S. and Gabriela N. submitted declarations to that effect. See Reply re Mot. for Class Cert., Ex. 34 at ¶¶ 1–6 (Miguel Angel S. Suppl. Decl.) [Doc. # 1191]; Reply re Mot. for Class Cert., Ex. 35 at ¶¶ 1–7 (Gabriela N. Suppl. Decl.) [Doc. # 119-2]. Moreover, Plaintiffs counter that Defendants do not “offer any legal authority that [this] objection disqualifies [the other Individual] Plaintiffs from serving as class representatives” and “[i]t would be nonsensical to assume that Plaintiffs . . . have no desire to seek redress for the injuries [ORR allegedly] caused them.” See Reply re Mot. for Class Cert. at 20. The Court agrees with Plaintiffs, and declines Defendants’ invitation to elevate form over substance. The Court thus concludes that all of the Individual Plaintiffs are adequate class representatives with regard to their respective classes as defined below.
Furthermore, the declarations of Plaintiffs’ attorneys reveal that they have undertaken considerable efforts to investigate the claims in this action, they have extensive experience and knowledge regarding complex class litigation brought on behalf of immigrant children, and they have the necessary personnel and resources to prosecute this action to final judgment. See Mot. for Class Cert., Ex. 28 at ¶¶ 1–6 (Cooper Decl.) [Doc. # 97-32]; Mot. for Class Cert., Ex. 29 at ¶¶ 1–5 (Holguín Decl.) [Doc. # 97-33]; Mot. for Class Cert., Ex. 30 at ¶¶ 1–10 (Welch Decl.) [Doc. # 97-34]; Mot. for Class Cert., Ex. 31 at ¶¶ 1–9 (White Decl.) [Doc. # 97-35]; Mot. for Class Cert., Ex. 32 at ¶¶ 1–5 (Wynn Decl.) [Doc. # 97-36]. The Court therefore finds that Plaintiffs’ counsel will fairly and adequately represent the interests of the five proposed classes. See also Opp’n re Mot. for Class Cert. at 26 (“Defendants have no concern that plaintiffs’ counsel will prosecute the action vigorously on behalf of the class[es].”).
5. Rule 23(b)(2): Whether Injunctive or Declaratory Relief Is Appropriate for the Classes
To obtain class certification under Rule 23(b)(2), the movant must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” “The rule does not require [courts] to examine the viability or bases of class members’

to mootness. See Chen, 819 F.3d at 1138 (“Although [the defendant] argues that Pitts is no longer good law after Genesis . . . we rejected that very argument in Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (‘Gomez’), aff’d, 136 S. Ct. 663 (2016). Pitts therefore remains the law of the circuit.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 27 of 28

claims for declaratory and injunctive relief, but only to look at whether class members seek uniform relief from a practice applicable to all of them.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). “‘[I]t is sufficient’ . . . that ‘class members complain of a pattern or practice that is generally applicable to the class as a whole.’” See id. (quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)).

As noted throughout Part III.B, supra, Defendants have largely refrained from disputing Plaintiffs’ assertions that ORR consistently employs the policies and/or practices challenged by the five putative classes, and Plaintiffs’ evidence corroborates their claims that ORR has engaged in such conduct. In addition, Plaintiffs specifically request a declaration that these policies and/or practices are unlawful and an injunction barring Defendants from continuing to implement them. Thus, class certification under Rule 23(b)(2) is appropriate.

IV. CONCLUSION

For the foregoing reasons, the Court issues the following rulings:

1. Defendants’ MTD is GRANTED only insofar as it seeks the dismissal without prejudice of Plaintiffs’ claims to enforce the Flores Agreement, but not insofar as it requests the dismissal of Plaintiffs’ claims that ORR failed to provide sufficient procedural safeguards for alien minors to exercise their Flores rights. The remainder of Defendants’ MTD is DENIED;

2. Defendants shall file an Answer to the FAC within 60 days of the date of this Order;

3. Plaintiffs’ Motion for Class Certification is GRANTED. The Court CERTIFIES five classes that are comprised of all minors in ORR custody pursuant to 6 U.S.C. section 279 and/or 8 U.S.C. section 1232:

a. who are or will be placed in a secure facility, medium-secure facility, or RTC, or whom ORR has continued to detain in any such facility for more than 30 days, without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker regarding the grounds for such placement (i.e., the “step-up class”);
b. whom ORR is refusing or will refuse to release to parents or other available custodians within 30 days of the proposed custodian’s submission of a

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date November 2, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 28 of 28

complete family reunification packet on the ground that the proposed custodian is or may be unfit (i.e., the “unfit custodian class”); c. who are or will be prescribed or administered one or more psychotropic medications without procedural safeguards;26 d. who are natives of non-contiguous countries and to whom ORR is impeding or will impede legal assistance in legal matters or proceedings involving their custody, placement, release, and/or administration of psychotropic drugs (i.e., the “legal representation class”); and e. who have or will have a behavioral, mental health, intellectual, and/or developmental disability as defined in 29 U.S.C. [section] 705, and who are or will be placed in a secure facility, medium-secure facility, or [RTC] because of such disabilities (i.e., the “disability class”);

4. The Court APPOINTS the following class representatives:

a. Lucas R., Miguel Angel S., Gabriela N., Jaime D., and Sirena P. shall serve as representatives of the step-up class;
b. Lucas R. and Gabriela N. shall serve as representatives of the unfit custodian class; c. Lucas R., Daniela Marisol T., Gabriela N., Miguel Angel S., Sirena P., and Benjamin
F. shall serve as representatives of the drug administration class; d. Lucas R., Gabriela N., Daniela Marisol T., and Jaime D. shall serve as representatives
of the legal representation class; and e. Lucas R., Miguel Angel S., Gabriela N., Sirena P., and Benjamin F. shall serve as
representatives of the disability class; and

5. The Court APPOINTS Carlos R. Holguín of the Center for Human Rights & Constitutional Law; Leecia Welch, Neha Desai, and Poonam Juneja of the National Center for Youth Law; Holly S. Cooper and Carter C. White of the University of California Davis School of Law; and Summer Wynn, Mary Kathryn Kelley, Jon Cieslak, and Megan Donohue of Cooley LLP as class counsel.

IT IS SO ORDERED.

26 This class need not be defined by referring to certain examples of procedures ORR does not offer to detained minors.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 1 of 28

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS - AMENDED ORDER RE DEFENDANTS’ MOTION TO DISMISS [101] AND PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [97]

On September 7, 2018, Plaintiffs Lucas R., Daniela Marisol T., Miguel Angel S., Gabriela N., Jaime D., Sirena P., Benjamin F., San Fernando Valley Refugee Children Center, Inc., and Unaccompanied Central American Refugee Empowerment filed a First Amended Class Action Complaint for Declaratory, Injunctive, and Nominal Monetary Relief (“FAC”) against Alex Azar, the Secretary of the U.S. Department of Health and Human Services (“HHS”), and E. Scott Lloyd, the Director of the Office of Refugee Resettlement (“ORR”). [Doc. # 81.] The FAC alleges that ORR pursues certain policies and/or practices relating to the detention of undocumented immigrant or refugee minors that purportedly violate: the consent decree entered in Flores v. Sessions, No. 85-4544-DMG (AGRx) (C.D. Cal.) [Doc. # 101] (“Flores Agreement”), the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), the Due Process Clause of the Fifth Amendment, and the Freedom of Association Clause of the First Amendment. See FAC at ¶¶ 2–3, 4.a–d. The FAC further claims that ORR pursues certain policies and/or practices that discriminate against undocumented minors on the basis of their actual or perceived disabilities, which allegedly violate Section 504 of the Rehabilitation Act. See id. at ¶¶ 4.e–f, 192–94.

On September 28, 2018, Defendants filed a Motion to Dismiss or Transfer (“MTD”) [Doc. # 101] and Plaintiffs filed a Motion for Class Certification. [Doc. # 97.] Both motions have since been fully briefed. [Doc. ## 106, 107, 113, 114.] For the reasons discussed in this Order, the Court GRANTS IN PART and DENIES IN PART Defendants’ MTD and GRANTS Plaintiffs’ Motion for Class Certification.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 2 of 28

I. FACTUAL BACKGROUND1

Plaintiffs Lucas R., Daniela Marisol T., Gabriela N., Miguel Angel S., Jaime D., Sirena P., and Benjamin F. (collectively, “Individual Plaintiffs”)2 are undocumented minors who are or recently were in ORR’s custody.3 See FAC at ¶¶ 10–16. Plaintiff San Fernando Valley Refugee Children Center (“Children Center”) is a non-profit organization that has its principal place of business in North Hills, California. Id. at ¶ 17. The Children Center’s mission is to provide comprehensive social services (e.g., mental health care, shelter, transitional living assistance, and legal aid) to children, youth, and families who entered the country to seek refuge from persecution and endemic violence in El Salvador, Honduras, and Guatemala. Id. Plaintiff Unaccompanied Central American Refugee Empowerment (“UCARE”) is an unincorporated consortium of non-profit agencies that has its principal place of business in Los Angeles, California; most of the non-profit agencies belonging to UCARE are incorporated in California. Id. at ¶ 19. UCARE’s mission is to advocate for and provide legal and social services to immigrant and refugee minors, many of whom are or have been in ORR or Immigration and Customs Enforcement (“ICE”) custody. Id. To the extent that ORR implements any policies or practices that deny or delay the release of minors in the agency’s custody, such conduct denies or delays UCARE’s member organizations’ opportunity to serve those minors. See id. The Children Center’s and UCARE’s ability to raise funds depends in part on the raw number of children and youth to whom they provide services. See id. at ¶¶ 18–19. ORR has placed many minors in communities that the Children Center and UCARE serve (e.g., in federal fiscal year 2018, ORR placed more than 1,100 alien minors in Los Angeles). See id. at ¶ 20.

1 The Court assumes the truth of the FAC’s allegations solely for the purpose of deciding Defendants’ MTD for lack of subject matter jurisdiction and failure to state a claim. See infra Part II.A. With regard to Defendant’s MTD for lack of venue, the Court presumes that the FAC’s averments are true to the extent they are not contradicted by extrinsic evidence. See id. Lastly, the FAC’s averments may be considered in connection with Plaintiff’s Motion for Class Certification to the extent that they are supported by extrinsic evidence or are undisputed. See infra Part III.B.

2 The Court previously granted the Individual Plaintiffs leave to proceed in this matter under pseudonyms. Order re Ex Parte Application for Leave to Proceed Using Pseudonyms [Doc. # 92].

3 The TVPRA provides that HHS is responsible for the custody of all unaccompanied alien children. See 8 U.S.C. § 1232(b)(1). ORR is the division of HHS that has been entrusted with that responsibility. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1178 (N.D. Cal. 2017).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 3 of 28

Plaintiffs allege that ORR has adopted and implemented the following six policies and/or practices in violation the Flores Agreement, the TVPRA, the Due Process Clause, the Freedom of Association Clause, and/or Section 504 of the Rehabilitation Act:

(a) ORR confines children in medium[-]secure facilities, residential treatment centers (“RTCs”), and secure facilities peremptorily, often on bare allegations they are dangerous or pose a flight risk, without affording them a meaningful opportunity to be heard regarding the reasons for such placement;
(b) ORR prolongs children’s detention on the ground that their parents or other available custodians are or may be unfit, while affording neither detained juveniles nor their proposed custodians a meaningful or timely opportunity to be heard regarding a proposed custodian’s fitness;
(c) ORR places children in [RTCs] and detention facilities in which it knows they will be administered powerful psychotropic medications for weeks, months, or years, without procedural safeguards, including seeking informed parental consent or other lawful authorization, even from parents present in the United States[;]
(d) ORR blocks lawyers from representing detained children with respect to placement, non-consensual administration of psychotropic medications, or release to available custodians notwithstanding that Congress has allocated funds specifically to provide such lawyers to represent children who are or have been in ORR custody in “legal matters,” including issues related to release and [placement in the least-restrictive setting];
(e) ORR segregates children who have or are perceived to have a behavioral, mental health, intellectual, and/or developmental disability in secure facilities, medium[-]secure facilities, and RTCs, instead of the most integrated setting appropriate to their needs; and
(f) ORR[] prolong[s] the detention of children who have or are perceived to have a behavioral, mental health, intellectual, and/or developmental disability by placing them in restrictive settings associated with heightened administrative barriers to release.

See id. at ¶¶ 4.a–e.

The FAC asserts five causes of action, which challenge ORR’s policies and/or practices concerning the agency’s: (1) determinations of potential custodians’ fitness; (2) placement of minors in RTCs, secure facilities, and medium-secure facilities; (3) administration of

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 4 of 28

psychotropic drugs to minors; (4) decision to block minors’ access to legal assistance in matters relating to custody, medication, and release; and (5) discrimination against undocumented minors on the basis of their disabilities. See id. at 54–57.

II. LEGAL STANDARDS

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may raise either a facial or a factual challenge to a federal court’s subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When resolving a facial attack, a court “presume[s] the truthfulness of the plaintiff’s allegations” and determines whether they establish that subject matter jurisdiction is proper. See id. Defendants raise a facial attack to the Children Center’s and UCARE’s Article III standing to bring suit. See MTD at 10–14.4

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to challenge a complaint for improper venue. In considering such a motion, “[the] pleadings need not be accepted as true, and facts outside the pleadings may be considered.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). Once venue is challenged, a plaintiff bears the burden of showing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). If the Court determines that venue is improper, it “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a); see also King v. Russell, 963 F.2d 1301, 1304–05 (9th Cir. 1992) (holding that the decision to dismiss or transfer for improper venue is committed to the sound discretion of the district court).

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may seek to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a pleading need not contain “detailed factual allegations,” it must contain “more than

4 All page references herein are to page numbers inserted by the CM/ECF system.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 5 of 28

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating the sufficiency of a complaint, courts must accept all factual allegations as true. Id. (citing Twombly, 550 U.S. at 555). Legal conclusions, in contrast, are not entitled to the assumption of truth. Id.

B. Motion for Class Certification

A district court has broad discretion in making a class certification determination under Rule 23. Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001); see also Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979) (district courts “have broad power and discretion vested in them by Fed. Rule Civ. Proc. 23”). Nonetheless, a court must exercise its discretion “within the framework of Rule 23.” Navellier, 262 F.3d at 941.

The following prerequisites must be met before a court may certify a class under Rule 23:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of
the class.

Fed. R. Civ. P. 23(a).

In addition to Rule 23(a)’s prerequisites, a party moving for class certification must also satisfy one of the criteria of Rule 23(b). Rule 23(b)(2) authorizes certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]”

“The party seeking class certification bears the burden of establishing that the proposed class meets the requirements of Rule 23.” Edwards v. First Am. Corp., 798 F.3d 1172, 1177 (9th Cir. 2015). Certification is properly granted only if “after a rigorous analysis[,]” the district court concludes that Rule 23’s requirements have been satisfied. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011). In conducting this analysis, “[m]erits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 6 of 28

Rule 23 prerequisites for class certification are satisfied.” Stockwell v. City & Cty. of S.F., 749 F.3d 1107, 1111 (9th Cir. 2014) (alteration in original) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013)).
III. DISCUSSION
A. Defendants’ MTD
Defendants’ MTD raises the following arguments: (1) the Children Center and UCARE lack Article III standing to bring suit; (2) the Court should dismiss or transfer this action on the basis of improper venue; and (3) the FAC fails to state claims for relief under the Flores Agreement, the TVPRA, the Administrative Procedure Act (“APA”), the Due Process Clause, and Section 504 of the Rehabilitation Act. See MTD at 8, 23–30. The Court addresses each of these arguments in turn.
1. The Children Center’s and UCARE’s Article III Standing
“The three well-known ‘irreducible constitutional minim[a] of standing’ are injury-infact, causation, and redressability.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “A plaintiff bears the burden of demonstrating that her injury-in-fact is ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Id. (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).
Defendants argue that the Children Center’s and UCARE’s alleged injuries are speculative. Specifically, they contend that the FAC “assumes that some child in ORR custody may eventually use their services for which they may receive funds or for which they may have to provide extra treatment,” and that these two organizational Plaintiffs “suffer no injury from the alleged delay” in the release of alien minors because the children “would eventually be served by the organization[s].” See MTD at 12. Consequently, Defendants contend that Plaintiffs have failed to establish that ORR’s policies and/or practices have negatively impacted the funding of these two organizations, which depends in part on the number of minors they serve.5 See id. at 12–14.

5 Defendants also suggest that the FAC fails to supply sufficient detail regarding “how these organizations raise their funds.” See Reply re MTD at 8. The Court rejects this argument because it is entirely plausible that the Children Center’s and UCARE’s donors would be inclined to provide additional funding if these organizations were

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Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 7 of 28 Page ID #:4513

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 7 of 28

The FAC alleges that “ORR has placed many unaccompanied children in the communities that the Children Center and UCARE serve” and “ORR placed more than 1,100 unaccompanied children in Los Angeles alone” in fiscal year 2018. See FAC at ¶ 20. Further, the FAC alleges that UCARE serves “immigrant and refugee minors . . . [who] are or have been in ORR” custody, and that ORR denies or delays their release. See id. at ¶ 19. These allegations plausibly demonstrate that ORR’s conduct interferes with UCARE’s ability to serve undocumented minors who are or have been in the agency’s custody. See Davidson, 889 F.3d at 969–70 (holding that plausible allegations of future harm are sufficient to establish standing at the pleading stage). Further, Defendants’ argument entirely neglects one crucial fact—i.e., delays in obtaining funding have concrete financial consequences for UCARE. See, e.g., Appalachian Reg’l Healthcare v. Coventry Health & Life Ins. Co., 970 F. Supp. 2d 687, 696 (E.D. Ky. 2013) (concluding that a delay in payment gives rise to an injury-in-fact). It follows that UCARE has pled an injury-in-fact that is fairly traceable to ORR’s policies and/or practices that deny or delay the release of alien minors, and redressable by an order enjoining such conduct.

Additionally, the FAC avers that to accomplish its mission to provide comprehensive social services to refugee minors from Central America, the Children Center has been forced to divert its limited resources to remedying the mental and physical trauma these minors have suffered as a result of their prolonged detention and forced consumption of psychotropic medication while in ORR’s custody. See FAC at ¶¶ 17–18. Plaintiffs claim that this diversion of resources has reduced the number of undocumented minors and youth the Children Center is able to assist, thereby inhibiting its ability to raise funds. See id. at ¶ 18. These assertions give rise to the plausible inference that ORR’s policies and/or practices have caused the Children Center to suffer an injury-in-fact that would be mitigated if the agency ceased its allegedly unlawful conduct. See La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (“An organization suing on its own behalf can establish an injury when it suffered ‘both a diversion of resources and a frustration of its mission.’”) (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002))).

In sum, the Court concludes that the Children Center and UCARE have sufficiently pled Article III standing.

able to serve more alien minors. See FAC at ¶¶ 18–19; Public Lands for the People, Inc. v. U.S. Dep’t of Agric., 697 F.3d 1192, 1196 (9th Cir. 2012) (if there is a facial challenge to standing, a court must “accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party” (quoting Bernhardt v. Cty. of L.A., 279 F.3d 862, 867 (9th Cir. 2002)).

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 8 of 28 Page ID #:4514

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 8 of 28

2. Venue
Defendants argue that Plaintiffs have filed suit in an improper venue. Under 28 U.S.C. section 1391(e)(1), a civil action against an officer of a federal agency may be brought in any judicial district in which “(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action.” For the purposes of this general venue statute, “an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, . . . if a plaintiff, only in the judicial district in which it maintains its principal place of business.” See 28 U.S.C. § 1391(c)(2).
It is undisputed that the Children Center is a California corporation that has its principal place of business in this district (i.e., in North Hills, California), FAC at ¶ 17, and that UCARE is an unincorporated entity that has its principal place of business in this district as well (i.e., in Los Angeles, California, id. at ¶ 19.6 Because several (but not all) Plaintiffs reside in this district, venue is proper under 28 U.S.C. section 1391(e)(1)(C). See Immigrant Assistance Project of L.A. Cty. v. Immigration & Naturalization Serv., 306 F.3d 842, 868 (9th Cir. 2002) (“A civil action . . . in which a defendant is an agency of the United States and in which no real property is involved, may be brought, inter alia, in any judicial district in which a plaintiff resides.” (emphasis added)); Railway Labor Executives Ass’n v. Interstate Commerce Comm’n, 958 F.2d 252, 256 (9th Cir. 1991) (holding that “venue need be proper for only one plaintiff” under Section 1391(e)).
Defendants nonetheless insist that venue is improper because the Children Center and UCARE are not members of the putative classes (i.e., children in ORR custody).7 See MTD at 10, 17, 20 n.3. Yet, the Court has already concluded that these two Plaintiffs have Article III standing to raise their claims. See supra Part III.A.1. Furthermore, the Children Center and UCARE are properly joined in this action because all named Plaintiffs challenge the same policies and practices. See FAC at ¶¶ 4–5, 17–20; see also Immigrant Assistance Project, 306

6 The parties do not dispute that the Children Center and UCARE have the capacity to bring suit under applicable law.

7 Plaintiffs argue that the Children Center and UCARE may serve as class representatives because “the children and the youth they serve are the functional equivalent of their members.” See Reply re Mot. for Class Cert. at 18–19. This assertion is puzzling, given that the Children Center is a non-profit corporation that presumably does not have any “members,” and UCARE’s members are non-profit agencies. See FAC at ¶¶ 17–19. The Court need not resolve this issue because it concludes that the Individual Plaintiffs can serve as class representatives. See infra Part III.B.3–4.

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Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 9 of 28 Page ID #:4515

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 9 of 28

F.3d 842, 867–68 & n.20 (venue is proper under Section 1391(e) if either a putative class representative or an organization resided in the district); Fed. R. Civ. P. 20(a)(1) (“Persons may join in one action as plaintiffs if: . . . they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and . . . any question of law or fact common to all plaintiffs will arise in the action.”). Therefore, the Court shall not dismiss this action for improper venue.8

3. Claims Under the Flores Agreement

Defendants argue that the Court should dismiss as duplicative any claims alleging violations of the Flores Agreement. See MTD at 24–25. Plaintiffs counter that they are not required to litigate their Flores claims in that action because Paragraph 37 of the Agreement purportedly permits them to file an independent “individual or class action” in this District Court. See Opp’n re MTD at 27–28. Plaintiffs fail to recognize that the interests of judicial economy counsel against permitting them to enforce the Flores Agreement in this action.

“Plaintiffs generally have ‘no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled in part on another ground by Taylor v Sturgell, 553 U.S. 880, 884–85, 904 (2008). This prohibition on duplicative actions also extends to plaintiffs who are in privity with parties to the first suit. See id. at 689. Generally, “[d]ismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the ‘comprehensive disposition of litigation.’” See id. at 693 (quoting Kerotest Mfg. Co. v. C-O-Two Fore Equip. Co., 342 U.S. 180, 183 (1952)). Whether the dismissal is with or without prejudice is committed to the district court’s sound discretion. Id. at 692.

8 The Court need not address Defendants’ motion to transfer this action because it is predicated on their claim that this district is an improper venue. See MTD at 20–23. To the extent Defendants contend that the action ought to be transferred to the District of Columbia pursuant to 28 U.S.C. section 1404(a), that argument fails because they do not provide any evidentiary support for the only factor they claim weighs in favor of transfer—i.e., the convenience of the witnesses and location of books and records. See MTD at 22; see also E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994) (holding that the proponent of the transfer “bears a heavy burden of showing a clear balance of inconveniences to it[,]” and that “[a]ffidavits or declarations are required to identify key witnesses and [provide] a generalized statement of their anticipated testimony”).

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 10 of 28 Page ID #:4516

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 10 of 28

It is undisputed that the Individual Plaintiffs are members of the Flores Class, and that ORR is a party to that action.9 See FAC at ¶¶ 2–3, 21–22; Taylor, 553 U.S. at 894 (“Representative suits with preclusive effect on nonparties include properly conducted class actions . . . .”). There is also no dispute that the subject matter of Plaintiffs’ Flores claims and the Flores Action are the same. In their original Complaint, Plaintiffs admitted that the instant action is an “adjunct and supplement” to a motion to enforce that was filed in the Flores Action. See Compl. at ¶ 2 [Doc. # 1]. In resolving that motion, the Court found that ORR breached the Flores Agreement by: (1) detaining certain Class Members in Shiloh RTC in violation of Paragraphs 6, 7, 8, and 19 and Exhibit 1 of the Agreement, (2) failing to timely provide a written notice of reasons for placing a Class Member in a secure facility, staff-secure facility, or RTC in violation of Paragraph 24C of the Agreement, (3) placing certain Class Members in secure facilities in violation of Paragraph 21 of the Agreement, (4) administering psychotropic medication to Class Members at Shiloh RTC in violation of Paragraphs 6 and 9 and Exhibit 1 of the Agreement, and (5) undertaking certain policies that unnecessarily delay the release of Class Members to custodians in violation of Paragraphs 14 and 18 of the Agreement. See Order re Pls.’ Mot. to Enforce at 30–32, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 30, 2018) [Doc. # 470]. Further, the parties in Flores continue to actively litigate whether ORR, ICE, and U.S. Customs and Border Patrol have complied with the Agreement, notwithstanding the fact that the Court issued the consent decree more than 20 years ago. See, e.g., Order Appointing Special Master/Independent Monitor, Flores v. Sessions, No. CV 854544-DMG (AGRx) (C.D. Cal. Oct. 5, 2018) [Doc. # 494].

Because Plaintiffs’ claims under the Flores Agreement should be litigated only in that action, the Court DISMISSES without prejudice Plaintiffs’ first, second, third, and fourth causes of action to the extent that they seek enforcement of that Agreement. Nonetheless, Plaintiffs may pursue due process claims predicated on Defendants’ failure to provide sufficient procedural

9 Although the Children Center and UCARE are not parties to the Flores Action, they are subject to the same defenses as the Individual Plaintiffs because the Children Center and UCARE seek to assert the contractual rights of Flores Class Members. See Ronay Family Ltd. P’ship v. Tweed, 216 Cal. App. 4th 830, 840 (2013) (“[A] third party whose rights under a contract derive from those of a party to the contract [typically] cannot assert rights greater than those of the contracting party . . . .”); O’Neil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004) (“[T]he construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally.” (internal quotation marks omitted) (quoting United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992))). In addition, while Defendant E. Scott Lloyd has not been sued in his individual capacity in the Flores Action, the only claim Plaintiffs bring against him in his personal capacity is one under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), see FAC at ¶ 5, which authorizes damages claims for only constitutional violations (i.e., not breaches of consent decrees), see F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir. 1989) (holding that Bivens claims are available “[f]or certain constitutional violations”). The claim against Lloyd is therefore not subsumed within the Flores Action.

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 11 of 28 Page ID #:4517

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 11 of 28

safeguards for alien minors to exercise their Flores rights because Plaintiffs cannot bring those claims in the Flores Action.10 See Opp’n re MTD at 32–33 (alleging that the Flores Agreement’s protections are substantive rights protected by the Due Process Clause); Order re Pls.’ Mot. to Enforce at 5, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 30, 2018) (concluding that such claims have “no place in a motion to enforce the consent decree”) [Doc. # 470]; Adams, 487 F.3d at 689 (noting that the duplicative claim analysis determines “whether the second suit raises issues that should have been brought in the first” (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000))).

4. Plaintiffs’ TVPRA and APA Claims

Defendants argue that Plaintiffs’ claims under the TVPRA fail because they have not shown that the statute creates a private right of action. See MTD at 25. Relatedly, Defendants contend that Plaintiffs may not obtain a remedy under the APA because the FAC does not sufficiently allege the existence of a relevant “final agency action.”11 See id. at 28–29; Reply re MTD at 17; see also 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”). For the reasons discussed in this section, the Court concludes that the policies and/or

10 Defendants apparently request the dismissal of all of Plaintiffs’ claims on the ground that they are duplicative of those pending in the Flores Action. See Opp’n re Mot. for Class Cert. at 11 (asserting that the instant action is a “successive, identical class action” that includes “class members and claims identical in scope to an earlier certified class action” (emphasis added)). Yet, the Court specifically declared that the only claims that may be brought in the Flores Action are those arising under the Agreement. See Order re Pls.’ Mot. to Enforce at 2–3, 5– 6, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July 30, 2018) [Doc. # 470]. To the extent that Defendants intended to assert a res judicata defense, the Court rejects that argument because they failed to cogently raise or brief that point. See Fed. R. Civ. P. 7(b)(1)(B) (“A request for a court order must be made by motion. The motion must: . . . state with particularity the grounds for seeking the order.”).
11 Although Plaintiffs’ first four causes of action assert that Defendants’ policies violate the APA, the FAC does not clarify whether Plaintiffs intend to raise any standalone APA claims that are not predicated on violations of other federal statutes, the federal constitution, or the Flores Agreement. See FAC at ¶¶ 181, 184, 187, 190; see also Opp’n re MTD 30–31 (asserting in passing that “ORR’s challenged policies and practices are final and directly violate the APA[,]” but failing to articulate a standalone APA claim). Accordingly, the Court will limit its inquiry to whether the FAC satisfies the procedural prerequisites to suit under the APA. See also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 131 (2014) (noting that the APA has an “omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review”).

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Initials of Deputy Clerk KT

Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 12 of 28 Page ID #:4518

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 12 of 28

practices identified in the FAC constitute final agency actions such that Plaintiffs may raise their TVPRA claims under the APA.12
“Agency action is ‘final’ if at least two conditions are satisfied: ‘First, the action must mark the “consummation” of the agency’s decisionmaking process[;] . . . it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”’” Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1196 (9th Cir. 1997) (quoting Bennet v. Spear, 520 U.S. 154, 178 (1997)).
The FAC identifies several ORR policies and/or practices, which concern (inter alia) the placement of undocumented minors; their release to proposed custodians; the forced consumption of psychotropic medication; and blocking lawyers from representing minors in connection with ORR’s decisions regarding release, placement, and non-consensual administration of psychotropic medications. See FAC at ¶¶ 4.a–d. The FAC includes specific factual allegations demonstrating that these policies and/or practices are not tentative or interlocutory in nature, as ORR has already implemented them.13 See, e.g., id. at ¶¶ 37–46 (alleging that ORR placed Daniela Marisol T. in Shiloh RTC without notice or an opportunity to be heard, refused to release her to a custodian or provide any administrative means to challenge that decision, and required her to take psychotropic medications without court or family member

12 The FAC avers that “Plaintiffs have private rights of action against Defendants pursuant to . . . the Administrative Procedure Act,” but it does not allege a cause of action under the TVPRA itself. See FAC at ¶ 9. Yet, Plaintiffs’ Opposition to the MTD apparently argues that an implied private right of action exists under the TVPRA. See Opp’n re MTD at 29. Although Plaintiffs argue (inter alia) that “[n]othing in the enactment’s text or legislative history suggests” that an implied private right of action would frustrate the underlying purpose of the TVPRA, they fail to cite any legislative materials in support of that proposition. See id. Notwithstanding Plaintiffs’ failure to adequately show that the TVPRA creates a private right of action, the Court finds that, for the reasons discussed in this section, the APA still permits them to seek relief for violations of the TVPRA. See 5 U.S.C. § 706(2)(A) (providing that a court shall set aside agency action found to be “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law”). Additionally, for the reasons discussed in this section, Plaintiffs may assert their constitutional claims under the APA as well. See 5 U.S.C. § 706(2)(B) (providing that a court shall set aside agency action found to be “contrary to constitutional right, power, privilege, or immunity”); Navajo Nation v. Dep’t of Interior, 876 F.3d 1144, 1168–72 (9th Cir. 2017) (holding that 5 U.S.C. section 704’s “final agency action” requirement applies to causes of action brought under the APA, whereas it is not a condition of 5 U.S.C. section 702’s waiver of sovereign immunity).
13 The Court is not persuaded by Defendants’ contention that these allegations are not sufficiently detailed to survive a motion to dismiss. See Reply re MTD at 17; Iqbal, 556 U.S. at 678 (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” (quoting Twombly, 550 U.S. at 555)).

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CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 13 of 28 Page ID #:4519

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 13 of 28

authorization); id. at ¶¶ 145–52 (averring that “ORR routinely bars [Vera Institute of Justice]funded legal services providers from representing children in legal proceedings involving ORR’s custody, release, placement, and medication decisions”). Moreover, the FAC avers that these policies and/or practices violate Individual Plaintiffs’ and putative class members’ rights under the TVPRA, the Due Process Clause, and the Freedom of Association Clause of the First Amendment. See id. at ¶¶ 2–3. Aside from their unpersuasive arguments that Plaintiffs did not adequately plead their procedural due process claims, see infra Part III.A.5, Defendants fail to even argue that such legal consequences do not flow from ORR’s conduct. See Fed. R. Civ. P. 7(b)(1)(B). The Court thus rejects Defendants’ contention that no private right of action exists by which Plaintiffs may obtain relief for ORR’s violations of the TVPRA. Cf. L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 612 (S.D.N.Y. 2018) (holding that ORR’s policy of requiring director-level review before certain alien minors are released from custody was final agency action for the purposes of the APA because ORR had already adopted the policy and legal consequences flowed from it).

5. Plaintiffs’ Procedural Due Process Theories

Defendants contend that Plaintiffs’ procedural due process claims should be dismissed because: (1) the FAC supposedly fails to identify any underlying substantive rights protected by the Due Process Clause, and (2) undocumented minors are not entitled to any procedural protections beyond those explicitly provided by Congress.14 See MTD at 25–28. These contentions are entirely without merit.

“[P]rocedural due process . . . has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A constitutionally protected substantive interest may arise from the federal constitution itself, see Zadvydas v. Davis, 533 U.S. 678, 690 (2001), a statute, see Carver v. Lehman, 558 F.3d 869, 874–75 (9th Cir. 2009), or a contract, see San Bernardino Physicians’ Servs. Med. Grp. v. Cty. of San Bernardino, 825 F.2d 1404, 1407–08 (9th Cir. 1987); see also Smith v. Sumner, 994 F.2d 1401, 1406 (9th Cir. 1993) (a consent decree can give rise to a constitutionally protected interest). A statute may create a substantive interest protected by the Due Process Clause by using

14 Although Defendants’ MTD discusses certain legal principles relating to the substantive component of the Due Process Clause, it appears that Defendants challenge only Plaintiffs’ procedural due process claims. See MTD at 25–26 (“The failure to plead a substantive right is fatal to the various procedural due process claims.”); Reply re MTD at 18 (“Plaintiffs do not cite any legal authority to support their conclusory arguments that children in ORR custody are entitled to constitutional procedural protections concerning their placement in licensed facilities and the prescription of psychotropic drugs.”).

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Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 14 of 28 Page ID #:4520

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 14 of 28

“mandatory language” that imposes an obligation on government officials. See Carver, 558 F.3d at 872–73. Further, whether a contractual right is protected by the Due Process Clause depends upon “the security with which [the interest] is held under [the applicable] law and its importance to the holder.” See San Bernardino Physicians’ Servs., 825 F.3d at 1409 (alteration in original) (quoting Brown v. Brienen, 722 F.2d 360, 364 (7th Cir. 1983)). A contractual provision may be of sufficient importance if it can be “easily characterized as a civil right.” See id.

Here, the FAC alleges that ORR’s policies and/or practices violate detained minors’ constitutional rights to freedom from detention, familial association, and bodily integrity. See FAC at ¶¶ 106–08, 116, 122–23, 137, 142; see also Zadvydas, 533 U.S. at 690 (“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause protects.”); Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“The substantive due process right to family integrity or to familial association is well established.”); cf. United States v. Loughner, 672 F.3d 731, 744 (9th Cir. 2012) (“[I]nmates possess ‘a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause . . . .’” (quoting Washington v. Harper, 494 U.S. 210, 221–22 (1980))).

Plaintiffs further allege that ORR’s refusal to promptly release undocumented minors; its placement of children in secure facilities, medium-secure facilities, and RTCs; its decision to involuntarily medicate minors; and its interference with minors’ access to counsel violate the agency’s obligations under the TVPRA. See FAC at ¶¶ 104, 108, 118–121, 133, 140–42, 146– 52. The provisions of the TVPRA upon which Plaintiffs rely use mandatory language to prescribe the agency’s duties. See 8 U.S.C. § 1232(c)(2)(A) (“[A]n unaccompanied alien child in the custody of [ORR] shall be promptly placed in the least restrictive setting that is in the best interest of the child. . . . A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or otherwise has been charged with having committed a criminal offense.” (emphasis added)); id. § 1232(c)(5) (“[ORR] . . . shall ensure . . . that all unaccompanied alien children [from non-contiguous countries] have counsel to represent them in legal proceedings or matters and to protect them from mistreatment, exploitation, and trafficking.” (emphasis added)).

Furthermore, the FAC relies upon provisions of the Flores Agreement that require the prompt release of alien minors to proposed custodians, the placement of children in non-secure licensed facilities, and adherence to all applicable state child welfare laws and regulations. See FAC at ¶¶ 103, 117, 132, 134; Flores Agreement at ¶¶ 6, 14, 18–19, Ex. 1 at ¶ A. These protections are secured by a consent decree and constitute civil rights because they are akin to the constitutional and statutory rights discussed above. See Smith, 994 F.2d at 1406 (“‘[I]t would

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Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 15 of 28 Page ID #:4521

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 15 of 28

be passing strange if a consent decree, which possesses all the attributes of an ordinary contract plus the additional element of judicial approbation, were to be accorded some inferior status.” (quoting Rodi v. Ventetuolo, 941 F.2d 22, 28 (1st Cir. 1991))). Therefore, the Court concludes that Plaintiffs have satisfactorily identified the substantive rights underlying their procedural due process claims.

Defendants’ second argument is inapt because it relies upon cases involving procedures for the admission or exclusion of aliens. See Shaughnessy v. United states ex re. Mezei, 345 U.S. 206, 212 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’” (citations omitted) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950))); Angov v. Lynch, 788 F.3d 893, 898 (9th Cir. 2015) (“[The alien] has no . . . right [to procedural due process]. He presented himself at the San Ysidro port of entry without valid entry documents and sought asylum. . . . [T]hose, like [the alien], who have never technically ‘entered’ the United States have no such rights.” (emphasis added)); United States v. Barajas-Alvarado, 655 F.3d 1077, 1084 (9th Cir. 2011) (“We have . . . held that non-admitted aliens are not entitled to any procedure vis-á-vis their admission or exclusion.” (emphasis added)). Because these decisions relate to the admission or exclusion of aliens, they do not establish that the children in ORR’s custody have no entitlement to additional procedures that limit the agency’s authority to detain them, place them in certain restrictive settings, administer psychotropic medication to them against their will, or block their access to counsel. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 990 n.17 (9th Cir. 2017) (“Although the Supreme Court has described Congress’s power over the ‘policies and rules for exclusion of aliens’ as ‘plenary,’ . . . it is well-established that the Due Process Clause stands as a significant constraint on the manner in which the political branches may exercise their plenary authority.” (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972))). In sum, the Court rejects Defendants’ challenges to Plaintiffs’ procedural due process claims.15

15 Defendants argue for the first time in their reply brief that Plaintiffs fail to adequately “describe what procedures they think the Constitution actually requires.” See Reply re MTD at 18. The Court will not consider this argument because Defendants failed to timely raise it. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).

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Initials of Deputy Clerk KT

Case 2:18-cv-05741-DMG-PLA Document 141 Filed 12/27/18 Page 16 of 28 Page ID #:4522

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 16 of 28

6. Claims Under Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act provides in pertinent part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” See 29 U.S.C. § 794(a). Defendants contend that Plaintiffs’ Section 504 claims should be dismissed because the FAC does not “identify facts that suggest ORR was motivated to take the actions challenged here ‘solely by reason’ of [their] alleged disabilities.” See MTD at 29–30. Once again, Defendants’ assertion is flatly contradicted by the FAC’s allegations.

The FAC avers that ORR placed all but one of the Individual Plaintiffs (i.e., Jamie D.) in Shiloh RTC “due to” their mental health needs. See FAC at ¶¶ 31, 41, 48, 64, 81, 90. In fact, Defendants admit that the agency transfers alien minors to RTCs “in order to treat intensive psychiatric and psychological needs.” See Reply re MTD at 19. Benjamin F.’s experience illustrates the effects of this alleged policy and/or practice. The FAC claims that ORR initially placed Benjamin F. and his brother, Mateo, in the same shelter facility. See FAC at ¶¶ 86, 88. ORR later placed Benjamin F. in Shiloh RTC because of his autism and developmental disabilities. See id. at ¶¶ 87, 90. Shortly after the transfer, Mateo was released from the agency’s custody, but Benjamin remained at Shiloh RTC, presumably because medical personnel had not yet “declare[d] him psychologically sound . . . .” See id. at 91, 93–94. These asseverations plausibly state a claim that ORR has taken action against alien minors “solely by reason of” their disabilities.16

B. Plaintiffs’ Motion for Class Certification

Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), Plaintiffs move to certify five proposed classes that are comprised of all minors in ORR custody pursuant to 6 U.S.C. section 279 and/or 8 U.S.C. section 1232:

16 Defendants also suggest that “merely placing a minor in [an RTC] for children with intensive mental health needs [does not] violate[] the Rehabilitation Act . . . .” See Reply re MTD at 18. Yet, the FAC alleges that children placed in RTCs are denied benefits offered to other undocumented minors in ORR custody. See, e.g., FAC at ¶ 130 (“[C]hildren placed in RTCs suffer the functional equivalent of indefinite civil commitment without due process of law.”). Accordingly, Plaintiffs have adequately pled a violation of the Rehabilitation Act, notwithstanding the fact that Defendants apparently disagree with their factual assertions. See Iqbal, 556 U.S. at 679 (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 17 of 28

1. who are or will be placed in a secure facility, medium-secure facility, or RTC, or [whom ORR has continued to detain] in any such facility for more than thirty days, without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker regarding the grounds for such placement [(i.e., the “step-up class”)];
2. whom ORR is refusing or will refuse to release to parents or other available custodians within thirty days of the proposed custodian’s submitting a complete family reunification packet on the ground that the proposed custodian is or may be unfit [(i.e., the “unfit custodian class”)];
3. who are or will be prescribed or administered one or more psychotropic medications without procedural safeguards, including but not limited to obtaining informed consent or court authorization prior to medicating a child, involving a neutral decisionmaker in the initial determination of whether to prescribe psychotropics to a child in ORR custody, and involving a neutral [decisionmaker] to conduct periodic reviews of those medications as treatment continues [(i.e., the “drug administration class”)];
4. who are natives of non-contiguous countries and to whom ORR is impeding or will impede legal assistance in legal matters or proceedings involving their custody, placement, release, and/or administration of psychotropic drugs [(i.e., the “legal representation class”)]; and
5. who have or will have a behavioral, mental health, intellectual, and/or developmental disability as defined in 29 U.S.C. [section] 705, and who are or will be placed in a secure facility, medium-secure facility, or [RTC] because of such disabilities [(i.e., the “disability class”)].

See Notice of Mot. for Class Cert. at 3–4 [Doc. # 97].

Plaintiffs’ Motion for Class Certification proceeds on the assumption that ORR has in fact adopted and uniformly implemented the policies and/or practices targeted by the proposed classes (e.g., as a matter of policy or practice, ORR places alien minors in secure facilities, medium-secure facilities, and RTCs without affording them notice and an opportunity to be heard before a neutral and detached decisionmaker). See Mot. for Class Cert. at 11–12. Furthermore, the Individual Plaintiffs offer evidence indicating that they have been subjected to such policies and/or practices. See infra Part III.B.2–3. Defendants do not explicitly dispute that these policies and/or practices exist or attempt to controvert evidence suggesting that ORR has implemented them.17 See Opp’n re Mot. for Class Cert. at 5–29. Accordingly, for the purposes

17 Defendants claim that “[n]either the First Amended Complaint nor the Motion to Certify Class identifies a single class member whom ORR has blocked from receiving legal services . . . .” See Opp’n re Mot. for Class

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 18 of 28

of Plaintiffs’ Motion for Class Certification, the Court assumes the existence of the policies and/or practices giving rise to the claims underlying the proposed classes. See Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue.”). With that assumption in mind, the Court will determine whether Plaintiffs have satisfied the prerequisites of Federal Rule of Civil Procedure 23.

1. Rule 23(a)(1): Numerosity

A putative class may be certified only if it “is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The numerosity requirement imposes no absolute limitations; rather, it “requires examination of the specific facts of each case.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 330 (1980). “The Ninth Circuit has not offered a precise numerical standard; other District Courts have, however, enacted presumptions that the numerosity requirement is satisfied by a showing of 25–30 members.” Slaven v. BP Am., Inc., 190 F.R.D. 649, 654 (C.D. Cal. 2000). “In analyzing numerosity ‘a court may make commonsense assumptions and reasonable inferences.’” West v. Cal. Servs. Bureau, 323 F.R.D. 295, 303 (N.D. Cal. 2017) (quoting The Civil Rights Educ. & Enforcement Ctr. v. RLJ Lodging Trust, No. CV 15-0224-YGR, 2016 WL 314400, at *6 (N.D. Cal. 2016)).

ORR’s data shows that in fiscal year 2017, the agency admitted 873 minors to RTCs, secure facilities, or staff-secure facilities.18 See Mot. for Class Cert., Ex. 3 at ¶ 10 (Revised

Cert. at 28. For the reasons discussed infra Part III.B.2–3, the Court concludes that Plaintiffs have advanced sufficient evidence that ORR routinely blocks detained minors from obtaining legal services to challenge the agency’s decisions regarding placement, release, and/or administration of psychotropic medication.

Defendants further claim that Section 1.4.7 of the ORR Guide permits a minor to ask the ORR Director or his designee to reconsider the minor’s transfer to a secure facility or RTC within 30 days after placement, and they note that the TVPRA requires the agency to conduct monthly reviews of the placement of a minor in a secure facility. See Opp’n re Mot. for Class Cert. at 20–21 (citing ORR Guide § 1.4.7; 8 U.S.C. § 1232(c)(2)(A)). Nonetheless, Section 1.4.7 is no longer available in the online version of the ORR Guide, and Defendants have not offered a declaration showing that the provision still exists. ORR Guide, Placement in ORR Care Provider Facilities, https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-1#1.4.7 (last visited Oct. 23, 2018). More importantly, Defendants do not offer evidence that ORR affords minors placed in such facilities with notice of the reasons for the transfer, nor do they contend that the aforementioned procedures call for review by a neutral and detached decisionmaker. See Opp’n re Mot. for Class Cert. at 20–21.

18 ORR previously admitted that staff-secure facilities are “medium-security facilities” under the Flores Agreement. Order re Pls.’ Mot. to Enforce at 9, Flores v. Sessions, No. CV 85-4544-DMG (AGRx) (C.D. Cal. July

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 19 of 28

Sualog Decl.) [Doc. # 97-6]. Since the Court assumes for the purposes of Plaintiffs’ Motion that ORR consistently fails to provide notice and an opportunity to be heard before a neutral and detached decisionmaker in connection with such transfers, the Court concludes that the size of the step-up class is large enough to render joinder impracticable.
Next, Plaintiffs argue that ORR “routinely” delays or denies the release of minors to their proposed custodians on the grounds that they are unsuitable, see Mot. for Class Cert. at 25, an uncontested assertion that is consistent with the evidence discussed infra Part III.B.3. Given that 50,834 minors were admitted into ORR custody in fiscal year 2017 alone, common sense dictates that a sizeable number of minors sought or will seek release to proposed custodians and were or will be subjected to ORR’s purportedly inadequate procedures for contesting the agency’s suitability determinations.
Further, ORR’s data shows that 74 minors were admitted to RTCs in fiscal year 2017. See Mot. for Class Cert., Ex. 3 at ¶ 10 (Revised Sualog Decl.) [Doc. # 97-6]. Because ORR’s statistical reports show that it “administers psychotropic medications to . . . nearly every child . . . it places” in its RTCs, the drug administration class is sufficiently numerous to satisfy Rule 23(a)(1). See Mot. for Class Cert., Ex. 22 at ¶¶ 2–3 (Holguín Decl.) [Doc. # 97-27]; see also Mot. for Class Cert., Ex. 12 at ¶ 12 (Miguel Angel S. Suppl. Decl.) (ORR has confined Miguel Angel S. to Yolo Juvenile Detention Center, where he has been instructed to take medication for depression and anxiety) [Doc. # 105-1]. Defendants admit that alien minors are placed in RTCs if ORR determines that they “require intensive mental health services which cannot be provided on an outpatient basis,” see Opp’n re Mot. for Class Cert. at 20, a concession that signifies that joinder of the members of the disability class would also be impracticable.
Lastly, Plaintiffs accurately note that the legal representation class is comprised of the step-up, unfit custodian, and drug administration classes because ORR has allegedly, as a matter of common practice, discouraged legal services providers from assisting undocumented minors in challenging those decisions. See Mot. for Class Cert. at 26. Thus, it stands to reason that the legal representation class comports with Rule 23(a)(1) as well.
2. Rule 23(a)(2): Commonality
The commonality requirement is satisfied if “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that

30, 2018) [Doc. # 470]. Plaintiffs likewise treat staff-secure facilities as “medium-secure facilities” for the purposes of the definition of the step-up class. See Mot. for Class Cert at 24 (citing Mot. for Class Cert., Ex. 3 at ¶ 10 (Revised Sualog Decl.) [Doc. # 97-6]).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 20 of 28

the class members ‘have suffered the same injury.’” Dukes, 564 U.S. at 349–50 (quoting Gen. Tele. of S.W. v. Falcon, 457 U.S. 147, 157(1982)). In determining that a common question of law exists, it is insufficient to find that all putative class members have suffered a violation of the same provision of law. See id. at 350. Rather, the putative class members’ claims “must depend upon a common contention” that is “of such a nature that it is capable of classwide resolution— which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” See id.
As noted above, Defendants do not dispute that ORR has instituted a policy and/or practice of transferring minors to secure facilities, medium-secure facilities, and RTCs without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker. They also do not contest that ORR consistently fails to provide parents and other proposed custodians with any formal means by which to challenge the agency’s suitability determinations, or that ORR routinely administers psychotropic drugs to minors without first obtaining informed consent or court authorization. They likewise do not challenge Plaintiffs’ assertion that ORR had adopted a policy and/or practice of placing children with actual or perceived behavioral, mental health, intellectual, and/or developmental disabilities in secure facilities, medium-secure facilities, and RTCs. It follows that whether such policies and/or practices violate the Due Process Clause, the Freedom of Association Clause, the TVPRA, and/or the Rehabilitation Act are common questions for all putative members of the step-up class, the unfit custodian class, the drug administration class, and the disability class.19
Defendants nonetheless insist that the step-up, unfit custodian, drug administration, and disability classes do not present common questions because “there is wide variation in the evidence that ORR may rely on in informing its placement, release, and treatment decisions.” See Opp’n re Mot. for Class Cert. at 19. Defendants misapprehend the nature of Plaintiffs’ claims. Plaintiffs seek an injunction barring Defendants from engaging in the aforementioned policies and/or practices in the absence of certain procedural safeguards. See, e.g., FAC at 57– 58. Plaintiffs do not request an order requiring Defendants to transfer particular putative class members to less restrictive settings, release them to proposed custodians, cease medicating them,

19 Defendants point out that Plaintiffs’ Flores claims relating to the administration of psychotropic drugs are governed by the child welfare laws of each state in which a particular putative class member is detained. See Opp’n re Mot. for Class Cert. at 24–25; Order re Pls.’ Mot. to Enforce at 20–24, Flores v. Sessions, No. CV 854544-DMG (AGRx) (C.D. Cal. July 30, 2018) [Doc. # 470]. The parties have not addressed whether the differences in the various applicable state child welfare laws would affect the extent to which Plaintiffs’ due process claims raise common questions. Should that issue arise, the Court may alter or amend its class certification order to further divide the drug administration class into appropriate subclasses. See Fed. R. Civ. P. 23(c)(1)(C). Until then, the Court will not address the issue sua sponte or presume that potential differences in state child welfare laws prevent Plaintiffs’ federal due process claims from presenting common questions of law and fact.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 21 of 28

or stop detaining them in unduly restrictive settings that are allegedly ill-suited for their needs. That the policies and/or procedures concern the agency’s individualized decisions does not change the fact that their legality is a common issue for all proposed class members. Cf. Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“The putative class and subclass members . . . all set forth numerous common contentions whose truth or falsity can be determined in one stroke: whether the specified statewide policies and practices to which they are all subjected by [prison officials] expose them to a substantial risk of harm. . . . That inquiry does not require us to determine the effect of those policies and practices upon any individual class member (or class members) or to undertake any other kind of individualized determination.”).

Plaintiffs also offer evidence indicating that ORR has instructed legal aid programs not to represent minors in connection with ORR’s placement, medication, and release decisions. Specifically, Plaintiffs point to evidence that HHS has contracted with the Vera Institute of Justice for the purposes of providing legal services to undocumented minors. See Mot. for Class Cert, Ex. 5 (HHS’s contracts with Vera) [Doc. ## 97-8, 97-9]. They also offer declarations from attorneys who worked for Vera-funded legal aid programs, wherein they claim that ORR instructed those programs not to challenge ORR’s confinement of alien minors or the conditions thereof. See Mot. for Class Cert., Ex. 6 at ¶¶ 4, 8–9 (Mixon Decl.) (attesting that ORR instructed Mixon not to challenge the agency’s release and placement decisions) [Doc. # 97-10]; Mot. for Class Cert., Ex. 7 at ¶¶ 11, 19 (Williams Decl.) (“[B]oth ORR and Vera Institute informally discourage Vera-funded lawyers from taking legal action against ORR lest they cut off funds entirely for assisting unaccompanied minors. * * * [A]lthough ORR boasts of providing free legal services to detained minors, it hobbles free legal service providers who undertake to represent detained children.”) [Doc. # 97-11]; Mot. for Class Cert., Ex. 8 at ¶¶ 14–24 (Stuart Decl.) (attesting that Vera-funded providers rarely challenge ORR’s detention decisions, and that ORR has instructed such providers not to refer cases to Stuart because she initiated such a challenge) [Doc. # 97-12]. Because there are few free legal services available to minors in ORR custody other than Vera-funded providers, see Mot. for Class Cert., Ex. 6 at ¶¶ 8–10 (Mixon Decl.) [Doc. # 97-10], ORR’s conduct will likely deprive most (if not all) such children of the opportunity to meaningfully challenge the agency’s release, placement, and medication decisions. Thus, whether this policy or practice violates federal law (e.g., the TVPRA) is a common question for nearly all detained children from non-contiguous countries who are placed in restrictive settings, denied release to their proposed custodians, or forced to take psychotropic medications. See FAC at ¶ 144 (asserting that 8 U.S.C. § 1232(c)(5), 6 U.S.C. § 279(b)(1)(A), and certain regulations relating thereto collectively require ORR to provide pro bono counsel to alien minors who are not from contiguous countries). Thus, the Court concludes that each of the five putative classes satisfy the commonality requirement of Rule 23(a)(2).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 22 of 28

3. Rule 23(a)(3): Typicality

Typicality requires a showing that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The purpose of this requirement “is to assure that the interest of the named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Id. (quoting Hanon, 976 F.2d at 508). The typicality standard under Rule 23(a)(3) is “permissive”: “representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)).

First, Plaintiffs have offered evidence showing that Lucas R., Miguel Angel S., Gabriela N., and Jaime D. were placed in a secure facility or an RTC without being given notice of the transfer or an opportunity to be heard before a neutral and detached decisionmaker. See Mot. for Class Cert., Ex. 21 at ¶ 5 (Lucas R. Decl.) (when he was informed of the transfer to Shiloh RTC, the case worker told him that “someone else had already approved the transfer and [he] had to go”) [Doc. # 105-1]; Mot. for Class Cert., Ex. 12 at ¶ 3 (Miguel Angel S. Suppl. Decl.) (he did not receive any written notice of his transfer to Yolo Juvenile Detention Center, and no one told him he could appeal that decision) [Doc. # 105-1]; Mot. for Class Cert., Ex. 14 at ¶¶ 5–6 (Gabriela N. Decl.) (she does not recall being told that she could appeal or challenge ORR’s decision to place her in Shiloh RTC) [Doc. # 105-1]; Mot. for Class Cert., Ex. 20 at ¶¶ 6–8 (Jaime D. Decl.) (same as Miguel Angel S.’s experience) [Doc. # 105-1]. Further, Plaintiffs allege—and Defendants do not dispute—that ORR transferred Sirena P. to Shiloh RTC without notice.20 See Mot. for Class Cert. at 18.

Second, Plaintiffs proffer evidence showing that ORR refused to release Lucas R. and Gabriela N. to their respective proposed custodians without providing notice or an opportunity to be heard regarding their respective custodians’ suitability. See Mot. for Class Cert., Ex. 22 at ¶

20 Plaintiffs assert in their reply brief that Daniela Marisol T. and Benjamin F. should also be representatives of the step-up class. See Reply re Mot. for Class Cert. at 21. The Court is unable to make that determination, however, because Daniela Marisol T.’s declarations provide little detail regarding the circumstances of her transfer to Shiloh RTC, see Mot. for Class Cert., Exs. 10–11 (Daniela Marisol T. Decls.) [Doc. # 105-1], and Plaintiffs have not supplied Benjamin F.’s declaration.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 23 of 28

18 (Madelyn R. Decl.) (an ORR social worker told Madelyn R. that Lucas R. could not be released to her; the social worker said that the decision was final, and did not give Madelyn a written decision or an opportunity to appeal the denial) [Doc. # 105-1]; Mot. for Class Cert., Ex. 18 at ¶ 12 (Isaac N. Decl.) (a social worker at Shiloh RTC told Isaac that ORR “threw out” his sponsorship application for Gabriela N.; ORR never formally informed Isaac N. that it denied his application) [Doc. # 105-1]. The evidence also strongly suggests that ORR continued to detain these two Plaintiffs for more than thirty days after their proposed custodians had submitted information requested by ORR.21 See Mot. for Class Cert., Ex. 22 at ¶¶ 6–7 (Madelyn R. Decl.) [Doc. # 105-1]; Mot. for Class Cert., Ex. 18 at ¶¶ 8–9, 12, 15 (Isaac N. Decl.) [Doc. # 105-1].

Third, the record indicates that ORR has routinely administered psychotropic medications to Lucas R., Gabriela N., Daniela Marisol T., and Miguel Angel S. without obtaining informed consent or court authorization to do so. Mot. for Class Cert., Ex. 21 at ¶ 6 (Lucas R. Decl.) (he takes one pill every day for anxiety; as far as he knows, the staff never asked for his family’s permission before administering the medication) [Doc. # 105-1]; Mot. for Class Cert., Ex. 17 (Gabriela N.’s Medication Information and Reconciliation Form, which shows that she was ordered to take 20 milligrams of fluoxetine every evening) [Doc. # 105-1]; Mot. for Class Cert., Ex. 19 at ¶¶ 9–11 (Isaac N. Suppl. Decl.) (neither he (Gabriela N.’s grandfather) nor Gabriela N.’s mother ever gave written permission for Gabriela N. to receive medication, and Isaac N. did not receive any notice that ORR sought court approval) [Doc. # 105-1]; Mot. for Class Cert., Ex. 11 at ¶ 4 (Daniela Marisol T. Suppl. Decl.) (ORR makes her take three pills a day for anxiety) [Doc. # 105-1]; Opp’n re MTD, Ex. 4 at 13 (Authorization for Medical, Dental, and Mental Health Care Form) (purportedly authorizing a shelter facility to dispense prescription medication to Daniela Marisol T.) [Doc. # 112-4]; Mot. for Class Cert., Ex. 12 at ¶ 3 (Miguel Angel S. Suppl. Decl.) (he takes medication for depression and anxiety) [Doc. # 105-1]; Mot. for Class Cert., Ex. 13 at ¶¶ 17–21 (Gerardo S. Decl.) (ORR never obtained his written consent to administer medication to his son, Miguel Angel S., and Gerardo S. did not receive any notification that ORR sought court approval) [Doc. # 105-1]. Defendants also do not controvert Plaintiffs’ claims that ORR administered psychotropic drugs to Sirena P. and Benjamin F. without their families’ informed consent. See Mot. for Class Cert. at 18–19.

Fourth, as discussed supra in Part II.B.2, Plaintiffs have shown that ORR blocks Verafunded legal service providers from challenging the agency’s custody of unaccompanied minors and the conditions thereof. Defendants counter that “[n]either the First Amended Complaint nor

21 Plaintiffs assert that Daniela Marisol T. should also be named a representative of the unfit custodian class. See Reply re Mot. for Class Cert. at 21. The Court declines to do so at this time, because her declarations do not specify when her proposed custodian submitted the information requested by ORR.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 24 of 28

the Motion to Certify Class identifies a single class member whom ORR has blocked from receiving legal services[.]”22 See Opp’n re Mot. for Class Cert. at 28–29. Nonetheless, ORR’s alleged policy or practice of discouraging such programs from taking any legal action against the agency by its very nature inflicts a systemic injury—i.e., it deprives detained minors of an opportunity to challenge placement, detention, and medication decisions. Whether any of the Individual Plaintiffs were subjectively aware of that fact is beside the point. Further, the claims belonging to Lucas R., Gabriela N., Daniela Marisol T., and Jaime D. are typical of those belonging to the legal assistance class because: (1) they assert the same claims as the step-up class, the unfit custodian class, and/or the drug administration class; and (2) it is undisputed that these four Plaintiffs are from non-contiguous countries.23 See Mot. for Class Cert. at 17–18 (Daniela Marisol T. and Jaime D. are from Honduras) [Doc. # 97-1]; Mot. for Class Cert.. Ex. 21 at ¶ 2 (Lucas R. Decl.) (Lucas R. is from Guatemala) [Doc. # 105-1]; Mot. for Class Cert., Ex. 14 at ¶ 2 (Gabriela N. Decl.) (Gabriela N. is from El Salvador) [Doc. # 105-1].
Lastly, Plaintiffs contend—and Defendants do not dispute—that ORR transferred Lucas R., Gabriela N., Sirena P., and Benjamin F. to Shiloh RTC because of their mental health needs. See Mot. for Class Cert. at 17–19, 21. Defendants also do not contest that ORR placed Miguel Angel S. in Yolo County Juvenile Detention Center and Shiloh RTC because of his mental health needs. See Mot. for Class Cert. at 17–18.
Because the aforementioned proposed class representatives have suffered injuries similar to those sustained by other members of their respective putative classes, the Court finds that Plaintiffs have satisfied Rule 23(a)(3)’s typicality requirement.
4. Rule 23(a)(4) and Rule 23(g): Adequacy
Rule 23(a)(4) permits certification of a class action if “the representative parties will fairly and adequately protect the interests of the class.” Rule 23(a)(4) presents two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on

22 Although Defendants frame this issue as one of adequacy, the Court addresses it in connection with the typicality prong because it concerns whether Plaintiffs suffered an injury similar to that of the other putative class members. See 1 Newberg on Class Actions § 3:32 (5th ed. 2018) (“The typicality prerequisite overlaps with the Rule 23(a)(4) requirement that class representation be adequate . . . .”).
23 The FAC alleges that Benjamin F. is a native and citizen of El Salvador (i.e., a non-contiguous country). See FAC at ¶ 16. Because Plaintiffs did not make that assertion in their Motion for Class Certification or supply a supporting declaration from Benjamin F., that assertion is neither undisputed nor supported by the evidence.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 25 of 28

behalf of the class?” See Hanlon, 150 F.3d at 1020. Similarly, Rule 23(g)(1) requires courts to consider several factors “pertinent to counsel’s ability to fairly and adequately represent the interests of the class[.]”

The Court has already found that the Individual Plaintiffs’ claims are typical of those pertaining to their respective putative classes, see supra Part III.B.3, and there are no apparent conflicts of interest between the Individual Plaintiffs and the absent proposed class members. Defendants nonetheless contend that Lucas R.’s, Sirena P.’s, and Benjamin F.’s claims are moot because ORR released them.24 See Opp’n re Mot. for Class Cert. at 26–27 & n.11. It is unlikely that these Plaintiffs’ claims truly are moot because the Flores Agreement authorizes ORR to reassume custody over them under certain circumstances. See Flores Agreement at ¶ 16; see also Saravia, 280 F. Supp. 3d at 1177–82 (noting that ORR had reassumed custody over three minors the agency initially released).

Even if Defendants have released these Plaintiffs, however, Lucas R., Sirena P., and Benjamin F. may still serve as class representatives. The Ninth Circuit has held that “a named plaintiff’s claim is ‘transitory in nature and may otherwise evade review’” if a defendant employs a “tactic of ‘picking off’ lead plaintiffs to avoid a class action.” See Chen v. Allstate Ins. Co., 819 F.3d 1136, 1143 (9th Cir. 2016) (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011)). Under those circumstances, “the named plaintiff may continue to represent the class until the district court decides the class certification issue.” See id. (quoting Pitts, 653 F.3d at 1092). Here, Defendants did not release any of the Individual Plaintiffs until after the filing of the FAC on September 7, 2018. See De La Cruz Decl. at ¶¶ 2–8 [Doc. # 1231]. Additionally, Defendants did not release three of the named Plaintiffs until after they filed the instant Motion for Class Certification. See id. at ¶¶ 6–8. It follows that Plaintiffs’ claims are inherently transitory and may evade review if the Court countenances Defendants’ transparent attempts to thwart their Motion for Class Certification.25

24 Plaintiffs concede that ORR also released Miguel Angel S. sometime in early to mid-October 2018. See Reply re Mot. for Class Cert. at 20 n.9. Additionally, on the day before the November 2, 2018 hearing on the instant motions, Defendants informed the Court that ORR also released Gabriela N., Daniela Marisol T., and Jaime D. See De La Cruz Decl. at ¶¶ 3, 7–8 [Doc. # 123-1]. Thus, Defendants’ contention regarding mootness applies with equal force to all of their claims as well.

25 Defendants contend that Sirena P.’s and Benjamin F.’s requests for release were “well underway and near complete” when they were joined as Plaintiffs. See Opp’n re Mot. for Class Cert. at 26–27 n.11. The declaration they cite for that proposition, however, does not support it. See De La Cruz Decl. at ¶¶ 2–4 [Doc. # 1221]. Further, the Court is not persuaded by Defendants’ contention that Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), prevents Plaintiffs from relying on the “inherently transitory” claim doctrine. Since Genesis was decided, the Ninth Circuit reaffirmed the proposition that a defendant’s litigation strategy can invoke that exception

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 26 of 28

With regard to the second prong of the Rule 23(a)(4) analysis, Defendants contend in their Opposition that the Individual Plaintiffs are not adequate class representatives because none of them submitted declarations showing that they were willing and able to prosecute this action and make themselves available for depositions, discovery, and trial. See Opp’n re Mot. for Class Cert. at 26. Thereafter, Miguel Angel S. and Gabriela N. submitted declarations to that effect. See Reply re Mot. for Class Cert., Ex. 34 at ¶¶ 1–6 (Miguel Angel S. Suppl. Decl.) [Doc. # 1191]; Reply re Mot. for Class Cert., Ex. 35 at ¶¶ 1–7 (Gabriela N. Suppl. Decl.) [Doc. # 119-2]. Moreover, Plaintiffs counter that Defendants do not “offer any legal authority that [this] objection disqualifies [the other Individual] Plaintiffs from serving as class representatives” and “[i]t would be nonsensical to assume that Plaintiffs . . . have no desire to seek redress for the injuries [ORR allegedly] caused them.” See Reply re Mot. for Class Cert. at 20. The Court agrees with Plaintiffs, and declines Defendants’ invitation to elevate form over substance. The Court thus concludes that all of the Individual Plaintiffs are adequate class representatives with regard to their respective classes as defined below.
Furthermore, the declarations of Plaintiffs’ attorneys reveal that they have undertaken considerable efforts to investigate the claims in this action, they have extensive experience and knowledge regarding complex class litigation brought on behalf of immigrant children, and they have the necessary personnel and resources to prosecute this action to final judgment. See Mot. for Class Cert., Ex. 28 at ¶¶ 1–6 (Cooper Decl.) [Doc. # 97-32]; Mot. for Class Cert., Ex. 29 at ¶¶ 1–5 (Holguín Decl.) [Doc. # 97-33]; Mot. for Class Cert., Ex. 30 at ¶¶ 1–10 (Welch Decl.) [Doc. # 97-34]; Mot. for Class Cert., Ex. 31 at ¶¶ 1–9 (White Decl.) [Doc. # 97-35]; Mot. for Class Cert., Ex. 32 at ¶¶ 1–5 (Wynn Decl.) [Doc. # 97-36]. The Court therefore finds that Plaintiffs’ counsel will fairly and adequately represent the interests of the five proposed classes. See also Opp’n re Mot. for Class Cert. at 26 (“Defendants have no concern that plaintiffs’ counsel will prosecute the action vigorously on behalf of the class[es].”).
5. Rule 23(b)(2): Whether Injunctive or Declaratory Relief Is Appropriate for the Classes
To obtain class certification under Rule 23(b)(2), the movant must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” “The rule does not require [courts] to examine the viability or bases of class members’ claims for declaratory and injunctive relief, but only to look at whether class members seek

to mootness. See Chen, 819 F.3d at 1138 (“Although [the defendant] argues that Pitts is no longer good law after Genesis . . . we rejected that very argument in Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (‘Gomez’), aff’d, 136 S. Ct. 663 (2016). Pitts therefore remains the law of the circuit.”).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 27 of 28

uniform relief from a practice applicable to all of them.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). “‘[I]t is sufficient’ . . . that ‘class members complain of a pattern or practice that is generally applicable to the class as a whole.’” See id. (quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)).

As noted throughout Part III.B, supra, Defendants have largely refrained from disputing Plaintiffs’ assertions that ORR consistently employs the policies and/or practices challenged by the five putative classes, and Plaintiffs’ evidence corroborates their claims that ORR has engaged in such conduct. In addition, Plaintiffs specifically request a declaration that these policies and/or practices are unlawful and an injunction barring Defendants from continuing to implement them. Thus, class certification under Rule 23(b)(2) is appropriate.

IV. CONCLUSION

For the foregoing reasons, the Court issues the following rulings:

1. Defendants’ MTD is GRANTED only insofar as it seeks the dismissal without prejudice of Plaintiffs’ claims to enforce the Flores Agreement, but not insofar as it requests the dismissal of Plaintiffs’ claims that ORR failed to provide sufficient procedural safeguards for alien minors to exercise their Flores rights. The remainder of Defendants’ MTD is DENIED;

2. Defendants shall file an Answer to the FAC by January 9, 2019;

3. Plaintiffs’ Motion for Class Certification is GRANTED. The Court CERTIFIES five classes that are comprised of all minors in ORR custody pursuant to 6 U.S.C. section 279 and/or 8 U.S.C. section 1232:

a. who are or will be placed in a secure facility, medium-secure facility, or RTC, or whom ORR has continued to detain in any such facility for more than 30 days, without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker regarding the grounds for such placement (i.e., the “step-up class”);
b. whom ORR is refusing or will refuse to release to parents or other available custodians within 30 days of the proposed custodian’s submission of a complete family reunification packet on the ground that the proposed custodian is or may be unfit (i.e., the “unfit custodian class”);

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741-DMG (PLAx)

Date December 27, 2018

Title Lucas R., et al. v. Alex Azar, et al.

Page 28 of 28

c. who are or will be prescribed or administered one or more psychotropic medications without procedural safeguards;26
d. who are natives of non-contiguous countries and to whom ORR is impeding or will impede legal assistance in legal matters or proceedings involving their custody, placement, release, and/or administration of psychotropic drugs (i.e., the “legal representation class”); and
e. who have or will have a behavioral, mental health, intellectual, and/or developmental disability as defined in 29 U.S.C. section 705, and who are or will be placed in a secure facility, medium-secure facility, or RTC solely by reason of such disabilities (i.e., the “disability class”);27

4. The Court APPOINTS the following class representatives:

a. Lucas R., Miguel Angel S., Gabriela N., Jaime D., and Sirena P. shall serve as representatives of the step-up class;
b. Lucas R. and Gabriela N. shall serve as representatives of the unfit custodian class; c. Lucas R., Daniela Marisol T., Gabriela N., Miguel Angel S., Sirena P., and Benjamin
F. shall serve as representatives of the drug administration class; d. Lucas R., Gabriela N., Daniela Marisol T., and Jaime D. shall serve as representatives
of the legal representation class; and e. Lucas R., Miguel Angel S., Gabriela N., Sirena P., and Benjamin F. shall serve as
representatives of the disability class; and

5. The Court APPOINTS Carlos R. Holguín of the Center for Human Rights & Constitutional Law; Leecia Welch, Neha Desai, and Poonam Juneja of the National Center for Youth Law; Holly S. Cooper and Carter C. White of the University of California Davis School of Law; and Summer Wynn, Mary Kathryn Kelley, Jon Cieslak, and Megan Donohue of Cooley LLP as class counsel.

IT IS SO ORDERED.

26 This class need not be defined by referring to certain examples of procedures ORR does not offer to detained minors.

27 For the reasons stated in the Court’s Order re Defendants’ Motion for Reconsideration [Doc. # 138], the Court modifies Plaintiffs’ proposed definition for the disability class in order that it is consistent with the Rehabilitation Act standard.

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 Case 2:18-cv-05741-DMG-PLA Document 227 Filed 03/25/20 Page 1 of 6 Page ID #:4993

1 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW
2 CARLOS R. HOLGUÍN (90754) 256 South Occidental Boulevard
3 Los Angeles, CA 90057 Telephone: (213) 388-8693
4 Email: crholguin@centerforhumanrights.org

5 Attorneys for Plaintiffs

6 Additional counsel listed on following page and signature blocks
7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 LUCAS R., et al.,

Case No. 2:18-CV-05741 DMG PLA

13

Plaintiffs,

14

v.

15 ALEX AZAR, et al.,

EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

16

Defendants.

17

Hearing: None Set

Judge: Hon. Dolly M. Gee

18

19

20

21

22

23

24

25

26

27

28
EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227 Filed 03/25/20 Page 2 of 6 Page ID #:4994

1 UNIVERSITY OF CALIFORNIA DAVIS SCHOOL OF LAW

HOLLY S. COOPER (197626)

2 Co-Director, Immigration Law Clinic

CARTER C. WHITE (164149)

3 Director, Civil Rights Clinic

One Shields Ave. TB 30

4 Davis, CA 95616

Telephone: (530) 754-4833

5 Email: hscooper@ucdavis.edu

ccwhite@ucdavis.edu

6

NATIONAL CENTER FOR YOUTH LAW

7 LEECIA WELCH (208741)

NEHA DESAI (CAL. RLSA NO. 803161)

8 POONAM JUNEJA (300848)

FREYA PITTS (295878)

9 1212 Broadway, Suite 600

Oakland, CA 94612

10 Telephone: (510) 835-8098

Email: lwelch@youthlaw.org

11

ndesai@youthlaw.org

pjuneja@youthlaw.org

12

fpitts@youthlaw.org

13 NATIONAL CENTER FOR YOUTH LAW

BRENDA L. SHUM (OR. BAR NO. 961146), admitted pro hac vice

14 CRYSTAL ADAMS (308638)

1313 L St. NW, Suite 130

15 Washington, DC 20005

Telephone: (202) 868-4785

16 Email: bshum@youthlaw.org

cadams@youthlaw.org

17

COOLEY LLP

18 SUMMER J. WYNN (240005)

MARY KATHRYN KELLEY (170259)

19 4401 Eastgate Mall

San Diego, CA 92121

20 Telephone: (858) 550-6000

Facsimile: (858) 550-6420

21 Email: swynn@cooley.com

mkkelley@cooley.com

22

mdonohue@cooley.com

23 COOLEY LLP

REBECCA L. TARNEJA (293461)

24 ALEXANDRA R. MAYHUGH (300446)

1333 2nd Street, Suite 400

25 Santa Monica, CA 90401

Telephone: (310) 883-6400

26 Facsimile: (310) 883-6500

Email: rtarneja@cooley.com

27

amayhugh@cooley.com

28 Attorneys for Plaintiffs

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227 Filed 03/25/20 Page 3 of 6 Page ID #:4995

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. 65 and Local Rule 7-

3 19, Plaintiffs in the above-captioned matter, hereby apply ex parte to this Court for a

4 temporary restraining order (“TRO”) and for issuance of an order to show cause why a

5 preliminary injunction should not issue. This ex parte application is based upon this

6 Application, the accompanying Memorandum of Points and Authorities, the

7 concurrently-filed Declaration of Class Counsel Carlos Holguín and all exhibits thereto,

8 all papers on file in this action, and any oral argument of counsel the Court may hear.

9 The Memorandum of Points and Authorities in support of this Application is filed

10 herewith.

11

The Plaintiffs bring this application on an ex parte basis because, as described in

12 the Motion attached, by continuing to house Class Members in congregate care facilities

13 in the face of the COVID-19 pandemic and public health national emergency,

14 Defendants Alex Azar, Secretary of U.S. Department of Health and Human Services,

15 and E. Scott Lloyd, Director, Office of Refugee Resettlement of the U.S. Department

16 of Health and Human Services (“ORR”), violate (i) the TVPRA, 8 U.S.C. §

17 1232(c)(2)(A),1 (ii) the January 17, 1997 Settlement Agreement in Flores v. Reno et al.,

18 CV 85-4544 (RJK) (Px), and (iii) the Due Process Clause of the Fifth Amendment. As

19 a result, Class Members (and the public) face grave risk to their health and lives that is

20 in need of immediate attention in order to avoid further loss of life. Plaintiffs

21 respectfully submit that ex parte relief is therefore appropriate given that the facts in the

22 Motion and its supporting papers evidence that immediate and irreparable injury will

23 result to Plaintiffs before opposition can be heard.

24

Statement of Compliance with Rule with Civil Local Rule 7-19

25

Counsel for Defendants are:

26

Andrew Brenner Insenga Ernesto Molina

27

28

1 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044, codified at 8 U.S.C. § 1232 (“TVPRA”).

1

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227 Filed 03/25/20 Page 4 of 6 Page ID #:4996

1

Jonathan Kevin Ross

2

Woei-Tyng Daniel Shieh

Yamileth G. Davila

3

US Department of Justice

4

Civil Division Office of Immigration

Litigation

5

P O Box 878

6

Washington, DC 20044

7

202-305-7816 Fax: 202-307-8781

8

Email: andrew.insenga@usdoj.gov

9

Ernesto.h.molina@usdoj.gov Jonathan.k.ross@usdoj.gov

10

Daniel.Shieh@usdoj.gov

11

yamileth.g.davila@usdoj.gov

12

Benjamin M. Moss Jeffrey S. Robins

13

US Department of Justice

14

Office of Immigration Litigation - Civil Division

15

PO Box 868 Ben Franklin Station

16

Washington, DC 20044-0878 202-307-8675

17

Fax: 202-307-8698

18

Email: benjamin.m.moss2@usdoj.gov

jeffrey.robins@usdoj.gov

19

20

Marina C. Stevenson US Department of Justice

21

Office of Immigration Litigation -

22

Appellate Section Benjamin Franklin Station

23

PO Box 878

24

Washington, DC 20044 202-305-3797

25

Fax: 202-307-8781

26

Email: marina.c.stevenson@usdoj.gov

27

Sherry Denise Soanes United States Department of Justice

28

Office of Immigration Litigation

2

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227 Filed 03/25/20 Page 5 of 6 Page ID #:4997

1

PO Box 868 Ben Franklin Station

2

Washington, DC 20044

202-532-4108

3

Fax: 202-616-8962

4

Email: sherry.soanes@usdoj.gov

5

Pursuant to Civil Local Rule 7-19.1 and Fed. R. Civ. P. 65, counsel for the

6 Plaintiffs informed counsel for Defendants of the substance and date of this ex parte

7 application. (Holguín Decl. ¶ 5.) On March 22, 2020, Plaintiff sent a letter to counsel

8 for Defendants outlining the grave risk posed to Class Members by continuing to house

9 them in congregate care as well as the relief Plaintiff intended to request through an

10 application for a TRO. (Id.) On March 23, 2020, the parties met and conferred

11 telephonically. (Id.) Counsel for Defendants informed Plaintiffs that Defendants would

12 oppose the application for a TRO. (Id.) To date, Defendants have not taken any action

13 to expedite resolution of this dispute which is endangering the health and lives of

14 children at ORR facilities. (Id.)

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227 Filed 03/25/20 Page 6 of 6 Page ID #:4998

1 Dated: March 25, 2019 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CARLOS R. HOLGUIN Center for Human Rights & Constitutional Law HOLLY S. COOPER CARTER C. WHITE University of Calipfornia Davis School of Law LEECIA WELCH BRENDA SHUM NEHA DESAI POONAM JUNEJA FREYA PITTS CRYSTAL ADAMS National Center for Youth Law SUMMER J. WYNN MARY KATHRYN KELLEY REBECCA L. TARNEJA (293461) ALEXANDRA R. MAYHUGH (300446) Cooley LLP By: s/ Carlos R. Holguin
Carlos R. Holguin (90754) s/ Leecia Welch Leecia Welch (208741)

4

EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

CASE NO. 2:18-CV-05741 DMG PLA

 
 Case 2:18-cv-05741-DMG-PLA Document 227-1 Filed 03/25/20 Page 1 of 33 Page ID #:4999

1 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW
2 CARLOS R. HOLGUÍN (90754) 256 South Occidental Boulevard
3 Los Angeles, CA 90057 Telephone: (213) 388-8693
4 Email: crholguin@centerforhumanrights.org

5 Attorneys for Plaintiffs

6 Additional counsel listed on following page and signature blocks
7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 LUCAS R., et al.,

Case No. 2:18-CV-05741 DMG PLA

13

Plaintiffs,

14

v.

15 ALEX AZAR, et al.,

16

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

17

Hearing: None Set

18

Judge: Hon. Dolly M. Gee

19

20

21

22

23

24

25

26

27

28
MEMO. OF PS & AS ISO EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227-1 Filed 03/25/20 Page 2 of 33 Page ID #:5000

1 UNIVERSITY OF CALIFORNIA DAVIS SCHOOL OF LAW

HOLLY S. COOPER (197626)

2 Co-Director, Immigration Law Clinic

CARTER C. WHITE (164149)

3 Director, Civil Rights Clinic

One Shields Ave. TB 30

4 Davis, CA 95616

Telephone: (530) 754-4833

5 Email: hscooper@ucdavis.edu

ccwhite@ucdavis.edu

6

NATIONAL CENTER FOR YOUTH LAW

7 LEECIA WELCH (208741)

NEHA DESAI (CAL. RLSA NO. 803161)

8 POONAM JUNEJA (300848)

FREYA PITTS (295878)

9 1212 Broadway, Suite 600

Oakland, CA 94612

10 Telephone: (510) 835-8098

Email: lwelch@youthlaw.org

11

ndesai@youthlaw.org

pjuneja@youthlaw.org

12

fpitts@youthlaw.org

13 NATIONAL CENTER FOR YOUTH LAW

BRENDA SHUM (OR. BAR NO. 961146), admitted pro hac vice

14 CRYSTAL ADAMS (308638)

1313 L St. NW, Suite 130

15 Washington, DC 20005

Telephone: (202) 868-4785

16 Email: bshum@youthlaw.org

cadams@youthlaw.org

17

COOLEY LLP

18 SUMMER J. WYNN (240005)

MARY KATHRYN KELLEY (170259)

19 4401 Eastgate Mall

San Diego, CA 92121

20 Telephone: (858) 550-6000

Facsimile: (858) 550-6420

21 Email: swynn@cooley.com

mkkelley@cooley.com

22

mdonohue@cooley.com

23 COOLEY LLP

REBECCA L. TARNEJA (293461)

24 ALEXANDRA R. MAYHUGH (300446)

1333 2nd Street, Suite 400

25 Santa Monica, CA 90401

Telephone: (310) 883-6400

26 Facsimile: (310) 883-6500

Email: rtarneja@cooley.com

27

amayhugh@cooley.com

28 Attorneys for Plaintiffs

MEMO. OF PS & AS ISO EX PARTE APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227-1 Filed 03/25/20 Page 3 of 33 Page ID #:5001

1

TABLE OF CONTENTS

2 Page
3

4 I. 5 II.
6
7

INTRODUCTION ............................................................................................... 1 STATEMENT OF FACTS.................................................................................. 2 A. The COVID-19 Global Pandemic Demands Extraordinary
Measures Be Taken to Protect Class Members......................................... 2 B. Class Members Residing in Congregate Settings Are at Grave Risk
of Contracting COVID-19. ....................................................................... 3

8

1. Pandemic risks in congregate settings are dire. .............................. 3

9

2. The conditions at ORR facilities increase the pandemic risks. ................................................................................................ 4

10

3. The pandemic risks to detained children are particularly grave................................................................................................ 6

11

C. ORR’s Recently Adopted Safety Measures for Congregate Care

12

Facilities Fail to Protect Class Members from COVID-19....................... 7 1. ORR’s COVID-19 Guidelines Do Not Comply with CDC

13

and Epidemiological Mandates Regarding Vital Safety Measures. ........................................................................................ 7

14

2. ORR’s COVID-19 Guidelines Fall Far Below Federal, State,

15

III.

and Local Mandates to Reduce the Spread of COVID-19. .......... 10 STANDARDS FOR ISSUANCE OF TEMPORARY RESTRAINING

16

ORDER.............................................................................................................. 12

17

IV.

CLASS MEMBERS WILL SUCCEED ON THE MERITS ............................ 12 A. ORR Violates The TVPRA By Continuing To Detain Children

18

With Viable Sponsors In Congregate Settings........................................ 13

19

B. ORR Violates The Flores Settlement By Refusing To Release Children To Available Custodians, And Instead Forcing Them To

20

Remain In Unsafe Or Unsanitary Conditions. ........................................ 17 C. ORR Violates the Due Process Clause Of The Fifth Amendment

21

By Exposing Vulnerable Children To Clearly Dangerous Conditions. .............................................................................................. 18

22

1. ORR has an affirmative duty to guarantee Class Members’

23

reasonable health and safety. ........................................................ 18 2. ORR’s failure to release Class Members expeditiously and

24

ensure adequate safety measures in the midst of a pandemic violates their substantive due process rights................................. 19

25

3. ORR’s failure to release Class Members expeditiously in the

26

midst of a life-threatening pandemic clearly violates their procedural due process rights. ...................................................... 20

27

28

MEMO. OF PS & AS ISO EX PARTE APPLICATION

i

FOR TRO AND OSC RE: PRELIMINARY INJUNCTION

CASE NO. 2:18-CV-05741 DMG PLA

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1

TABLE OF CONTENTS

2

(continued)

Page

3

4 V. 5

ABSENT A TEMPORARY RESTRAINING ORDER, CLASS MEMBERS IN CONGREGATE FACILITIES WILL SUFFER IRREPARABLE INJURY. ............................................................................... 22

6

VI. THE BALANCE OF EQUITIES FAVORS INJUNCTIVE RELIEF .............. 23 VII. CONCLUSION ................................................................................................. 25

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMO. OF PS & AS ISO EX PARTE APPLICATION

ii

FOR TRO AND OSC RE: PRELIMINARY INJUNCTION CASE NO. 2:18-CV-05741 DMG PLA

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1

TABLE OF AUTHORITIES

2 Page(s)
3

4 Cases

5 All. for the Wild Rockies v. Cottrell,

6

632 F.3d 1127 (9th Cir. 2011) ................................................................10, 12, 13

7 Amoco Prod. Co. v. Vill. of Gambell,

8

480 U.S. 531 (1987)............................................................................................ 24

9 Arc of Cal. v. Douglas,

10

757 F.3d 975 (9th Cir. 2014) ..................................................................12, 13, 24

11

Cal. v. Azar, 911 F.3d 558 (9th Cir. 2018) .............................................................................. 24

12

13

Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) .............................................................................. 22

14 City of Sacramento v. Lewis,

15

523 U.S. 833 (1998)............................................................................................ 18

16 DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

17

489 U.S. 189 (1989)............................................................................................ 18

18 Edmo v. Corizon, Inc.,

19

935 F.3d 757 (9th Cir. 2019) .............................................................................. 23

20 Flores v. Barr,

21

No. 2:85-cv-04544-DMG-AGR, ECF No. 470 (July 30, 2018) ........................ 15

22 Flores v. Sessions, 862 F.3d at 871 ............................................................................................passim
23

24

Harris v. Bd. of Supervisors, Los Angeles Cty., 366 F.3d 754 (9th Cir. 2004) ........................................................................ 22, 23

25

Helling v. McKinney,

26

509 U.S. 25 (1993)..............................................................................................19

27

28

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1

TABLE OF AUTHORITIES

2

(continued)

Page(s)

3

4

Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012) .............................................................................. 18

5 Jones v. Blanas,

6

393 F.3d 918 (9th Cir. 2004) .............................................................................. 19

7 Jones v. Tex. Dep’t. of Crim. Justice,

8

880 F.3d 756 (5th Cir. 2018) .............................................................................. 23

9 Lopez v. Heckler,

10

713 F.2d 1432 (9th Cir. 1983) ............................................................................ 24

11 Mathews v. Eldridge,

12

424 U.S. 319 (1976)............................................................................................ 13

13

McNearney v. Wash. Dep’t of Corr., No. 11-cv-5930 RBL/KLS, 2012 WL 3545267 (W.D. Wash. June 15,

14

2012) ................................................................................................................... 24

15 Morrissey v. Brewer,

16

408 U.S. 471 (1972)............................................................................................ 21

17 Ms. L. v. ICE,

18

310 F. Supp. 3d 1133 (S.D. Cal. 2018) .............................................................. 24

19 N.D. ex rel. parents acting as guardians ad litem v. Haw. Dep’t of Educ.,

20

600 F.3d 1104 (9th Cir. 2010) ............................................................................ 24

21

Nken v. Holder, 556 U.S. 418 (2009)............................................................................................ 23

22

23

Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015)................................................................24

24

Portman v. Cnty. of Santa Clara,

25

995 F.2d 898 (9th Cir. 1993) .............................................................................. 20

26 Reno v. Flores,

27

507 U.S. 292 (1993)...................................................................................... 20, 21

28

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TABLE OF AUTHORITIES

2

(continued)

Page(s)

3

4

In re Request to Commute or Suspend Cnty. Jail Sentences, N.J. ECF No. 084230 (Mar. 22, 2020) ............................................................... 12

5 Rodriguez v. Robbins,

6

715 F.3d 1127 (9th Cir. 2013) ............................................................................ 24

7 Rosenbaum v. Washoe Cty.,

8

663 F.3d 1071 (9th Cir. 2011) ............................................................................ 21

9 Small v. Avanti Health Sys., LLC,

10

661 F.3d 1180 (9th Cir. 2011) ............................................................................ 24

11 Spark Indus., LLC v. Kretek Int’l, Inc.,

12

No. CV 14-5726-GW(ASX), 2014 WL 12600262 (C.D. Cal. July 29, 2014) ................................................................................................................... 22

13 Stanley v. Ill.,

14

405 U.S. 645 (1972)............................................................................................ 21

15 Stanley v. Univ. of S. Cal.,

16

13 F.3d 1313 (9th Cir. 1994) .............................................................................. 23

17 Unknown Parties v. Johnson,

18

No. CV-15-00250-TUC-DCB, 2016 WL 8188563 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017)...............19, 22

19

20

Wang v. Reno, 81 F.3d 808 (9th Cir. 1996) ................................................................................ 18

21 Washington v. Trump,

22

847 F.3d 1151 (9th Cir. 2017) ............................................................................ 12

23 Winter v. Nat’l Res. Def. Council, Inc.,

24

555 U.S. 7 (2008)..........................................................................................12, 13

25 Xochihua-Jaimes v. Barr,

26

18-cv-71460, ECF No. 53 (Mar. 23, 2020) ........................................................ 19

27

28

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TABLE OF AUTHORITIES

2

(continued)

Page(s)

3

4

Zadvydas v. Davis, 533 U.S. 678 (2001)...................................................................................... 19, 20

5 Statutes

6

7

8 U.S.C. § 1232(c)(2)(A)...................................................................................................13

8

§ 1232(c)(3)(A)...................................................................................................14

9

§ 1232(c)(3)(B) ................................................................................................... 15

10 Other Authorities

11 Federal Rule of Civil Procedure 65 ......................................................................... 12

12 U.S. Constitution

13

First Amendment ................................................................................................ 13 Fifth Amendment.........................................................................................passim

14

Eighth Amendment ............................................................................................. 19

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Plaintiffs request a temporary order protecting children whom the Office of

3 Refugee Resettlement (“ORR”) has placed in congregate detention from the clear and

4 present danger the COVID-19 pandemic poses to their health and well-being. While

5 medical experts unanimously demand that we all practice physical distancing, avoid

6 groups of ten or more, and self-isolate, such precautions are all but impossible for

7 children in congregate settings, who are therefore at unacceptable risk.

8

Last Sunday, CNN reported that a 12-year-old child with no preexisting health

9 conditions and no known contact with an infected person was diagnosed with

10 pneumonia, tested positive for coronavirus, and was on a ventilator fighting for her life.1

11 As her cousin observed, “Everyone keeps saying ‘it doesn’t impact younger people.’

12 But here’s a 12-year-old fighting for her life. People need to practice social distancing.

13 People need to take care of their children.”2

14

The spread of COVID-19 into ORR facilities is not hypothetical: It has infiltrated

15 ORR’s MercyFirst and Abbott House congregate facilities in New York,3 and an ICE

16 immigration detainee has tested positive for COVID-19.4 Children in ORR’s custody

17 will be placed in life-threatening danger when – not if – the contagion spreads through

18 ORR’s congregate facilities.

19

ORR has immediate legal duties under the TVPRA, Flores Settlement, and Fifth

20 Amendment to the Constitution to avoid detaining children in congregate settings as

21 much as possible. The obvious ways of doing so are (1) expediting children’s release to

22 waiting family whenever it is safe to do so, and (2) transferring as many children as

23

24

1 See Amara Walker, et al., 12-year-old girl with coronavirus is on a ventilator and fighting for her life, CNN (Mar. 22, 2020, 11:35 AM), https://cnn.it/39mU77W.

25 2 Id. (emphasis added).

26

3 See H. Aleaziz, A Staff Member at a Facility Housing Unaccompanied Immigrant Children Has Tested Positive for the Coronavirus, BUZZFEED NEWS (Mar. 19, 2020),

27 https://bit.ly/39fRPYa.

28

4 Priscilla Alvarez & Catherine E. Shoichet, First ICE detainee tests positive for coronavirus, CNN, https://cnn.it/39aEyju (last updated Mar. 24, 2020).

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1 possible who must remain in ORR custody to non-congregate settings. A growing

2 number of jails and prisons are taking analogous steps to reduce their populations; ORR

3 has no excuse for failing to follow suit.

4

Presently before the Court, inter alia, are the rights of all children in ORR custody

5 whom the agency “is refusing or will refuse to release to parents or other available

6 custodians within 30 days of the proposed custodian’s submission of a complete family

7 reunification packet on the ground that the proposed custodian is or may be unfit (i.e.,

8 the ‘unfit custodian class’).” (Amended Order re Defendants’ Motion to Dismiss and

9 Plaintiffs’ Motion for Class Certification, Dec. 27, 2018 (ECF No. 141) at 27.)

10

Under the current circumstances, an order requiring ORR to release children it

11 has already detained for 30 days to ready custodians, transfer them to non-congregate

12 settings, or else justify why it has done neither, is both reasonable and necessary to

13 protect the rights of the nearly 1,200 children who are members of this certified class.

14 As a collateral benefit, should ORR place a significant number of currently detained

15 children with their families, those remaining in detention will have both more ability to

16 practice social distancing and more medical resources available to them if they fall ill,

17 increasing their chance of protecting themselves against the current pandemic.

18 II. STATEMENT OF FACTS

19

A. The COVID-19 Global Pandemic Demands Extraordinary Measures

20

Be Taken to Protect Class Members.

COVID-19 is a deadly and highly infectious disease that has evolved into a global

21

pandemic and spread to all 50 states in the U.S. (Ex. B (Declaration of Dr. Julie DeAun

22

Graves ¶ 6 (“Graves Decl.”)); Ex. C (Declaration of Dr. Jaimie Meyer ¶ 20 (“Meyer

23

Decl.”))).5 The disease spreads through respiratory droplets and can be transmitted

24

through person-to-person contact – including contact with asymptomatic individuals –

25

and through contact with inanimate surfaces. (Meyer Decl. ¶ 20.; Graves Decl. ¶ 11.)

26

27

28

5 Declarations are submitted as exhibits to the concurrently filed Declaration of Carlos Holguín (“Holguín Decl.”).

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1

As of March 24, 2020, the U.S. Centers for Disease Control and Prevention

2 (“CDC”) reported 46,481 cases in the U.S. and 593 deaths. (Graves Decl. ¶ 6.)6 Given

3 the severe shortage of COVID-19 tests, these numbers underestimate the true spread of

4 the disease. (Id. ¶ 7.) Unfortunately, this pandemic has already reached the ORR system,

5 with several staff members at ORR facilities testing positive for COVID-19.7

6

B. Class Members Residing in Congregate Settings Are at Grave Risk of

7

Contracting COVID-19.

The vast majority of children in ORR custody live in congregate settings, where

8 they spend all of their time in close proximity to other children and staff members.8 The

9 CDC has warned that detained individuals who “live, work, eat, study, and recreate

10 within congregate environments” are at heightened risk of contracting COVID-19.9

11

1. Pandemic risks in congregate settings are dire.

12

There is no cure or vaccine for this highly contagious virus. (Graves Decl. ¶ 8.)

13 The only way to avoid transmission of COVID-19 is for individuals to practice “social

14 distancing” (maintaining a distance of at least six feet from the nearest person) and

15 frequent hand washing. (Id.; Ex. E (Declaration of Dr. Nancy Y. Wang ¶ 12 (“Wang

16 Decl.”))). For this reason, the CDC deems social distancing a “cornerstone of reducing

17 transmission of respiratory diseases such as COVID-19.”10

18

19

20 6 For updated statistics, see Coronavirus COVID-19 Global Cases, Ctr. Systems

21

Science & Engineering, Johns Hopkins Univ.,

(JHU),

http://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b4

22

8e9ecf6. 7 Camilo Montoya-Galvez, 3 workers at facilities housing migrant kids in U.S. custody

23 test positive for coronavirus, CBS NEWS (Mar. 23, 2020), https://cbsn.ws/39hlkbY.

24

8 See ORR, Children Entering the United States Unaccompanied: Guide to Terms, HHS (Mar. 21, 2016), https://bit.ly/3alIaR2; see also Amra Uzicanin & Joanna Gaines, Field

25 Epidemiology Manual: Community Congregate Settings, CDC, https://bit.ly/3drRgO9

26

(last reviewed Dec. 13, 2018) (“congregate settings” includes “detention facilities”). 9 Interim Guidance on Mgmt of Coronavirus Disease 2019 (COVID-19) in Correctional

27 and Detention Facilities, CDC, https://bit.ly/3aiq8za (last updated Mar. 23, 2020) (Ex.

28

L.) 10 Id.

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1

The rapid transmission of COVID-19 in congregate settings is clearly evidenced

2 by the tragic spread of the virus within cruise ships, nursing homes, and prisons

3 worldwide. Over 800 people tested positive for COVID-19 on cruise ships in Japan and

4 off the coast of California.11 At a nursing home facility in Washington, two-thirds of

5 the residents and 47 staff tested positive for COVID-19, with 35 people ultimately dying

6 from the virus.12 On March 21, 2020, Mayor de Blasio announced that at least 21

7 inmates and 17 employees at the Rikers Island Correctional Center tested positive for

8 COVID-19, a drastic increase from the first case identified just three days earlier.13 For

9 this reason, correctional public health experts recommend the release of those most

10 vulnerable to COVID-19. (Ex. D (Letter to Congress at 6) (“Finally, regarding the need

11 to implement immediate social distancing to reduce the likelihood of exposure to

12 detainees, facility personnel, and the general public, it is essential to consider releasing

13 all detainees who do not pose an immediate risk to public safety.”).)

14

Reducing the number of individuals in congregate care protects the safety of

15 those individuals as well as the communities around them. An outbreak of COVID-19

16 in a congregate environment could quickly overwhelm local health care services and

17 cause individuals to be transported to more distant hospitals and clinics, utilizing more

18 resources and potentially exposing health care workers in communities where the

19 disease is not yet prevalent. (Graves Decl. ¶ 31; Ex. D (Letter to Congress at 4).)

20

2. The conditions at ORR facilities increase the pandemic risks.

21

The communal living that defines congregate care renders it nearly impossible

22 for detained individuals, including children in ORR facilities, to engage in practices –

23

24

11 Victoria Forster, What Have Scientists Learned About COVID-19 and Coronavirus By Using Cruise Ship Data?, FORBES, (Mar. 22, 2020) https://bit.ly/2UeSgNS.

25 12 Jack Healy & Serge F. Kovaleski, The Coronavirus’s Rampage Through a Suburban

26

Nursing Home, N.Y. TIMES (Mar. 21, 2020), https://nyti.ms/2QIcVaS; see also John Balance, et al., Louisiana identifies new cluster of coronavirus cases in Donaldsonville

27 retirement home, THE ADVOCATE, (Mar. 23, 2020), https://bit.ly/39hxQZ9.

28

13 21 Inmates, 17 Employees Test Positive for COVID-19 on Rikers Island, NBC NEW YORK, https://bit.ly/2y1J6eZ (last updated Mar. 22, 2020).

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1 such as social distancing and increased hygiene – necessary to mitigate the risk of

2 COVID-19 transmission. (Wang Decl. ¶ 16, Graves Decl. ¶¶ 10-11; Ex. D (Letter to

3 Congress at 4).) The majority of children in ORR shelters, group homes, residential

4 treatment centers, staff-secure facilities, and secure facilities live in close quarters, share

5 multiple communal spaces, and cannot consistently maintain the minimum six foot

6 distance from others. (Graves Decl. ¶¶ 10-11; Wang Decl. ¶ 16; Ex. F (Declaration of

7 Anthony Enriquez ¶¶ 11, 21, 29 (“Enriquez Decl.”)); Ex. G (Declaration of Hannah P.

8 Flamm ¶ 12 (“Flamm Decl.”))).

9

ORR facilities often house multiple children in single rooms, with some sleeping

10 in bunk beds placed close together. (Enriquez Decl. ¶¶ 12, 22, 30; Flamm Decl. ¶¶ 13,

11 25.) Children are required to participate in group activities and classes where they share

12 space with others in a confined area. (Enriquez Decl. ¶¶ 7, 18; Flamm Decl. ¶¶ 8-9, 22-

13 23; Ex. H (Declaration of Rachel Rutter ¶¶ 5-6, 26 (“Rutter Decl.”))). Children share

14 school materials, telephones, televisions, dining tables, and other equipment with other

15 children. (Enriquez Decl. ¶¶ 7, 18, 26; Flamm Decl. ¶¶ 6, 20; Rutter Decl. ¶¶ 4-6, 11.)

16 Children also eat their meals in communal areas, in close proximity to other children

17 and staff, which creates a dangerous situation for the spread of COVID-19. (Enriquez

18 Decl. ¶¶ 13, 23, 31; Flamm Decl. ¶¶ 15, 27; Rutter Decl. ¶¶ 14-15; Graves Decl. ¶ 10.)

19

In addition, toilets, sinks, and showers are shared and regularly used by large

20 numbers of children. (Flamm Decl. ¶ 14; Rutter Decl. ¶¶ 12-13, 16.) Some facilities

21 require children to ask permission to use the bathroom and require staff to accompany

22 children to the bathroom. (Flamm Decl. ¶¶ 14, 26.)

23

Like other detention centers, ORR facilities are accessible to staff and other

24 outside visitors who may transmit the virus. (Meyer Decl. ¶ 8; Graves Decl. ¶¶ 10, 23;

25 Wang Decl. ¶ 17.) The CDC has warned that “[t]here are many opportunities for

26 COVID-19 to be introduced into a correctional or detention facility, including daily

27 staff ingress and egress; transfer of incarcerated/detained persons between facilities and

28 systems, to court appearances, and to outside medical visits; and visits from family,

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1 legal representatives, and other community members.”14 Program staff – including case

2 managers, teachers, youth care workers, medical providers, and clinicians – enter and

3 leave these facilities in shifts and interact closely with the children. (Enriquez Decl. ¶¶

4 8-10, 19-20, 27-28, 33; Flamm Decl. ¶¶ 7, 11, 21; Rutter Decl. ¶ 25.) To date, staff at

5 two ORR facilities have tested positive for COVID-19 – Abbott House in Irvington,

6 New York, and Mercy First in Syosset, New York.15 It has also recently been reported

7 that an ICE detainee tested positive for COVID-19.16

8

3. The pandemic risks to detained children are particularly grave.

9

Children in ORR custody are at risk of serious illness if they contract COVID-

10 19, and often face particular vulnerabilities to the virus. Severe illness and death from

11 COVID-19 have been reported in people of all ages, including children. (Graves Decl.

12 ¶ 7; Wang Decl. ¶ 9.) Even children without identifiable risk factors can become

13 seriously ill from COVID-19.17 The largest study of pediatric COVID-19 patients to

14 date shows that approximately 6% of infected children and 11% of infected infants had

15 severe or critical cases. These cases included children and infants who suffered from

16 respiratory failure, shock, encephalopathy, heart failure, coagulation dysfunction, acute

17 kidney injury, and life-threatening organ dysfunction.18 Tragically, California reported

18 its first death of a minor linked to COVID-19 on March 24, 2020.19

19

20 14 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

21

Correctional and Detention Facilities (Ex. L.) 15 Mazin Sidahmed, Another Worker in a New York Shelter for Migrant Children has

22 Tested Positive for COVID-19, DOCUMENTED (Mar. 20, 2020), https://bit.ly/33Hs8yx;

23

Brooklyn Count Soars, as Coronavirus Cases in N.Y.C. Near 4,000, N.Y. TIMES, https://nyti.ms/2J9GxtR (last updated Mar. 20, 2020).

24 16 Priscilla Alvarez and Catherine E. Shoichet, supra note 4.

25

17 See Amara Walker, et al., supra note 1; Panama: 13-year-old girl with coronavirus dies, officials say, AL JAZEERA (Mar. 23, 2020), https://bit.ly/2wzvvvb.

26 18 See Yuanyuan Dong, et al., Epidemiological characteristics of 2143 pediatric

27

patients with 2019 coronavirus disease in China, PEDIATRICS, https://bit.ly/39hz1Yz (lasted visited Mar. 24, 2020).

28

19 See Jenny Gross and Tim Arrango, Teenager’s death in California is linked to

Coronovirus,

N.Y.

TIMES

(Mar.

24,

2020),

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1

Moreover, many children in ORR custody have experienced intense trauma in

2 their home countries and on their journey to the United States that may be exacerbated

3 by the stress and uncertainty of detention.20 Post-traumatic stress disorder and related

4 conditions are associated with weakened immune systems and a heightened

5 susceptibility to infection. (Graves Decl. ¶ 12; see generally Ex. I (Declaration of Dr.

6 Mira Zein (“Zein Decl.”)). Certain children are at even higher risk of serious illness if

7 they contract COVID-19, including those with pre-existing health conditions or

8 compromised immune systems,21 or who are pregnant or parenting. (Flamm Decl. ¶ 31;

9 Wang Decl. ¶ 19.)

10

And yet many ORR facilities have limited capacity to provide appropriate

11 medical care or mental health services. (Graves Decl. ¶ 31; Enriquez Decl. ¶ 33; Flamm

12 Decl. ¶ 17-18; Rutter Decl. ¶¶ 18-23, 27.)

13

The uncertainty and anxiety created by this pandemic creates particular risks for

14 children. (Ex. J (Declaration of Dr. Craig Haney ¶¶ 12-16 (“Haney Decl.”))). Now more

15 than ever, children need the support of caring family or caregivers. (Id.) To the extent

16 that ORR programs respond to this public health risk by further isolating children and

17 limiting opportunities for recreation or visits, this may further traumatize vulnerable

18 children. (Haney Decl. ¶ 12; Meyer Decl. ¶¶ 30, 34; Wang Decl. ¶ 23.)

19

C. ORR’s Recently Adopted Safety Measures for Congregate Care

20

Facilities Fail to Protect Class Members from COVID-19.

21

1. ORR’s COVID-19 Guidelines Do Not Comply with CDC and Epidemiological Mandates Regarding Vital Safety Measures.

22

On March 19, 2020, ORR distributed the “COVID-19 Interim Guidance for ORR

23 Programs” (“ORR Guidance”) to its contracted facilities. (Ex. K) The policies included

24 in the ORR Guidance are inadequate to protect children in ORR custody from the

25

26

https://www.nytimes.com/2020/03/24/us/california-coronavirus-death-child.html. 20 OIG, Care Provider Facilities Described Challenges Addressing Mental Health

27 Needs of Children in HHS Custody, HHS (Sept. 3, 2019), https://bit.ly/2QKIHEe.

28

21 See Are you at risk for serious illness?, CDC, https://bit.ly/39ciF37 (last reviewed Mar. 20, 2020).

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1 transmission of COVID-19 and contrary to current CDC guidelines as well as

2 widespread public health practice. (See Graves Decl. ¶¶ 13-20; Wang Decl. ¶¶ 20-26.)

3

The CDC has stated in no uncertain terms that “[t]he best way to prevent illness

4 is to avoid being exposed to this virus.” 22 In order to minimize exposure, current CDC

5 guidance stresses the importance of practicing “social distancing” and frequently

6 washing hands.23 The CDC defines social distancing as “remaining out of congregate

7 settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2

8 meters) from others when possible.”24 On March 16, 2020, the White House introduced

9 “The President’s Coronavirus Guidelines for America,” which asked everyone in the

10 nation to “avoid social gatherings in groups of more than 10 people,” avoid visiting

11 “long-term care facilities unless to provide critical assistance,” “[d]isinfect frequently

12 used items and surfaces as much as possible,” and “close schools in affected and

13 surrounding areas” as well as indoor and outdoor venues where groups of people

14 generally congregate, such as restaurants, food courts, and gyms.25

15

The ORR Guidance makes no mention of requiring or encouraging social or

16 physical distancing between children or staff, nor of limiting the gathering of groups of

17 children or staff within facilities. (See Graves Decl. ¶14, Wang Decl. ¶ 21; Ex. K (ORR

18 Interim Guidance).) This is not surprising, as it is nearly impossible for children

19 detained in ORR facilities to engage in appropriate social distancing to prevent the

20 transmission of COVID-19. (Enriquez Decl. ¶¶ 11, 21, 29; Flamm Decl. ¶ 12.) Unless

21 the number of children at these facilities is drastically reduced, the majority of these

22 facilities have insufficient space to allow children to maintain the required six-foot

23

24

22 How to Protect Yourself, CDC, https://bit.ly/33Pkr9p (last reviewed Mar. 18, 2020). 23 Id.

25 24 Interim US Guidance for Risk Assessment and Public Health Management of Persons

26

with Potential Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Cases, CDC, https://bit.ly/2QKU4w1 (last

27 updated Mar. 22, 2020).

28

25 The President’s Coronavirus Guidelines for America: 15 Days to Slow the Spread, THE WHITE HOUSE & CDC (Mar. 16, 2020), https://bit.ly/2Jfk7r7.

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1 distance between themselves and the nearest child or staff member. (Graves Decl.

2 ¶¶ 28-32; Wang Decl. ¶ 28.)

3

The ORR Guidance also neglects to:

4

• Provide information on managing the spread of disease among particularly

5

vulnerable children, such as those with compromised immune systems, heart

6

disease, diabetes, asthma or other chronic respiratory disease, and infants. (See

7

Graves Decl. ¶ 18; Wang Decl. ¶ 22.)

8

• Anticipate a situation in which more children need to be quarantined than

9

facilities’ isolation rooms can handle. (Graves Decl. ¶ 17; Wang Decl. ¶ 24.)

10

• Ensure that children have independent access to hand washing and sanitizing

11

supplies. (See Graves Decl. ¶ 20.)

12

• Provide a screening or testing protocol for children not deemed to be “at risk” but

13

still exhibiting COVID-19 symptoms, who could spread the disease. (See Graves

14

Decl. ¶ 19; Wang Decl. ¶ 25.)

15

On March 23, 2020, the CDC released “Interim Guidance on Management of

16 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities”

17 (“CDC Detention Facility Guidance”). (Ex. L.) The CDC Detention Facility Guidance

18 acknowledges that “(i)ncarcerated/detained persons live, work, eat, study, and recreate

19 within congregate environments, heightening the potential for COVID-19 to spread

20 once introduced,” and instructs facilities to “implement social distancing strategies to

21 increase the physical space between incarcerated/detained persons (ideally 6 feet

22 between all individuals, regardless of the presence of symptoms),” but acknowledges

23 that “not all strategies will be feasible in all facilities.” (Id.) Partial implementation of

24 social distancing will not adequately protect individuals from the spread of disease. (See

25 Graves Decl. ¶ 28.)

26

ORR may issue updated guidance in the coming days or weeks that adheres more

27 closely to the new CDC Detention Facility Guidance. However, unless the updated

28 guidance also provides for the expedited release of children such that strict adherence

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1 to social distancing within ORR facilities is possible, it will not adequately protect

2 against the transmission of COVID-19 and the risk of serious illness and death for

3 detained children. (See Graves Decl. ¶¶ 28-32; Wang Decl. ¶ 20.)

4

2. ORR’s COVID-19 Guidelines Fall Far Below Federal, State,

5

and Local Mandates to Reduce the Spread of COVID-19.

In accordance with the CDC and federal guidelines discussed above, numerous

6

federal, state, and local agencies have imposed swift mandates to reduce the spread of

7

COVID-19 in public and congregate settings such as nursing homes, homeless shelters,

8

schools, jails, and prisons. These mandates consistently prioritize social distancing,

9

increased sanitation, education, reduced visitation, and release. In many instances, the

10

actions taken are even more protective than those recommended by the CDC.

11

Indeed, numerous states have issued extraordinary and unprecedented measures

12

to ensure “social distancing” and to date over 160 million Americans have been ordered

13

to “shelter in place.” 26 For example, on March 19, 2020, Governor Gavin Newsom

14

ordered 40 million Californians to stay in their homes, with limited exceptions, and

15

maintain a minimum distance of 6 feet from others.27 The following day, New York

16

issued similar orders, requiring a distance of “at least six feet” between people in public,

17

cancelling all “non-essential gatherings of individuals of any size for any reasons,”

18

closing all non-essential business, and requiring those essential business that remain

19

open to “implement rules that help facilitate social distancing of at least six feet.”28

20

Within the past two weeks, Washington D.C. and forty-six states have mandated

21

statewide school closures,29 with only four states left to follow.30

22

23 26 Sarah Mervosh and Denise Lu, See Which States and Cities Have Told Residents to

24

Stay Home, THE NEW YORK TIMES, Mar. 24, 2020. 27 Coronavirus (COVID-19) in California, CALIFORNIA STATE GOVERNMENT,

25 https://covid19.ca.gov/ (last Mar. 24, 2020).

26

28 Gov. Andrew M. Cuomo’s Press Office, Governor Cuomo Signs the ‘New York State on PAUSE’ Executive Order, https://on.ny.gov/2UtTYtO (last visited Mar. 24, 2020).

27 29 David Nagel, Updated List of Statewide School Closures with Closure Dates, THE

28

JOURNAL, https://bit.ly/2UjPKWV (last updated Mar. 24, 2020). 30 Dante Chinni, School closures skyrocket, nearly 54 million students sent home, NBC

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1

States have also adopted measures to limit exposure in congregate settings like

2 homeless shelters. On February 24, 2020, New York issued guidance for homeless

3 shelters, which recommends a minimum distance of three to six feet between beds and

4 head-to-toe or toe-to-toe sleeping arrangements; barriers between beds (such as

5 curtains); separating symptomatic residents in private rooms with separate bathrooms

6 where available; and staggered mealtimes and use of common areas.31 Staff are advised

7 to clean their hands in accordance with CDC guidelines, and hand sanitizer is to be

8 made available to residents along with tissues, soap and paper towels for hand washing,

9 and face masks.32 Even so, individuals in New York homeless shelters have still tested

10 positive for COVID-19. 33 Recognizing that large shelters are particularly susceptible to

11 the spread of COVID-19, California is setting up shelters in trailers, hotels and motels

12 to facilitate social distancing.34

13

In the prison and jail context, similar concerns have been raised. Although the

14 U.S. Bureau of Prisons has implemented some precautions, they have proven

15 inadequate35 and raise valid concerns from experts in detention health, infectious

16 disease, and public health, as well as U.S. Senators, who urged the release of “those

17 who do not pose an immediate danger to public safety.”36 The U.S. government is now

18

19

NEWS (Mar. 22, 2020, 9:00 AM), https://nbcnews.to/2Ue3m5P. 31 Interim COVID-19 Guidance for Homeless Shelters, NYC DEPT. OF HEALTH,

20 https://on.nyc.gov/39g0slr (last visited Mar. 24, 2020).

21

32 Id. 33 Coronavirus ‘Attack Rate’ in N.Y. Concerns White House, N.Y. TIMES (Mar. 24,

22

2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-new-yorkupdate.html.

23 34 Governor Newsom Takes Emergency Actions & Authorizes $150 Million in Funding

24

to Protect Homeless Californians from COVID-19, OFFICE OF GOV. GAVIN NEWSOM (Mar. 18, 2020), https://bit.ly/3bpbG8B.

25 35 Craig McCarthy, NYC jails see outbreak of coronavirus cases with exponential

26

increase expected, N.Y. POST (Mar. 22, 2020), https://bit.ly/2xmGhVA. 36 Josiah Rich, et al., We must release prisoners to lessen the spread of the coronavirus,

27 WASH. POST (Mar. 17, 2020), https://wapo.st/33IpbO5; Zack Budryk, Harris pushes for

28

release of low-risk federal prisoners amid coronavirus outbreak, THE HILL (Mar. 19, 2020), https://bit.ly/2Uh2JZi. Relatedly, the American Bar Association policy favors

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1 entertaining the possibility of releasing some inmates to reduce the risk of a larger

2 outbreak.37 State and local jurisdictions, also concerned with their inability to protect

3 inmates, staff, and the community are making concerted efforts to release detainees as

4 expeditiously as possible.38

5 III. STANDARDS FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER

6

A plaintiff seeking preliminary relief under Federal Rule of Civil Procedure 65

7 must establish “that he is likely to succeed on the merits, that he is likely to suffer

8 irreparable harm in the absence of preliminary relief, that the balance of equities tips in

9 his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def.

10 Council, Inc., 555 U.S. 7, 20 (2008); Washington v. Trump, 847 F.3d 1151, 1159 n.3

11 (9th Cir. 2017) (noting standards for issuing temporary restraining orders and

12 preliminary injunctions are “substantially identical”). In balancing these elements, “a

13 stronger showing of one element may offset a weaker showing of another.” All. for the

14 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Thus, when the likelihood

15 of grave irreparable injury is palpable and the balance of equities tips sharply in a

16 plaintiffs’ favor, the plaintiffs need only “demonstrate a fair chance of success on the

17 merits or questions serious enough to require litigation.” Arc of Cal. v. Douglas, 757

18 F.3d 975, 993-94 (9th Cir. 2014) (internal quotations and citation omitted).

19 IV. CLASS MEMBERS WILL SUCCEED ON THE MERITS

20

The foregoing demonstrates beyond any shadow of a doubt that Class Members

21

22

release of prisoners in exceptional circumstances, including serious illness concerns. Criminal Justice Standards: Standards on Treatment of Prisoners, ABA, Standard 23-

23 8.9(g), https://bit.ly/39nj4QF (last visited Mar. 24, 2020).

24

37 Johnson, Trump weighs release of some federal prisoners after inmate tests positive for coronavirus, USA TODAY, https://bit.ly/3bsYpMp (last updated Mar. 22, 2020).

25 38 New Jersey’s Supreme Court issued a Consent Order that is expected to result in the

26

release of at least 1,000 inmates. Consent Order, In re: Request to Commute or Suspend Cnty. Jail Sentences, N.J. ECF No. 084230 (Mar. 22, 2020). Iowa reported the expedited

27 release of 700 incarcerated people, Los Angeles County has already released over 600

28

inmates, and other jurisdictions are promptly following suit, including in Ohio and Texas. Prison Policy Initiative, Responses to the Covid-19 Pandemic (Mar. 23, 2020).

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1 in ORR congregate detention are vulnerable to contract COVID-19. The threat of

2 irreparable injury to their health and safety is palpable, and for those detained at least

3 30 days while ORR evaluates their potential custodians, the balance of the equities

4 clearly tips sharply in their favor.

5

Class Members therefore need only demonstrate “a fair chance of success on the

6 merits or questions serious enough to require litigation” to secure preliminary relief.

7 Arc of Cal., 757 F.3d at 993-94 (internal quotations and citation omitted); All. for the

8 Wild Rockies, 632 F.3d at 1132 (“‘[S]erious questions going to the merits’ and a

9 hardship balance that tips sharply toward the plaintiff can support issuance of an

10 injunction, assuming the other two elements of the Winter test are also met.”). Class

11 Members’ prospects here far exceed a “fair chance” of succeeding on the merits.

12

The Flores Settlement, the TVPRA, and the First and Fifth Amendments to the

13 U.S. Constitution each vest children who have custodians available to receive them with

14 substantive rights against ORR’s keeping them in congregate care, especially during a

15 global pandemic. Given a health crisis that will only worsen in the coming days and

16 weeks, Class Members’ requested due process relief easily satisfies the Mathews v.

17 Eldridge, 424 U.S. 319 (1976), balancing test. See infra Sec. IV.C.3.

18

A. ORR Violates The TVPRA By Continuing To Detain Children With

19

Viable Sponsors In Congregate Settings.

20

The TVPRA requires ORR to “promptly” place detained children “in the least

21 restrictive setting that is in the best interest of the child,” generally with “a suitable

22 family member . . .” or other available guardian. 8 U.S.C. § 1232(c)(2)(A). Only if a

23 suitable family member or other guardian is not available to take custody of a minor

24 may ORR continue to detain him or her “in a specialized juvenile program or

25 facility.” Flores v. Sessions, 862 F.3d at 871.

26

By definition, all members of the “unfit custodian” class – and, a fortiori, those

27 whom the requested relief would protect – have family or other custodians available to

28

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1 receive them. Their ongoing detention in congregate care in the face of a rapidly

2 spreading public health crisis is a prima facie violation of the TVPRA.

3

According to the most recent ORR data at Plaintiffs’ disposal, as of March 13,

4 2020, ORR had 3,622 children in custody, 1,193 – nearly a third – of whom have been

5 placed in congregate settings for 30 days or more. (Holguín Decl., ¶ 3.) ORR’s data do

6 not indicate why the agency has yet to release these children, nor how many of them

7 have available custodians, yet the vast majority likely do.39

8

Unless they meet the specific criteria, the TVPRA requires ORR to release

9 children to any available custodian who “is capable of providing for the child’s physical

10 and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). In determining whether a proposed

11 custodian meets this standard, the TVPRA requires ORR (1) to verify “the custodian’s

12 identity,” and (2) “relationship to the child, if any,” and (3) “make an independent

13 finding that the individual has not engaged in any activity that would indicate a potential

14 risk to the child.” Id.

15

The first two determinations are fairly straightforward, and may be verified

16 following the submission of a completed “family reunification application” (“FRA”).

17 (See Ex. N (ORR Policy Guide § 2.2.4 (when submitting an FRA, “potential sponsors

18 must provide documentation of identity, address, and relationship to the child”).) As for

19 the third determination – whether the proposed sponsor has “engaged in any activity

20

21 39 ORR categorizes detained children pursuant to their relationship with potential

22 custodians. (Ex. N (ORR Policy Guide § 2.2.1).) The approximate percentage of

23

children in ORR custody in each category are as follows: • 42% in “Category 1” – i.e., they have parents or guardians in the U.S.;

24

• 47% in “Category 2” – i.e., they have an “immediate” relative – brother, sister,

25

grandparent, aunt, uncle, or first cousin –to whom they could be released;

26

• 11% in “Category 3” – i.e., children with “other sponsors,” such as “more distant relatives and unrelated adult individuals”;

27

• The remainder are “Category 4” – i.e., children for whom ORR has identified no

28

potential custodian. (Holguín Decl. ¶ 4; Ex. O (Shiloh PowerPoint Presentation)).

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1 that would indicate a potential risk to the child” – ORR requires potential custodians to

2 “immediately” advise whether the proposed custodian has “a record of a criminal charge

3 or child abuse” and submit “detailed documentation of the charges, dispositions, police

4 reports, and evidence of rehabilitation.” (Ex. N (ORR Policy Guide § 2.5.3).) ORR also

5 completes background checks of all sponsors and adult household members through a

6 public records criminal history check and a sex offender registry check. (Ex. N (ORR

7 Policy Guide § 2.5).) These are simple internet searches that can be completed

8 expeditiously by a case manager. (Ex. M. (ORR Manual of Procedures at § 2.5).)

9 Although ORR chooses to require certain sponsors, household members, and adult

10 caregivers to further undergo an FBI National Criminal History Check, Child Abuse

11 and Neglect (CA/N) Check, and State Criminal History Repository Check and/or Local

12 Police Check, these are not mandated by the TVPRA.

13

In the vast majority of cases,40 any additional delay is often attributable either to

14 (1) discretionary investigatory measures, or (2) administrative inefficiency or

15 indifference. In establishing the requirements to vet proposed custodians, ORR has a

16 track record of arbitrariness and vacillation. (E.g., After policy reversal, hundreds of

17 detained children could be released, PBS, Dec. 19, 2018,

18 https://www.pbs.org/newshour/show/after-policy-reversal-hundreds-of-detained-

19 migrant-children-could-be-released (according to HHS Assistant Secretary Lynn

20 Johnson, ORR’s expanded fingerprinting policy was “not adding anything to the

21 protection or the safety for these children”); Flores v. Barr, No. 2:85-cv-04544-DMG-

22 AGR, Order re Pls.’ Mot. to Enforce Class Action Settlement, July 30, 2018 (ECF No.

23

24 40 The TVPRA requires ORR to conduct home studies before releasing trafficking and

25 abuse victims and children with special needs, 8 U.S.C. § 1232(c)(3)(B); but relatively

26

few class members – and certainly not a third – fall within these special categories. Nor is there any apparent reason ORR could not generally complete a home study within 30

27 days. (See Ex. M (ORR Manual of Procedures at § 2.4.2) (directing that cases be

28

referred for home studies within three business days and completed within ten business days of acceptance of the referral).)

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1 470) at 27-29 (disapproving ORR requirement that its director approve release of any

2 child placed in a restrictive setting); id. at 29-30 (disapproving ORR requirement that

3 myriad post-release services be in place before a child is released to a sponsor subjected

4 to a home study).

5

The harm that detention inflicts upon children is well established See, e.g., Julie

6 M. Linton et al., Detention of Immigrant Children, PEDIATRICS, Apr. 2017, at 6

7 (“[E]xpert consensus has concluded that even brief detention can cause psychological

8 trauma and induce long-term mental health risks for children.”). Plaintiffs reject the

9 presumption that ORR’s obligation to vet proposed custodians necessarily offsets that

10 harm. These delays must now be evaluated in light of the extraordinary circumstances

11 presented by this pandemic. The science is clear: if ORR fails to end congregate

12 detention, or at least reduce it dramatically, it is only a matter of time before COVID-

13 19 illness rages among children forced into close proximity with one another.

14

Thirty days should be more than enough for ORR to assess post-release risk.

15 (E.g., Ex. P (Declaration of James M. Owens ¶ 6 (“Owens Decl.”) (state dependency

16 courts determine whether there is cause to detain children within three days)); Ex. M

17 (ORR Manual of Procedures, at § 2.2.2 (care providers generally expected to complete

18 custodian evaluations within 10-21 days), § 2.7.2 (case coordinators expected to make

19 recommendation within 1 business day), and § 2.7.3 (Federal Field Specialists expected

20 to make release decisions within 1-2 business days of receiving case coordinator

21 recommendations)). Any marginal gains to child safety from ORR’s distending

22 investigations for more than 30 days cannot outweigh the harm congregate detention

23 will inevitably cause. Leaving children on the tracks with the COVID-19 train fast

24 approaching while ORR takes even more time is unconscionable.

25

There is accordingly no serious question that ORR detaining over one thousand

26 children in congregate settings for more than 30 days during a raging pandemic, even

27 though they have custodians available to care for them, is a prima facie violation of the

28

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1 TVPRA’s requirement that it promptly place children in the least restrictive setting that

2 is in their best interest.

3

B. ORR Violates The Flores Settlement By Refusing To Release Children

4

To Available Custodians, And Instead Forcing Them To Remain In Unsafe Or Unsanitary Conditions.

5

The injunctive relief Plaintiffs seek is also a necessary step to protect against the

6 erroneous deprivation of children’s substantive rights under the Flores Settlement41 to

7 (1) prompt release and (2) safe and sanitary conditions, rights that have become vastly

8 more important to children in congregate detention during a pandemic. In particular, the

9 Flores Settlement requires:

10

• “Where [ORR] determines that the detention of the minor is not required either

11

to secure his or her timely appearance before [DHS] or the immigration court, or

12

to ensure the minor’s safety or that of others, [ORR] shall release a minor from

13

its custody without unnecessary delay . . . [to] an adult

14

relative . . .” (Flores Settlement ¶ 14 (emphasis added));

15

• “[ORR] . . . shall make and record the prompt and continuous efforts on its part

16

toward . . . the release of the minor . . .” (id. ¶ 18);

17

• ORR must house children “in facilities that are safe and sanitary and that are

18

consistent with [its] concern for the particular vulnerability of minors” (Id. ¶ 12);

19

• ORR must place detained children in state-licensed facilities that comply with

20

both state health and safety standards and the minimum standards listed in Exhibit

21

1 to the Settlement, which include “[p]roper physical care and maintenance,

22

including suitable living accommodations.” (id. ¶¶ 6, 19 Ex. 1, ¶ A.1).

23

During a public health crisis, ORR holding class members in congregate

24 detention even after it has already had 30 days to evaluate available custodians is in

25

26

41 This Court has clarified that, although Plaintiffs may not seek to enforce the Flores Settlement in this action, “Plaintiffs may pursue due process claims

27 predicated on Defendants’ failure to provide sufficient procedural safeguards for alien

28 minors to exercise their Flores rights” (ECF No. 141 at 10-11).

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1 prima facie violation of each of these provisions, yet class members have been deprived

2 of adequate process to protect these rights. This Court should require ORR to articulate

3 good cause for exposing children to the clear dangers of congregate detention in lieu of

4 release to their families or transfer to non-congregate settings.

5

C. ORR Violates the Due Process Clause Of The Fifth Amendment By

6

Exposing Vulnerable Children To Clearly Dangerous Conditions.

7

The Due Process Clause of the Fifth Amendment protects individuals against (i)

8 “arbitrary action of government” – a denial of procedural due process – or (ii) “the

9 exercise of power without any reasonable justification in the service of a legitimate

10 government objective” – a denial of substantive due process. City of Sacramento v.

11 Lewis, 523 U.S. 833, 845-46 (1998) (citations and internal quotations omitted).

12 Detaining Class Members in congregate facilities that are inherently unsafe in the midst

13 of the COVID-19 pandemic rather than releasing them to available custodians violates

14 both substantive and procedural due process.

15

1. ORR has an affirmative duty to guarantee Class Members’

16

reasonable health and safety.

17

ORR has an affirmative duty to place Class Members in facilities capable of

18 ensuring their reasonable health and safety. “When the State takes a person into

19 its custody and holds him there against his will, the Constitution imposes upon it a

20 corresponding duty to assume some responsibility for his safety and general well-

21 being.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200

22 (1989); see also Henry A. v. Willden, 678 F.3d 991, 998 (9th Cir. 2012). The Ninth

23 Circuit has found that a special relationship “applies to children in foster care,” Henry

24 A., 678 F.3d at 1000, as well as others in government custody. See Wang v. Reno, 81

25 F.3d 808, 818 (9th Cir. 1996). As a result, ORR’s obligation to provide children in its

26 custody with, inter alia, “medical care, and reasonable safety,” DeShaney at 200,

27 includes reasonable protections from the risks presented by the COVID-19 pandemic.

28

The constitutional guarantee of “reasonable safety” protects against the risk of

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1 future harm even in the less protective Eighth Amendment context.42 Yet here, Class

2 Members are civil immigration detainees with rights derived from the Fifth

3 Amendment. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). In Helling v. McKinney,

4 the Supreme Court specifically recognized that the risk of contracting a

5 communicable disease may constitute an “unsafe, life-threatening condition” that

6 threatens “reasonable safety.” 509 U.S. 25, 33 (1993). The Fifth Amendment thus

7 protects Class Members in the government’s custody from the risk of contracting

8 COVID-19, exacerbated by unsafe conditions inherent to congregate settings.

9

2. ORR’s failure to release Class Members expeditiously and

10

ensure adequate safety measures in the midst of a pandemic violates their substantive due process rights.

11

The Ninth Circuit has recognized that individuals who have been civilly

12 committed or detained “cannot be subjected to conditions that ‘amount to punishment.’”

13 Jones v. Blanas, 393 F.3d 918, 931, 934 (9th Cir. 2004).

14

Courts in this Circuit have recognized that immigration detention may amount to

15 punishment and violate due process “if it imposes some harm to the detainee that

16 significantly exceeds or is independent of the inherent discomforts of confinement and

17 is not reasonably related to a legitimate governmental objective or is excessive in

18 relation to the legitimate governmental objective.” Unknown Parties, 2016 WL

19 8188563, at *5. Here, as the Ninth Circuit recognized, the continued detention of Class

20 Members in congregate care settings both (i) imposes harm that significantly exceeds

21 the inherent discomforts of their confinement and (ii) is excessive in relation to

22 legitimate governmental objectives. See Xochihua-Jaimes v. Barr, 18-cv-71460, ECF

23 No. 53 (Mar. 23, 2020) (“In light of the rapidly escalating public health crisis, which

24 public health authorities predict will especially impact immigration detention centers,

25

26

42 See Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 WL 8188563, at *5 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017)

27 (immigration detainees “are most decidedly entitled to ‘more considerate treatment’

28

than those who are criminally detained”; “decisions defining the constitutional rights of prisoners establish a floor for the constitutional rights of [civil immigration detainees]”).

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1 the court sua sponte orders that Petitioner be immediately released from detention ….”).

2

First, it is indisputable that the grave risk to all Class Members of potential

3 exposure to COVID-19 is both significantly greater than and unrelated to the “inherent

4 discomforts” generally associated with detention in ORR’s custody.

5

Second, although Defendants maintain that ORR’s detention of Class Members

6 beyond 30 days is required by law to prevent the release of children to custodians who

7 may abuse and neglect them, the continued detention of Class Members in life-

8 threatening congregate care settings is grossly excessive in view of the substantial and

9 immediate threat posed by the COVID-19 pandemic. Accelerating release of children

10 to available sponsors would dramatically reduce the harm to all Class Members by both

11 vastly reducing their own risk of exposure to COVID-19 and allowing children without

12 sponsors to be placed in less crowded settings. Defendants’ failure to expedite release

13 to protect the health and safety of all class members is thus excessive and unjustifiable.

14

3. ORR’s failure to release Class Members expeditiously in the

15

midst of a life-threatening pandemic clearly violates their procedural due process rights.

16

In addition, ORR’s failure to expedite release of Class Members given the

17 imminent threat to their health and safety posed by COVID-19 violates procedural due

18 process as guaranteed by the Fifth Amendment. As this Court has recognized,

19 “[Procedural] due process . . . has three elements: (1) a liberty or property interest

20 protected by the Constitution; (2) a deprivation of the interest by the government; (3)

21 lack of process.” (ECF No. 141 at 13 (quoting Portman v. Cnty. of Santa Clara, 995

22 F.2d 898, 904 (9th Cir. 1993)).) The Class Members easily satisfy these factors.

23

First, as this Court has recognized, Class Members have substantive interests

24 implicated by their detention in ORR custody that give rise to due process protection,

25 all of which are heightened by the unprecedented threat posed by COVID-19:

26

• A fundamental right to freedom from detention, e.g., Zadvydas v. Davis, 533 U.S.

27

678, 690 (2001); Reno v. Flores, 507 U.S. 292, 316 (1993);

28

• a substantial liberty interest in family unity and family association, e.g.,

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1

Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011); and

2

• rights to prompt release under the TVPRA and the Flores Agreement (see ECF

3

No. 141 at 14-15).

4

Second, ORR’s actions deprive Class Members of these constitutionally

5 protected interests. Indeed, ORR’s delay in releasing children in its custody is deeply

6 harmful to children even under ordinary circumstances, and is especially dangerous in

7 light of the current pandemic. See Stanley v. Ill., 405 U.S. 645, 647 (1972) (even a

8 temporary deprivation of the right to family integrity is constitutionally significant).

9

Third, ORR’s procedures governing release of Class Members fall short of those

10 required under the Due Process Clause. Due process is “flexible and calls for such

11 procedural protections as the particular situation demands.” See Morrissey v. Brewer,

12 408 U.S. 471, 481, (1972). Normally, “[t]he consequences of an erroneous commitment

13 decision are more tragic where children are involved” because “childhood is a

14 particularly vulnerable time of life and children erroneously institutionalized during

15 their formative years may bear the scars for the rest of their lives.” Reno v. Flores, 507

16 U.S. at 318 (O’Connor, J. and Souter, J., concurring) (internal citations omitted). Now,

17 in light of the COVID-19 pandemic, the consequences of an erroneous commitment

18 decision for these children could be deadly.43 See supra Sec. II.

19

Given the extraordinary circumstances presented by this pandemic, due process

20 requires at a minimum that ORR (1) release all Unfit Custodian Class Members to

21 available sponsors absent credible evidence that such sponsors would harm or neglect

22 them, (2) place such Class Members in non-congregate care that satisfies Centers for

23 Disease Control and Prevention guidelines, or (3) provide all such Class Members with

24 evidence supporting ORR’s decision not to release them and an opportunity to be heard

25 regarding the grounds for continued congregate detention as set forth in Plaintiffs’

26 requested Temporary Restraining Order. ORR currently affords Class Members none

27

28 43 See supra footnote 17.

MEMO. OF PS & AS ISO EX PARTE APPLICATION

21

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1 of these minimal procedural protections under any circumstances.44 See Office of

2 Refugee Resettlement, Children Entering the United States Unaccompanied: Section 2,

3 HHS (Jan. 30, 2015), https://bit.ly/2UwJM3G.45

4

Without such protections, there is a high likelihood that Class Members have

5 been and will continue to be subjected to the risk of death or serious illness, and the

6 traumatic effects of heightened isolation (Graves Decl. ¶ 13; Zein Decl.; Haney

7 Decl. ¶ 12), and will further be deprived of essential support from family members or

8 other caring adults at this time of extreme stress and anxiety. (Haney Decl. ¶¶ 12-16.)

9 V. 10

ABSENT A TEMPORARY RESTRAINING ORDER, CLASS MEMBERS IN CONGREGATE FACILITIES WILL SUFFER IRREPARABLE INJURY.

11

A plaintiff must also demonstrate “immediate threatened injury as a prerequisite

12 to preliminary injunctive relief.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d

13 668, 674 (9th Cir. 1988). “Irreparable harm is the single most important prerequisite for

14 the issuance of a preliminary injunction.” Spark Indus., LLC v. Kretek Int’l, Inc., No.

15 CV 14-5726-GW(ASX), 2014 WL 12600262, at *3 (C.D. Cal. July 29, 2014) (citations

16 omitted). Increased risk of exposure to a deadly virus by virtue of placement in

17 congregate care represents a paradigmatic example of imminent irreparable harm.

18

An imminent threat to health and safety constitutes irreparable harm. For

19 example, in Unknown Parties, the district court – as later affirmed by the Ninth Circuit

20 – issued an injunction to curb physiological, health and/ or medical risks to civil

21 immigration detainees, including “being exposed to communicable diseases.” 2016 WL

22 8188563, at *15 (emphasis added). Likewise, in Harris v. Bd. of Supervisors, Los

23

24

44 Plaintiffs assert that due process requires greater protections than currently sought in this Temporary Restraining Order. See First Amended Complaint ¶ 111. Plaintiffs

25 reserve their right to seek such protections through a preliminary injunction.

26

45 In the child welfare systems of all fifty states, children may not be detained for want of a qualified custodian without affording them and/or their parents or other potential

27 custodians a prompt hearing before a judge or other neutral and detached

28

decisionmaker, during which allegations of unfitness are tested via trial-like procedures and any ensuing finding of unsuitability must be based on competent evidence.

MEMO. OF PS & AS ISO EX PARTE APPLICATION

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1 Angeles Cty., the Ninth Circuit affirmed a preliminary injunction where the closure of

2 a hospital and bed reductions would irreparably injure chronically ill indigent patients

3 by inflicting “pain, infection, amputation, medical complications, and death due to

4 delayed treatment.” 366 F.3d 754, 756 (9th Cir. 2004); see also Jones v. Tex. Dep’t. of

5 Crim. Justice, 880 F.3d 756, 760 (5th Cir. 2018) (denial of adequate medical care for

6 prisoner’s diabetes constituted irreparable harm).

7

In light of the rapid spread of COVID-19 across the country and the impossibility

8 of maintaining proper social distancing in ORR congregate care facilities, Class

9 Members face an unacceptable risk of contracting COVID-19 in ORR custody. This

10 danger will only grow the longer Class Members remain detained in unsafe facilities.

11 Class Members who contract COVID-19 are at risk of death or serious illness, including

12 the potential for permanent impairment. (Graves Decl. ¶ 7.) Even Class Members who

13 display less severe symptoms will face the discomfort of being ill and, if they are

14 quarantined, the traumatic psychological effects of isolation far from caring family

15 members or other caregivers. (Wang Decl. ¶ 23.)

16

All Class Members, even those who do not become ill, are vulnerable to

17 irreparable psychological harm from the anxiety and likely heightened isolation of

18 being detained in the midst of a pandemic. (Haney Decl. ¶¶ 12-17.) See Edmo v.

19 Corizon, Inc., 935 F.3d 757, 797-98 (9th Cir. 2019) (noting that “severe, ongoing

20 psychological distress” can constitute irreparable harm); Stanley v. Univ. of S. Cal., 13

21 F.3d 1313, 1324 n.5 (9th Cir. 1994) (finding legal support for conclusion that “serious

22 emotional distress” cannot be remedied through money damages).

23

Conditions in ORR facilities are incompatible with preserving Class Members’

24 health and mental wellbeing. These unsafe conditions, along with the lack of available

25 medical care pose an extremely high likelihood of irreparable harm to Plaintiffs.

26 VI. THE BALANCE OF EQUITIES FAVORS INJUNCTIVE RELIEF

27

In this case, the equities and public interest merge into a single balancing test

28 because Defendants are government officials. See Nken v. Holder, 556 U.S. 418, 435

MEMO. OF PS & AS ISO EX PARTE APPLICATION

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1 (2009); see also Cal. v. Azar, 911 F.3d 558, 581 (9th Cir. 2018). “A court must balance

2 the competing claims of injury and must consider the effect on each party of the granting

3 or withholding of the requested relief.” Arc of Cal., 757 F.3d at 991 (quoting Amoco

4 Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). Importantly, “the Ninth Circuit

5 expects lower courts to protect physical harm to an individual over monetary costs to

6 government entities.” McNearney v. Wash. Dep’t of Corr., No. 11-cv-5930 RBL/KLS,

7 2012 WL 3545267, at *15 (W.D. Wash. June 15, 2012).

8

The balance here tips decidedly in favor of Plaintiffs’ interest in health and safety,

9 which Defendants are placing at unnecessary risk. Unless this Court intervenes,

10 Plaintiffs are likely to suffer serious and severe irreparable harm, including likely

11 exposure to COVID-19. No purported government interest justifies subjecting children

12 to this life-threatening virus. See Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1193 (N.D.

13 Cal. 2015) (holding equities sharply favored detainee who “established that she is

14 suffering and is likely to continue to suffer unnecessary pain”); see also Lopez v.

15 Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (“Faced with . . . a conflict between

16 financial concerns and preventable human suffering, [the court has] little difficulty

17 concluding that the balance of hardships tips decidedly in plaintiffs’ favor.”).

18

Granting Plaintiffs’ motion would not subject Defendants to any identifiable

19 hardship outweighing the irreparable harm to Plaintiffs’ health and safety. Indeed,

20 Defendants cannot point to any harm because they “‘cannot suffer harm from an

21 injunction that merely ends an unlawful practice.’” Ms. L. v. ICE, 310 F. Supp. 3d 1133,

22 1147 (S.D. Cal. 2018) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir.

23 2013)). Moreover, “it is obvious that compliance with the law is in the public interest.”

24 N.D. ex rel. parents acting as guardians ad litem v. Haw. Dep’t of Educ., 600 F.3d 1104,

25 1113 (9th Cir. 2010); see also Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1197

26 (9th Cir. 2011) (The “public interest favors applying federal law correctly.”). Because

27 the requested relief would simply mandate compliance with Constitution, TVPRA, and

28 the Flores Settlement, the Government could suffer no harm as a result.

MEMO. OF PS & AS ISO EX PARTE APPLICATION

24

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1

Granting Plaintiffs’ request for preliminary relief also serves the public interest

2 because allowing COVID-19 to spread in ORR congregate care facilities endangers the

3 general public. As public health experts have explained, reducing the number of

4 individuals in congregate care settings protects both those individuals and the

5 communities around them. An outbreak of COVID-19 in a congregate facility, such as

6 an ORR shelter, could quickly overtake the capacity of local health care resources, and

7 would likely require transport of infected individuals, potentially to areas where

8 COVID-19 has not yet spread. (Graves Decl. ¶ 36; Ex. D (Letter to Congress at 4.))

9 VII. CONCLUSION

10

For the foregoing reasons, the Court should grant this application for a temporary

11 restraining order and order Defendants to show cause why a preliminary injunction

12 should not issue in the form lodged herewith.

13 14 Dated: March 25, 2019 15 16 17 18 19 20 21 22 23 24 25 26 27

CARLOS R. HOLGUIN Center for Human Rights & Constitutional Law HOLLY S. COOPER CARTER C. WHITE University of California Davis School of Law LEECIA WELCH BRENDA SHUM NEHA DESAI POONAM JUNEJA FREYA PITTS CRYSTAL ADAMS National Center for Youth Law SUMMER J. WYNN MARY KATHRYN KELLEY REBECCA L. TARNEJA ALEXANDRA R. MAYHUGH Cooley LLP
By: s/ Carlos R. Holguin Carlos R. Holguin (90754)
s/ Leecia Welch Leecia Welch (208741)

28

MEMO. OF PS & AS ISO EX PARTE APPLICATION

25

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 Case 2:18-cv-05741-DMG-PLA Document 227-2 Filed 03/25/20 Page 1 of 6 Page ID #:5032

1 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW
2 CARLOS R. HOLGUÍN (90754) 256 South Occidental Boulevard
3 Los Angeles, CA 90057 Telephone: (213) 388-8693
4 Email: crholguin@centerforhumanrights.org

5 Attorneys for Plaintiffs

6 Additional counsel listed on following page

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 LUCAS R., et al.,

Case No. 2:18-CV-05741 DMG PLA

13

Plaintiffs,

14

v.

15 ALEX AZAR, et al.,

16

Defendants.

17

18

DECLARATION OF CARLOS HOLGUÍN IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
Hearing: None Set Judge: Hon. Dolly M. Gee

19

20

21

22

23

24

25

26

27

28
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1 UNIVERSITY OF CALIFORNIA DAVIS SCHOOL OF LAW

HOLLY S. COOPER (197626)

2 Co-Director, Immigration Law Clinic

CARTER C. WHITE (164149)

3 Director, Civil Rights Clinic

One Shields Ave. TB 30

4 Davis, CA 95616

Telephone: (530) 754-4833

5 Email: hscooper@ucdavis.edu

ccwhite@ucdavis.edu

6

NATIONAL CENTER FOR YOUTH LAW

7 LEECIA WELCH (208741)

NEHA DESAI (CAL. RLSA NO. 803161)

8 POONAM JUNEJA (300848)

FREYA PITTS (295878)

9 1212 Broadway, Suite 600

Oakland, CA 94612

10 Telephone: (510) 835-8098

Email: lwelch@youthlaw.org

11

ndesai@youthlaw.org

pjuneja@youthlaw.org

12

fpitts@youthlaw.org

13 NATIONAL CENTER FOR YOUTH LAW

BRENDA L. SHUM (OR. BAR NO. 961146), admitted pro hac vice

14 CRYSTAL ADAMS (308638)

1313 L St. NW, Suite 130

15 Washington, DC 20005

Telephone: (202) 868-4785

16 Email: bshum@youthlaw.org

cadams@youthlaw.org

17

COOLEY LLP

18 SUMMER J. WYNN (240005)

MARY KATHRYN KELLEY (170259)

19 4401 Eastgate Mall

San Diego, CA 92121

20 Telephone: (858) 550-6000

Facsimile: (858) 550-6420

21 Email: swynn@cooley.com

mkkelley@cooley.com

22

mdonohue@cooley.com

23 COOLEY LLP

REBECCA L. TARNEJA (293461)

24 ALEXANDRA R. MAYHUGH (300446)

1333 2nd Street, Suite 400

25 Santa Monica, CA 90401

Telephone: (310) 883-6400

26 Facsimile: (310) 883-6500

Email: rtarneja@cooley.com

27

amayhugh@cooley.com

28 Attorneys for Plaintiffs

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1

I, Carlos Holguín, hereby declare:

2

1. I am an attorney admitted to the bar of the United States District Court for

3 the Central District of California. I am one of the attorneys who serve as class counsel

4 for Plaintiffs in the above-captioned action. I am also one of the attorneys for the

5 plaintiff class in Flores v. Barr, No. 2:85-cv-04544-DMG-AGR. My business address

6 is 256 S. Occidental Blvd., Los Angeles, CA 90057. I execute this declaration in support

7 of Plaintiffs’ ex parte application for a temporary restraining order and order to show

8 cause re: preliminary injunction protecting Lucas R. class members from irreparable

9 injury during the COVID-19 national public health emergency. I declare that the

10 following statements are true to the best of my knowledge, information, and belief,

11 formed after reasonable inquiry of the circumstances. I have personal knowledge of the

12 facts set forth below and, if called as a witness, I could and would testify competently

13 as follows.

14

2. Pursuant to ¶¶ 28 and 29 of the settlement approved in Flores in 1997, the

15 Office of Refugee Resettlement (“ORR”) provides Flores class counsel with statistical

16 reports on all juveniles in its custody. Among other things, these reports identify class

17 members, indicate in the name and type of facility in which they are detained, and

18 provide the date on which each juvenile came into ORR custody. ORR’s data do not

19 indicate whether juveniles have a family member or other potential custodian in the

20 United States available to receive them, nor do they indicate whether a potential

21 custodian has submitted a family reunification application seeking a given juvenile’s

22 release.

23

3. The most recent statistical report indicates as of March 13, 2020, ORR had

24 3,622 children in custody, 1,193 of whom were in congregate settings after having been

25 in ORR custody for 30 days or more.

26

4. In the course of representing Flores class members, in or about December

27 2018, I participated in a meeting at ORR’s Shiloh residential treatment center with ORR

28 representatives overseen by the Flores Special Master/Independent Monitor, Andrea

1

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1 Sheridan Ordin. During the meeting, an ORR representative presented a PowerPoint

2 providing statistics regarding juveniles in ORR custody. At my request, defense counsel

3 in Flores later forwarded me a printout of the Shiloh PowerPoint presentation, a true

4 and correct copy of which is annexed as Exhibit O to this Declaration.

5

5. On March 22, 2020, I sent a letter to counsel for Defendants outlining the

6 grave risk posed to Class Members by continuing to house them in congregate care as

7 well as the relief Plaintiff intended to request through an application for a TRO. On

8 March 23, 2020, I telephonically met and conferred with Benjamin M. Moss, Senior

9 Litigation Counsel for the Office of Immigration Litigation, one of the attorneys for the

10 Defendants in the above-entitled action,1 in an effort to obviate the need for Plaintiffs

11 to seek a temporary restraining order and to show cause re: preliminary injunction. I

12 advised counsel Moss of the substance of the attached ex parte application. I also

13 informed him that this application would be filed this week. Counsel Moss indicated on

14 the March 23, 2020 call that Defendants intended to oppose the ex parte application.

15

6. On March 24, 2020, Defendants’ counsel wrote Plaintiffs and advised,

16 inter alia, that “ORR has stopped placements of UACs2 in the states of California, New

17 York, and Washington.” To date, Defendants have not taken any action to expedite

18 resolution of this dispute which is endangering the health and lives of children at ORR

19 facilities.

20

7. Attached hereto as Exhibit A is a true and correct copy of the article by

21 Priscilla Alvarez and Catherine E. Shoichet, “First ICE detainee tests positive for

22 coronavirus,” CNN (Mar. 24, 2020), https://www.cnn.com/2020/03/24/us/ice-detainee-

23 coronavirus/index.html.

24

8. Attached hereto as Exhibit B is a true and correct copy of the Declaration

25 of Dr. Julie DeAun Graves, dated March 24, 2020.

26

27

1 Counsel Moss’ contact information is as follows: Office of Immigration Litigation, U.S. Department of Justice, Civil Division, P.O. Box 878, Ben Franklin Station,

28

Washington, DC 20044, (202) 307-8675, benjamin.m.moss2@usdoj.gov 2 “UACs” stands for Unaccompanied Children.

2

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1

9. Attached hereto as Exhibit C is a true and correct copy of the Declaration

2 of Dr. Jaimie Meyer, dated March 15, 2020. This declaration was originally prepared

3 for use in Velesaca v. Decker, No. 1:20-cv-1803 (S.D.N.Y. Mar. 16, 2020), as well as

4 in O.M.G. et al. v. Wolf et al., No. 1:20-cv-00786 (D.D.C. Mar. 21, 2020), and is

5 reproduced with permission of the author.

6

10. Attached hereto as Exhibit D is a true and correct copy of a letter to

7 Committee Chairpersons and Ranking Members of the United States Congress,

8 authored by Drs. Scott A. Allen and Josiah Rich, dated March 19, 2020, available at

9 https://whistleblower.org/wp-content/uploads/2020/03/Drs.-Allen-and-Rich-

10 3.20.2020-Letter-to-Congress.pdf.

11

11. Attached hereto as Exhibit E is a true and correct copy of the Declaration

12 of Dr. Nancy Y. Wang, dated March 24, 2020.

13

12. Attached hereto as Exhibit F is a true and correct copy of the Declaration

14 of Anthony Enriquez, Esq., dated March 24, 2020.

15

13. Attached hereto as Exhibit G is a true and correct copy of the Declaration

16 of Hannah P. Flamm, Esq., dated March 24, 2020.

17

14. Attached hereto as Exhibit H is a true and correct copy of the Declaration

18 of Rachel Rutter, Esq., dated March 23, 2020.

19

15. Attached here to as Exhibit I is a true and correct copy of the Declaration

20 of Dr. Mira Zein, dated March 23, 2020.

21

16. Attached hereto as Exhibit J is a true and correct copy of the Declaration

22 of Dr. Craig Haney, Ph.D, dated March 21, 2020.

23

17. Attached hereto as Exhibit K is a true and correct copy of the email entitled

24 “COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS” and attachments, sent

25 by the Office of Refugee Resettlement, Unaccompanied Children’s Program, Division

26 of Health for Unaccompanied Children on March 13, 2020.

27

18. Attached hereto as Exhibit L is a true and correct copy of the “Interim

28 Guidance on Management of Coronavirus Disease 2019 (COVID – 19) in Correctional

3

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1 and Detention Facilities, published by the Centers for Disease Control and Prevention

2 on March 23, 2020.

3

19. Attached hereto as Exhibit M is a true and correct copy of the Office of

4 Refugee Resettlement “UAC Manual of Procedures (UAC MAP).”

5

20. Attached hereto as Exhibit N is a true and correct copy of excerpts of the

6 Office of Refugee Resettlement Policy Guide, available at https://www.acf.hhs.gov/or

7 r/resource/children-entering-the-united-states-unaccompanied.

8

21. Attached hereto as Exhibit O is a true and correct copy of the Shiloh

9 PowerPoint Presentation defense counsel in Flores sent to me.

10

22. Attached hereto as Exhibit P is a true and correct copy of the Declaration

11 of James M. Owens, dated February 7, 2018.

12

I declare under penalty of perjury under the laws of the United States that the

13 foregoing is true and correct.

14

Executed on this 24th day of March, 2020, at Santa Clarita, California.

15

Respectfully submitted,

16

17

18

Carlos Holguín

19

20

21

22

23

24

25

26

27

28

4

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EXHIBIT A
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Page002

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Page003

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Page004

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Page005

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Page006

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EXHIBIT B
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1 I, Dr. Julie DeAun Graves, declare as follows: 2 3 1. This declaration is based on my personal knowledge, except as to those matters 4 based on information and belief, which I believe to be true. If called to testify in this case, 5 I would testify competently about these facts. 6 2. My name is Julie DeAun Graves. I am a physician licensed to practice medicine in 7 the states of Florida, Maryland, New Jersey, Texas, Virginia, Wisconsin, and in the 8 District of Columbia. I am currently working in family medicine and public health private 9 practice as the Associate Director of Clinical Services at Nurx. I have been certified by 10 the American Board of Family Medicine since 1989. 11 3. I am a public health physician, previously serving as Regional Medical Director for 12 the Texas Department of State Health Services for the Houston region, as Medical 13 Services Coordinator for the Texas Department of Aging and Disability Services, and as 14 a medical consultant to the Texas Medical Board. I managed the H1N1 influenza 15 outbreak for the Texas State Supported Living Centers and oversaw public health efforts 16 for the Houston region (population seven million) for Ebola virus, Zika virus, West Nile 17 virus, highly pathogenic avian influenza, tuberculosis outbreaks, and natural disasters. 18 4. I obtained my medical degree and completed a surgical internship then family 19 medicine residency at the University of Texas Southwestern Medical School in Dallas, 20 Texas, then completed a fellowship in faculty development at the McLennan County 21 Medical Education and Research Foundation in Waco, Texas. I earned a Master’s degree 22 in Public Health and a Doctor of Philosophy in Management, Policy, and Statistics at the 23 University of Texas School of Public Health. I have practiced family medicine and public 24 health since 1989, and in 2018-2019 I was Associate Professor and Vice-Chair for 25 Education at Georgetown University School of Medicine. At Nurx I care for patients 26 seeking contraception, HIV (human immunodeficiency virus) prevention, sexually 27 transmitted infection diagnosis and treatment, cervical cancer screening, and coronavirus 28 (SARS-CoV-2, the virus that causes COVID-19) testing and treatment. I am a former
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1 member of the Public Health Committee of the Texas Medical Association and a former 2 member of the Executive Board and current Governing Councilor of the American Public 3 Health Association. 4 5. During my over 30 years of medical practice I have cared for immigrant 5 populations in Florida, Maryland, Texas, Wisconsin, and Washington, DC, and I am co6 author of a research journal article about migrant workers’ health. While serving as 7 Regional Medical Director for the Texas Department of State Health Services I 8 collaborated with Department of Health and Human Services Office of Refugee 9 Resettlement (ORR) facilities on investigations and control of tuberculosis and measles 10 cases among detainees and provided public health services to those detainees and their 11 families. I am familiar with ORR facilities and the conditions faced by detained children 12 and by the staff members who work there. In August of 2019 I volunteered with a 13 Catholic Charities facility in Laredo, Texas and provided medical care to people just 14 released from detention in Customs and Border Patrol (CBP) facilities. I observed the ill 15 health, exhaustion, and malnutrition evident in these people. Additionally, because of my 16 work as Medical Services Coordinator for the Texas Department of Aging and Disability 17 Services overseeing health care in the State Supported Living Centers, which are 18 congregate living settings, I am familiar with the risks to residents and staff from any 19 infectious disease, and particularly those with high infectivity, such as this coronavirus 20 SARS-CoV-2. I attach a copy of my curriculum vitae. 21 22 COVID-19 23 6. COVID-19 is an illness caused by the SARS-CoV-2 virus, which is a novel 24 coronavirus that was first detected in humans during the outbreak (now a pandemic) we 25 are experiencing now. The Centers for Disease Control and Prevention reports that as of 26 March 24, 2020 at 6:00 a.m, there are 46,481 cases reported in the United States, with 27 cases reported in every state, and there are 593 reported deaths so far. See 28
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1 www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6. 2 On March 18, 2020, there were 7,038 cases reported and 150 deaths. 3 7. The United States is in the early stages of the pandemic, and because there has 4 been insufficient testing for cases, the reported cases numbers are lower than actual cases, 5 despite the high probability that there are many more infected individuals in the 6 population. The spread of the virus is faster and more dangerous when people are in close 7 quarters. People with health conditions such as diabetes, asthma, emphysema, heart 8 disease, kidney disease, pregnancy, diabetes, cancer, HIV, and autoimmune diseases such 9 as lupus and rheumatoid arthritis are at higher risk for severe illness, complications, and 10 death from COVID-19. People over age 60 have higher death rates, but severe cases of 11 illness and deaths are reported in people of all ages, including children. The ratio of cases 12 of COVID-19 to deaths from this illness is much higher than for other contagious 13 diseases such as influenza. The SARS-CoV-2 virus damages the lung tissue, which 14 means that even those who recover need prolonged medical care and rehabilitation. They 15 are likely to have permanent disability from loss of lung capacity. The heart itself can be 16 infected, and kidneys and the nervous system can also be impacted and damaged 17 permanently. 18 8. There is no vaccine and no treatment for COVID-19. We only have prevention as a 19 tool to stop the pandemic. If people remain in congregate settings, most of them plus the 20 staff who work with them will become infected, and many will die or have permanent 21 disability. COVID-19 is transmitted from person to person by breathing in expired air 22 that contains the droplets an infected person has coughed or the virus they have shed, or 23 by touching a surface with the virus on it, unless there is full personal protective 24 equipment: mask, gloves, gown, plus thorough hand washing before putting on the 25 equipment and after removing it. The only way to avoid transmission is for people to 26 distance themselves at least six feet from others (commonly referred to as “social 27 distancing” or “physical distancing”). People should not be in large buildings full of 28 many people, and people must practice frequent and thorough hand washing with
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1 adequate soap and water. If we do not implement these two steps – physical distancing 2 and hand washing – the pandemic will only continue to spread and the number of deaths 3 will continue to increase. 4 9. There is a national shortage of COVID-19 tests. Medical providers cannot test 5 everyone who they believe should be tested, and so are presuming that people with a 6 certain set of symptoms are positive. This is an appropriate and common situation with 7 new infectious diseases and is a widely recognized strategy in public health disease 8 control. Individuals and communities should not rely solely on the criteria of a positive 9 COVID-19 test to implement precautions or quarantine symptomatic persons. A public 10 health response requiring widespread preventive measure of physical distancing and 11 appropriate hand washing is our only tool to slow the spread of the virus. 12 13 HHS Facility Conditions 14 10. I am advised that Department of Health and Human Service Office of Refugee 15 Resettlement (ORR) typically houses many dozens, and in some cases hundreds, of 16 children in congregate facilities, where they share toilets, sinks, and showers, eat 17 together, participate in recreation and classroom instruction together, sleep in common 18 rooms, and have inadequate space to permit recommended physical distancing. In my 19 opinion, under current pandemic conditions such congregate settings are inherently 20 unsafe and unsanitary, and they become increasingly dangerous in proportion to the 21 number of children whom ORR places in such facilities. Other commonly reported 22 conditions, such the frequency of rotating staff members, further increase the risk that 23 children will contract COVID-19. 24 11. Congregate care facilities holding large numbers of people are particularly 25 dangerous during a pandemic. Physical distancing of six feet between all people is 26 essential to preventing the spread of COVID-19 disease. The virus is transmitted in 27 respiratory droplets and can hang in the air for several minutes – due to its tiny size (one 28 micron diameter) and its very light weight. The virus also can live on metal, glass,
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1 plastic, concrete, and other surfaces for up to ten days and maintain its infectivity. 2 Consistently maintaining the appropriate distance of six feet in addition to adequate 3 cleaning of all surfaces is not possible in such facilities. 4 5 Immigrant Population Vulnerabilities 6 12. Immigrants, particularly recently arrived children, are at particular risk of 7 contracting COVID-19. Common health problems afflicting children in different forms 8 of immigration custody (CBP, ICE, and ORR) include malnutrition, asthma, heart 9 disease, immunosuppression, inadequate vaccination, diarrheal illness, sleep disorders, 10 post-traumatic stress disorder, exhaustion, and seizure disorders. People with these 11 health issues are among those at high risk for serious illness and death if they contract 12 COVID-19. People with post-traumatic stress disorder have weakened immune systems 13 and increased vulnerability to infection. 14 15 ORR Guidance re: COVID-19 16 13. I have read and analyzed the March 13, 2020 “COVID-19 Interim Guidance for 17 ORR Programs” (ORR Guidance). While the document states that it “is based on the 18 Centers for Disease Control and Prevention (CDC) recommendations,” the policies 19 contravene multiple CDC recommendations and are inadequate to protect children 20 forced to live in congregate settings against COVID-19 illness. 21 14.Most importantly, the ORR Guidance makes no mention of social or physical 22 distancing between children or staff, nor of limiting the gathering of groups of children 23 or staff. As discussed above, there is widespread consensus in the public health 24 community that social distancing is critical to preventing the further spread of COVID25 19. 26 15.The CDC has repeatedly called for the American public to limit social interactions 27 and avoid gatherings in groups of more than 10 people. 28
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1 16.The ORR Guidance nowhere mentions that children should have independent 2 access to hand washing and sanitizing supplies. As discussed above, regular 3 handwashing with water and soap is critical to preventing the further spread of COVID4 19. 5 17.The ORR Guidance sets out no plan to manage spread of the disease when more 6 children need to be quarantined than isolation rooms can accommodate. 7 18.The ORR Guidance does not provide information on managing the spread of 8 disease among particularly vulnerable children, such as those with heart disease, 9 diabetes, asthma or other chronic respiratory disease, or those with compromised 10 immune systems. The Guidance directs no special measures to protect these populations. 11 The same protocols apply to all children whether or not they have an increased risk of 12 serious illness or death. 13 19.The ORR Guidance does not provide a screening or testing protocol for children 14 not deemed to be “at risk” but still exhibiting COVID-19 symptoms. If a child has a 15 fever, this would likely be caught by ORR’s twice-daily temperature check requirement. 16 However, if a child has a cough or shortness of breath and is not defined as “at risk” due 17 to no known COVID-19 exposure, then that may be a missed case that allows the virus 18 to spread. 19 20.It is my expert opinion that the policies expressed in the ORR Guidance are 20 inadequate and contrary to current CDC guidelines as well as public health practice 21 being adopted during the current pandemic. We are currently in an emergency situation. 22 Even if ORR issues more stringent guidance in the upcoming days or weeks, it will 23 likely be too late, especially for facilities located in areas of high community 24 transmission, such as New York and California. 25 CDC COVID-19 Guidance for Correctional and Detention Facilities 26 21. I have reviewed the CDC “Interim Guidance on Management of Coronavirus 27 Disease 2019 (COVID-19) in Correctional and Detention Facilities” (CDC Detention 28
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1 Facility Guidance) issued March 23, 2020, https://www.cdc.gov/coronavirus/20192 ncov/community/correction-detention/guidance-correctional-detention.html. The CDC 3 Detention Facility Guidance highlight many ways in which people in detention facilities 4 and congregate environments are at a higher risk of contracting COVID-19. 5 22. The CDC Detention Facility Guidance acknowledges that “(i)ncarcerated/detained 6 persons live, work, eat, study, and recreate within congregate environments, heightening 7 the potential for COVID-19 to spread once introduced.” Further, it states that “(t)here 8 are many opportunities for COVID-19 to be introduced into a correctional or detention 9 facility, including daily staff ingress and egress; transfer of incarcerated/detained 10 persons between facilities and systems, to court appearances, and to outside medical 11 visits; and visits from family, legal representatives, and other community members.” 12 23. The CDC Detention Facility Guidance instructs facilities to “implement social 13 distancing strategies to increase the physical space between incarcerated/detained 14 persons (ideally six feet between all individuals, regardless of the presence of 15 symptoms,” but acknowledges that “not all strategies will be feasible in all facilities.” 16 Social distancing does not work when it is only followed part of the time. The CDC’s 17 “Interim U.S. Guidance for Risk Assessment and Public Health Management of 18 Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with 19 Coronavirus Disease (COVID-19)” issued on March 7, 2020 states that “(d)ata are 20 insufficient to precisely define the duration of time that constitutes a prolonged 21 exposure. However, until more is known about transmission risks, it is reasonable to 22 consider an exposure greater than a few minutes as a prolonged exposure. Brief 23 interactions are less likely to result in transmission; however, clinical symptoms of the 24 patient and type of interaction (e.g., did the patient cough directly into the face of the 25 HCP) remain important” and “(e)xamples of brief interactions include: briefly entering 26 the patient room without having direct contact with the patient or their 27 secretions/excretions, brief conversation at a triage desk with a patient who was not 28 wearing a facemask.” Repeated interactions, even brief, that occur throughout the day in
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1 these facilities, are each an independent opportunity for transmission of infection. 2 Because it is not known whether people who have recovered from infection develop 3 immunity to subsequent infections with COVID-19, and because transmission may occur 4 when the infected person has no symptoms, each interaction between a staff member and 5 a detainee and each interaction between two individual detainees or two individual staff 6 members is an independent opportunity with the same risk of infection. The risks are 7 additive with each interaction. 8 24. The CDC Detention Facility Guidance states that “The ability of 9 incarcerated/detained persons to exercise disease prevention measures (e.g., frequent 10 hand washing) may be limited and is determined by the supplies provided in the facility 11 and by security considerations.” Facilities are instructed to provide no-cost access to 12 liquid soap (or bar soap), running water, and hand drying supplies. 13 25. Detention facilities are instructed to “(o)ffer the seasonal influenza vaccine to all 14 incarcerated/detained persons (existing population and new intakes) and staff throughout 15 the influenza seasons.” Preventing influenza cases in these facilities can speed the 16 detection of COVID-19 cases and reduce pressure on healthcare resources. 17 26. Even if all of the recommendations made in the CDC Detention Facility Guidance 18 are followed, the conditions of detention are such that detained children in ORR custody 19 would still be at high risk of contracting COVID-19. Because this virus is transmitted 20 through droplets, through the air, and on surfaces, and because people who do not have 21 symptoms but are infected transmit the virus to others, even one infected person in a 22 facility, either a detainee or a staff member, can infect the majority of people in the 23 facility. This is worsened by the crowded conditions in the facilities. 24 27. If we are to contain the spread of the COVID-19 virus, we must relocate as many 25 people as possible out of congregate settings. If we prevent people from practicing 26 adequate physical distancing from others and the other steps outlined above, institutional 27 centers will become clusters in which high percentages of persons are infected with 28
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1 COVID-19. Such clusters not only endanger those who are immediately infected, but the

2 health of those residing in the communities in which congregate facilities are located.

3

4 Recommendations

5 28. It is my professional opinion that all children held in ORR facilities should be

6 moved immediately to settings with adequate opportunity for safe distance and adequate

7 hand washing and sanitation, and be afforded a seasonal influenza vaccine immediately.

8 Even if ORR facilities intend to meet the guidance put forth by the CDC on March 23,

9 2020, they are not uniformly meeting it now, and so people are at risk for serious illness,

10 death, and disability today.

11 29. The Office of Refugee Resettlement should immediately expedite the release of

12 detained children to their sponsors. Once released, children should self-quarantine for 14

13 days in order to ensure that they are not exhibiting symptoms of COVID-19 and to

14 ensure the safety of their new communities. Reducing the population of children in ORR

15 facilities is critical to minimizing the risk for outbreaks in facilities and preventing the

16 spread of the virus to children, ORR staff members, and communities across the United

17 States.

18 30. To the extent there is absolutely no other option but for children to remain detained

19 in congregate settings, basic principles of public health require HHS to:

20

a. Allow each child enough space to maintain a distance of at least six feet from

21

others;

22

b. Ensure that all children have free and consistent access to water, soap, and

23

cleaning products;

24

c. Transfer children from high-density placements (facilities with 10 or more

25

children) to low-density placements;

26

d. Ensure that symptomatic children are immediately removed from the general

27

population and have prompt access to single-occupancy negative pressure

28

rooms plus adequate medical care;

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1

e. Ensure that facilities have plans in place if they have to quarantine more

2

children than there are single-occupancy rooms;

3

f. Provide staff and children with adequate personal protective equipment

4

including fit-tested N-95 masks and adequate instruction regarding proper

5

donning and doffing procedures. Require appropriate measures for children

6

who are not “at-risk” under ORR’s definition but are still exhibiting symptoms

7

consistent with COVID-19 and those who are at high-risk for serious illness due

8

to pre-existing conditions or compromised immune systems.

9 31. A principal objective of physical distancing and self-quarantine requirements is to

10 slow the spread of COVID-19 illness so as not to overwhelm available medical care

11 resources. I am advised that ORR may contract with congregate detention facilities in

12 rural areas, which typically have fewer medical resources than are to be found in large

13 towns and cities. An outbreak of COVID-19 disease in such facilities would quickly

14 overwhelm local health care resources, requiring ORR either to leave children untreated

15 or else transport them to distant hospitals and clinics, where they would risk spreading

16 the infection to more health care workers and the community in regions in which the

17 disease has yet to become prevalent. It is therefore in the public’s interest to remove as

18 many children from congregate care as soon as possible.

19 32. Even if all of the above recommendations for HHS facilities are followed, the

20 inherent conditions of congregate detention are such that detained children would still be

21 at high risk for exposure to COVID-19. In order to contain the spread of the COVID-19

22 virus, and to protect children, the government must relocate as many people as possible

23 out of HHS facilities.

24 33.I declare under penalty of perjury that the foregoing is true and correct. Executed

25 on March 24, 2020 in North Bay Village, Florida.

26

27

_____________________________________

28

Julie DeAun Graves

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Julie D. Graves, M.D., M.P.H., Ph.D., F.A.A.F.P.
Current positions:
Family medicine and public health physician in private practice
Associate Director of Clinical Services, Nurx
Education:
06/1979 Bachelor of Arts, Rice University, Houston, Texas Majors: Biology, Health and Physical Education
06/1983 Doctor of Medicine The University of Texas Southwestern Medical School, Dallas, Texas
12/1992 Master of Public Health The University of Texas Health Science Center (UTHealth) School of Public Health, Houston, Texas Concentration: Health Services Organizations Thesis: Preferences for Perinatal Health Decisions: A Critical Appraisal
12/2011 Doctor of Philosophy The University of Texas Health Science Center (UTHealth) School of Public Health, Houston, Texas Division of Management, Policy, and Community Health Major: Health Policy Minors: Management, Biostatistics Dissertation: Analysis of Policy Issues Surrounding the Electronic Medical Record
Medical licensure:
State: Texas
License No: G5110
Initial Date: 08/23/1983
Renewal/Expiration Date: 02/28/2020

State: Wisconsin License No: 53273 Initial Date: 06/23/2009 Renewal/Expiration Date: 10/31/2021

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State: Alabama License No: 12408 Initial Date: 10/22/1985 Renewal/Expiration Date: 12/31/1986
State: Nebraska License No: TX-G5110 Initial Date: 07/20/1985 Renewal/Expiration Date: 07/26/1985
State: Florida License No: ME134326 Initial Date: 10/25/2017 Renewal/Expiration Date: 01/31/2022
State: District of Columbia License No: MD045899 Initial Date: 02/26/2018 Renewal/Expiration Date: 12/31/2020
State: Maryland License No: D84791 Initial Date: 02/16/2018 Renewal/Expiration Date: 09/30/2020
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Certifications:
American Board of Family Medicine: Certificate Number 1070893973
Date certified: 07/1989 Dates of Re-certification: Jul 14, 1989 - Jul 13, 1995 Jul 14, 1995 - Jul 12, 2001 Jul 13, 2001 - Aug 01, 2008 Aug 02, 2008 - Apr 09, 2017 Apr 10, 2017 -12/2027
Advanced Cardiac Life Support 5/1983-12/94, 01/1997-12/2001, 01/2003-12/2018
Advanced Trauma Life Support 01/2003-12/2019
Pediatric Advanced Life Support 01/2004-12/2017
Languages Spoken English – mother tongue Spanish – basic medical German – basic
Previous Academic Appointments and Activities
03/2018-03/2019 Vice-Chair for Education, Department of Family Medicine, Georgetown University School of Medicine
05/2017-12/2017 Associate Professor of Epidemiology, University of Medicine and Health Sciences, St. Kitts and Nevis
06/2015-08/2019 Adjunct Associate Professor of Management, Policy, and Community Health, The University of Texas Health Science Center (UTHealth) School of Public Health
Lecturer: PH 3620, Principles and Practice of Public Health Lecturer: PH 5220, Gender and Leadership
Preceptor: Occupational Medicine Residency program
Dissertation Committee member: PhD student Stella Okoroafor, MD, MPH (in process)
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06/2015-05/17 Faculty, Texas Department of State Health Services Preventive Medicine Residency program
Infectious Diseases and Chronic Disease Preventive Lectures Series Coordinator
06/2014 Visiting Faculty, Tanzania Training Center for International Health
03/2013-08/2014 Associate Professor of Behavioral and Clinical Medicine and Public Health, University of Sint Eustatius School of Medicine
Course director: Epidemiology, Medical Ethics, Biostatistics
09/2012-08/2013 Adjunct Assistant Professor of Epidemiology, The University of Texas Health Science Center (UTHealth) School of Public Health
Dissertation Committee Member, DrPH student Christina Socias (completed)
Associate Professor of Behavioral and Clinical Medicine, American University of the Caribbean School of Medicine, Sint Maarten
Course director and principal faculty, Medical Ethics
Faculty, Introduction to Clinical Medicine
01/2012-09/2012 Assistant Professor of Family and Community Medicine, The University of Texas Health Science Center at San Antonio, Texas
06/2009-08/2009 Graduate Teaching Assistant, The University of Texas Health Science Center (UTHealth) School of Public Health
PH 3620 Principles and Practice of Public Health (on-line course)
11/2002-05/2005 Faculty physician, Austin Medical Education Programs, Family Medicine residency program, Austin, Texas
01/1995-12/1999 Clinical Assistant Professor of Family Medicine, Texas A&M University Brazos Valley Family Medicine residency program, College Station, Texas
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11/1992-05/1995 Clinical Assistant Professor of Family Medicine, Baylor College of Medicine, Houston, Texas
Obstetrics fellowship co-coordinator
08/1989-08/1991 Assistant Professor of Family and Community Medicine, The University of Texas Houston Health Science Center
Founding course director, Family Medicine Clinical Clerkship
Co-author, HRSA Primary care training grant
Research Activities
01/2012-09/2012 ReACH Scholar, Center for Research to Advance Community Health, University of Texas Health Science Center at San Antonio Project: Quality assurance using electronic health records Principle Investigator: Barbara J. Turner, MD, MSED, MSCP Internal funding.
01/2007-12/-2009 Research Associate, Health Policy Institute, University of Texas School of Public Health Projects: Translational research applications of public policy analysis; Food oases Principle investigators: Stephen Linder, PhD and Eduardo Sanchez, MD, MPH Internal funding
01/1991-12/1992 Research Associate, Center for Health Policy Studies, University of Texas School of Public Health Project: Health manpower analysis for primary care in Texas Principle investigators: Virginia Kennedy, PhD and Frank Moore, PhD Funding: Texas Higher Education Coordinating Board
08/1989-08/1991 Project staff, University of Texas Houston Health Science Center Project: Cholesterol reduction with high rice fiber diets Principle investigator: Mark E. Clasen, MD, PhD Funding: National Rice Council
09/1988-06/1989 Principle investigator, McLennan County Medical Education and Research Foundation Project: Obstetrical Practice by Texas Family Physicians Funding: Texas Higher Education Coordinating Board
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Governmental Public Health Practice
06/2017-3/2019 Consultant to Ministry of Health, St. Kitts and Nevis, for disaster preparedness and cannabis health effects
02/2015-05/2017 Regional Medical Director, Texas Department of State Health Services, Health Services Region 6/5S (Houston area, population 7 million)
01/2009-12/2011 Medical consultant, Texas Medicaid Office of Inspector General, Austin, Texas
01/2005-12/2012 Quality monitor and investigator, Texas Medical Board, Austin, Texas
09/2009-05/2011 Medical Services Coordinator for State Supported Living Centers, Texas Department of Aging and Disability Services, Texas (statewide)
Member, Institutional Review Board
05/2001-22/2002 Medical Consultant, Texas Department of Health, Children’s Health and Infectious Disease Epidemiology and Surveillance, Austin, Texas (statewide)
Chair, Institutional Review Board, Texas Department of Health
06/1995-12/1999 Educational consultant, Texas WIC (Women, Infants, and Children) nutrition program
01/1994-12/1995 Utilization Review Physician, Lone Star Texas Medicaid managed care program
Clinical Experience
04/2005-02/2015 and 06/2017 – 3/2018 Private practice of family, hospitalist, and emergency medicine, Texas, Sint Maarten, Croatia, Carnival Cruises
09/2005 - 11/2005 Emergency Room Physician, U.S. Army MEDDAC, Wuerzburg, Germany Combat Support Hospital
01/2000-12/2001 Medical Director, Mother's Milk Bank at Austin (volunteer, co-founder)
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09/1991-08/1992 Family physician, University of Houston student health service
09/1988-06/1989 Fellowship in Faculty Development, McClennan County Medical Education Research Foundation, Waco, Texas
06/1986-09/1988 Residency in Family Medicine, St. Paul Medical Center, Dallas, Texas
06/1985-05/1986 Locum tenens primary care and emergency medicine physician, CompHealth, Inc., Florida, Alabama, Nebraska, Texas
07/1984-05/1985 Residency training in Anesthesiology, University of Florida Shands Hospital, Gainesville, Florida
07/1983-06/1984 Internship in General Surgery, Parkland Memorial Hospital, Dallas, Texas
Private Sector
01/2009-12/2012 Principal, InGenius Strategies, LLC (health information technology consulting)
01/2005-12/2009 Consultant, Texas Medical Foundation Health Quality Institute (Medicare Quality Improvement Organization for Texas)
05/2005-08/2009 Chief Medical Officer, Practice IT, LLC (health information technology vendor)
01/1995-12/1996 Public policy advocacy, Texas Tobacco Education Project
Honors and Awards:
Outstanding Faculty, Texas Department of State Health Services Preventive Medicine Residency, 06/2017
Team Spirit Award, Texas Department of Health, 11/2002
C. Frank Webber Award for Excellence in Oncology, M.D. Anderson Cancer Center and the Texas Academy of Family Physicians, 05/1998
Fellow of the American Academy of Family Physicians, granted 09/1996
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Bibliography
Textbook chapters
1. Moy, Julie Graves. “Cardiac Arrest”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
2. Moy, Julie Graves. “Advanced Trauma Life Support”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
3. Moy, Julie Graves. “Domestic Violence”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
4. Moy, Julie Graves. “The Limping Child”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
5. Moy, Julie Graves. “Sickle Cell Anemia”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
6. Moy, Julie Graves. “Lymphomas and Leukemias”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
7. Moy, Julie Graves. “Common Problems in the Newborn”, in Swanson’s Family Practice Review, 6th Edition. Philadelphia: Elsevier Mosby, 2008.
8. Moy, Julie Graves, Pfenninger, John. “Peripheral Nerve Blocks and Field Blocks,” in Pfenninger JL, Fowler GC (eds.). Procedures for Primary Care Physicians. St. Louis, Missouri: Mosby, 1994, 2002.
9. Moy, Julie Graves. “Induction of Labor,” in Rakel RE. Conn’s Current Therapy. WB Saunders, 1997.
10. Moy, Julie Graves. “Development of Clinical Guidelines,” in Mengel M, Fields S (eds.). Guide to Clinical Expertise. New York: Plenum Press, 1996.
11. Moy, Julie Graves. “Bites and Stings,” in Taylor RB (ed.). Family Medicine: Principles and Practice. New York: Springer-Verlag, 1994.
12. Moy, Julie Graves. “Nasogastric Tube and Salem Sump Insertion,” in Pfenninger JL, Fowler GC (eds.). Procedures for Primary Care Physicians. St. Louis, Missouri: Mosby, 1994.
13. Moy, Julie Graves. “Informed Consent,” in Pfenninger JL, Fowler GC (eds.). Procedures for Primary Care Physicians. St. Louis, Missouri, Mosby, 1994.
14. Duiker SS, Moy, Julie Graves. “Dyspareunia,” in Griffith HW, Dambro M (eds.). The FiveMinute Clinical Consult. Philadelphia: Lea and Febiger, 1993 – 1997.
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15. Moy, Julie Graves, Duiker, SS. “Sexual Dysfunction in Women”, in Griffith HW, Dambro M (eds.). The Five-Minute Clinical Consult. Philadelphia: Lea and Febiger, 1993, 1994, 1995.
16. Duiker SS, Moy, Julie Graves. “Community Intervention Strategies in Preventive Cardiology,” in Fuentes F (ed.). Preventive Cardiology Computer Modules, Houston: University of Texas Houston Health Science Center, 1991.
Peer-reviewed publications
1. Nguyen DT, Teeter LD, Graves J, Graviss EA. Characteristics Associated with Negative Interferonγ Release Assay Results in Culture-Confirmed Tuberculosis Patients, Texas, USA, 2013–2015. Emerging Infectious Diseases. Volume 24, Number 3—March 2018.
2. Liu EL, Morshedi B, Miller BL, Isaacs SM, Fowler RL, Chung W, Blum R, Ward B, Carlo J, Hennes H, WEbseter F, Perl T, Noah C, Monaghan R, Tran AH, Benitez F, Graves J, Kibbey C, Kelin KR, Swienton RE. Dallas MegaShelter Medical Operations Response to Hurricane Harvey. Disaster Medicine and Public Health Preparedness. 2017 Dec 6:1-4.
3. Wiseman R, Weil L, Lozano C, Johnson T, Jin S, Moorman AC, Foster MA, Mixcon-Hayden T, Khudyahov Y, Kuhar DT, Graves JG. Healthcare-associated Hepatitis A Outbreak, Texas, 2015. MMWR, April 29, 2016 / 65(16);425–426.
4. Socias C, Liang Y, Delclos G, Graves J, Hendrickson E, Cooper S. The Feasibility of Using Electronic Health Records to Describe Demographic and Clinical Indicators of Migrant and Seasonal Farmworkers. Journal of Agromedicine, 21:71-81, 2016.
5. Moy, Julie Graves. Texas State-wide Health Information Technology Policy in 2007: Regional and constituency-specific initiatives move forward, but risk failure without coordination and funding from state government. Texas Medicine 105(1):55-63, 2009.
6. Moy, Julie Graves. Spirometry in Urgent Care. Urgent Care, May 2007.
7. Holleman W, Holleman MC, Moy, Julie Graves. Continuity of Care and Ethics in Managed Care. Archives of Family Medicine, 1999;8.
8. Mullen PD, Pollack KI, Titus JP, Sockrider MM, Moy, Julie Graves. Smoking Cessation Practices of Texas Obstetricians. Birth, 1998; 25:25-30.
9. Roberts R, Bell H, Wall E, Moy, Julie Graves, Hess G, Bower G. Trial of Labor or Repeat Caesarean Section: The Woman’s Choice. Archives of Family Medicine. 1997;6:120-125.
10. Holleman W, Holleman MC, Moy, Julie Graves. Managed Care and Ethics: A Match Made in Heaven or Strange Bedfellows? The Lancet 1997; February 8.
11. Moy, Julie Graves, Realini JP. Guidelines for Preventive Therapy with Estrogen and Progesterone for Postmenopausal Women. Journal of the American Board of Family Practice 1993;6:153-162.
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12. Berg AO, Moy, Julie Graves. Policy Review: Guidelines for the Diagnosis and Treatment of Asthma. Journal of the American Board of Family Practice 1992;5:629-634.
13. Moy, Julie Graves, Clasen ME. The Patient with Gonococcal Infection. Primary Care 1990;17:5983.
14. McCraney, Julie Graves. The Status of Obstetrical Practice by Texas Family Physicians. Texas Medicine 1989;86:53-6.
Monographs, non-refereed publications, government reports, and published abstracts
1. Moy, Julie Graves, Sanchez E. Food Oases: A White Paper. University of Texas School of Public Health Institute for Health Policy. May 2008.
2. Moy, Julie Graves. Texas End-of-Life Care Law. Texas Medical Association, 2005.
3. Kaye CI, Cody JD, Canfield M, Martinez J, Van de Putte L, Moy, Julie Graves, Borg M, Stanley S, Wang J, Visio P. The Development of the Texas State Genetics Plan and a Plan for Integrated Data Infrastructure for Genetic Service. University of Texas Health Science Center at San Antonio and Texas Department of Health, 2002
4. Moy, Julie Graves. Medical Ethics and Professionalism. Texas Medical Association, February 1999, updated 2004.
5. Moy, Julie Graves. Family Physicians on the Internet. Texas Family Physician 1996, January/ February.
6. Moy, Julie Graves. Catastrophe Theory and Chaos: A Means to Understand What Happens in the Clinical Setting. North American Primary Care Research Group Annual Meeting, San Diego, California, November 1993. Abstract.
7. Grimes R, Brimlow D, Moy, Julie Graves. HIV/AIDS Interdisciplinary Clinical Preceptorships: Design, Implementation, and Evaluation. American Public Health Association, 1991. Abstract.
8. Grimes R, Moy, Julie Graves. Clinical Mini-Residency for Primary Care Medical School Faculty. AIDS Education and Training Centers Annual Meeting, San Francisco, California, December 14, 1991.
9. Moy, Julie Graves, Fowler GC. Sexually Transmitted Disease. Home Study Self-Assessment Program, number 149. American Academy of Family Physicians, October 1991.
10. Moy, Julie Graves. Impact of Medicare Reform upon Family Medicine Research. Society of Teachers of Family Medicine Research News 1990:3:1-3.
11. McCraney, Julie Graves. The Role of the Family Physician in the Management of Breastfeeding. Texas Family Physician 1989, May/June.
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12. McCraney, Julie Graves. The Resource-Based Relative Value Scale. Texas Family Physician 1989, March/April. 13. McCraney, Julie Graves. A Resident Considers AIDS. Texas Family Physician 1988, May/June.
Letters to the Editor 1. Moy, Julie Graves. Flu Season Offers Opportunities to Keep Patients Healthy and out of the Hospital. Travis County Medical Association Journal, 2003; 49:18-19. 2. Moy, Julie Graves. Putting babies “back to sleep”. Journal of the American Medical Association. 1999 March 17:281 (11): 983. 3. Moy, Julie Graves, Rourke J. Physician’s Breastfeeding Course in Texas. Academy of Breastfeeding Medicine News and Views 1996:2(1). 4. Moy, Julie Graves. Who Practices in the ER? Health Affairs. March 2008 27:2w84-w95.
Service on State and National Panels and Committees: Health Policy Panel Membership 1. Texas Department of Health Panel on Infant Feeding (co-author, Texas Department of Health Position Statement on Infant Feeding) 1997 2. National Heritage Insurance Company Medical Affairs Committee on Pilot Managed Care Program for Texas Medicaid Program 1994 3. National Institutes of Health Consensus Panel on Treatment of Cervical Dysplasia, Bethesda System Classification Development Team (Report published in the Journal of the American Medical Association 1994: 271, Kurman et al.) 1994 4. Rand Corporation / Health Care Financing Administration Medicaid Necessity, Outcomes, and Appropriateness Study on Pediatric Asthma 1992 5. Texas Department of Human Services Physician Payment Advisory Committee 1990 6. March of Dimes National Committee on Perinatal Health (co-author, Toward Improving the Outcomes of Pregnancy, monograph published by March of Dimes, 1993) 7. Texas Department of Human Services Indigent Care Advisory Committee 1989
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Policy Reviews for American Academy of Family Physicians Task Force on Clinical Policies 1990-94
1. Agency for Health Care Policy and Research Pressure Sore Panel
2. National Heart, Lung, and Blood Institute Panel on Treatment of Asthma During Pregnancy and Lactation
3. National Heart, Lung, and Blood Institute Guidelines for the Diagnosis and Treatment of Asthma
4. American Academy of Ophthalmology Policy on Strabismus
5. Expert Panel on Preventive Services paper on Iron Supplementation During Pregnancy
6. Expert Panel on Preventive Services paper on Testing for D Isoimmunization in Pregnancy
7. American Academy of Pediatrics practice parameter on Treatment of Acute Asthma Exacerbation in Children
8. American Academy of Pediatrics practice parameter on Hyperbilirubinemia in the Newborn Service on Medical School Committees:
Member, Practice Council, The University of Texas Health Science Center (UTHealth) School of Public Health at Houston, 2014 -present
Member, Council on Education for Public Health (CEPH) Expanded Steering Committee, The University of Texas Health Science Center (UTHealth) School of Public Health at Houston, 2016.
Member, Curriculum Committee, The University of Texas Health Science Center Medical School, 1990
Vice-chair, Institutional Review Board, University of Medicine and Health Sciences, St. Kitts and Nevis, 2017

Editorial Review for Medical Journals:

2018-present Peer Reviewer, American Family Physician

2017-present Peer Reviewer, Texas Public Health Association Journal

2001-2016 Peer Reviewer, Journal of Family Practice

2010-2017 Peer Reviewer, Family Practice Management

1997

Peer Reviewer, Feminist Economics Page030

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1995-1998 Editorial Review Board, Journal of Human Lactation
1994-1997 Peer Reviewer, American Family Physician
1993-2013 Peer Reviewer, Texas Medicine
1992-1997 Peer Reviewer, Archives of Family Medicine
1992-1995 Peer Reviewer, Family Medicine
1990-1993 Editorial Committee, Texas Medicine
1988-1989 Editor, Texas Family Physician “Resident Forum”
Presentations at Scientific Meetings:
1. Garrison R, Graves J. An Analysis of Barriers to Care for Patients Requiring Rabies Postexposure Prophylaxis in Texas Department of State Health Services Region 6/5S. Texas Public Health Association 93rd Annual Meeting. March 27, 2017, Fort Worth, Texas
2. Ramsey J, Mayes B, Graves J. Demographics of Child Fatality in Rural Southeast Texas. Texas Public Health Association 93rd Annual Meeting. March 27, 2017, Fort Worth, Texas (poster)
3. Jones R, Abrego D, Deeba R, Varghese C, LaBar C, Mayes B, Graves J. Public Health Prevention Needs for Domestic Minor Sex Trafficking in Rural Southeast Texas Counties. Texas Public Health Association 93rd Annual Meeting. March 27, 2017, Fort Worth, Texas
4. Graves J. Vector-borne Disease Public Policy. South Texas Tropical Medicine and Vector Borne Disease conference. February 24, 2017. South Padre Island, Texas
5. Martinez D, Jin S, Milligan S, Haynie A, Arenare B, Wiseman R, Weil L, Lozano C, Johnson T, Graves J. Investigation of a healthcare associated Hepatitis A cluster in and nearby Harris County, Texas. Council of State and Territorial Epidemiologists Annual Meeting. June 2017. Anchorage Alaska (poster).
6. Lin H, Weil L, Evans D, Shaw D, Rosen G, Graves J. Regional Epidemiology Coordination Plan: effective use during a multijurisdictional outbreak investigation. Texas Public Health Association 92nd Annual Education Conference, April 2016, Galveston, Texas
7. Rosen G, Lin H, Swanson K, Shaw D, Weil L, Evans D, Graves J. Local challenges to state policy: Evaluating the interim guidance for monitoring and movement of persons with potential Ebola Virus exposure in Southeast Texas --October-December, 2014. American Public Health Association Annual Meeting, October 2015, Chicago, Illinois.
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8. Graves J. Health Information Technology Policy in Germany, Switzerland, and Austria: Lessons for US Policy Makers. American Public Health Association Annual Meeting, San Diego, California, October 2012
9. Graves J, Sanchez E. Meeting the Health Needs of the Emerging Majority: Applying Lessons Learned from Border Health Programs to Eliminate Health Disparities throughout the U.S. American Public Health Association Annual Meeting, San Diego, California, October 2008
10. Graves J, Aday L. Decision Analysis and Preferences for Perinatal Health States. Agency for Health Care Policy and Research Third Primary Care Conference. Atlanta, Georgia, January 1993
11. Moy, Julie Graves, Susman J, Berg A. Critiquing Clinical Policies. Society of Teachers of Family Medicine Annual Meeting, San Diego, California, April 1993
12. Moy, Julie Graves, Schindler J, Duiker SS. Teaching Ambulatory Care in the Urban Setting, American Association of Medical Colleges Southern Group for Educational Affairs, Houston, Texas, April 1991
13. Moy, Julie Graves, Clasen ME, Donnelly J. Implementation of a Required Third year Clerkship in Family Medicine after Legislative Directive. Society of Teachers of Family Medicine Predoctoral Education Conference, San Antonio, Texas, February 1991.
14. Moy, Julie Graves, Goertz R. Legislative Directive for a Third year Family Medicine Clerkship. Society of Teachers of Family Medicine, Seattle Washington, May 1990.
15. Conard S, Dahms L, McCraney, Julie Graves. Stress in Residency: External Causes, Manifestations, and Impairment in Family Medicine as Compared to Other Specialties. Texas Academy of Family Physicians, Austin, Texas, September 1988, first place; also at American Academy of Family Physicians, Los Angeles, October 1988.
Invited Lectures
1. The US Health Care System in Transition. University of Medicine and Health Sciences Health Policy Lecture Series. July 13, 2017. Basseterre, St. Kitts and Nevis.
2. Legislative Issues Regarding Syndromic Surveillance. Texas Health Information Management Systems Society Legislative Conference. April 12, 2017, Austin, Texas.
3. Cross-Jurisdictional Coordination for Super Bowl LI Planning. Local Health Authorities Symposium. Texas Public Health Association 93rd Annual Meeting. March 27, 2017, Fort Worth, Texas
4. Texas Syndromic Surveillance System. Health Information Management Systems Society, Austin Chapter, August 9, 2016
5. A Congressional Forum on the Zika Virus and a Discussion of an Action Plan for Houston and Harris County. Good Neighbor Health Clinic, Houston, March 10, 2016. Page032

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6. Telemedicine for Children with Special Health Care Needs. Caring for Children with Special Health Care Needs in Medicaid Managed Care, Texas Health and Human Services Commission, Austin, Texas, March 8, 2002. With Nora Taylor Belcher
7. Medicaid and Managed Care. Women in Government Forum on Medicaid, Austin, Texas, September 16, 1995.
8. Managed Care and Managed Competition. Southeast Texas Chapter of the International Patient Education Council, University of Texas MD Anderson Cancer Center, June 2, 1993.
9. AIDS and Adolescents: HIV Policy Concerns. National Conference of State Legislatures Women’s Network, Mobile, Alabama, May 20, 1993.
10. Vaginal Birth after Cesarean. Visiting Professor in Perinatal Health, University of Kansas School of Medicine Perinatal Conference, Kansas City, Kansas, April 3, 1992.
11. The Development of Medical Specialties in America. History of Medicine Lectures, University of Texas Houston Health Science Center, April 25, 1991.
Presentations at Professional Development Courses
1. Analysis of Policy Issues Surrounding the Electronic Medical Record. Grand Rounds. University of Texas Health Science Center at San Antonio. October 14, 2011. One hour Category I credit.
2. Barriers to Preventive Care for Women with Disabilities. Center for Health Disparities Annual Conference, University of North Texas Health Science Center, Ft. Worth, Texas, May 8, 2010. One hour Category I credit.
3. Clinical Indicators in Medicare’s Hospital Quality Improvement Project. Houston, Texas. January 13, 2006. One hour Category I credit.
4. Recent Changes to Texas End-of-Life Care Law. St. David’s Medical Center, Austin, Texas. October 12, 2004. One hour Category I credit, one hour Texas Ethics credit.
5. Aggressive Treatment of Type II Diabetes: What’s New in Type II Diabetes and Improving Chronic Disease Management Care with a Systems Approach. Texas Academy of Family Physicians. El Paso, Texas, May 2002. Two hours Category I credit.
6. Update in Medical Ethics and Professionalism. Central Texas Continuing Education Consortium. Austin, Texas, October 1999. One hour Category I credit.
7. Breastfeeding Update. Grand Rounds. Columbia Bayshore Medical Center, Pasadena, Texas, July 16, 1998. One hour Category I credit.
8. Breastfeeding in Special Circumstances. American Academy of Family Physicians Annual Session September 17, 1997, Chicago IL, 1 hour prescribed credit. Taught again in Annual Session in 1998. Page033

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9. Breastfeeding Update. Presbyterian Hospital Combined Obstetrics/Pediatrics conference, April 1997, 1 hour AMA Category I credit.
10. Intensive Course in Breastfeeding: Lactation Management Workshop for Physicians. April 24, 1996, Houston, Texas. Four hours AAFP credit. Taught again Harlingen, Texas; Tyler, Texas; San Antonio, Texas, Dallas, Texas, Sugar Land, Texas in 1996, 1997, with Linda Zeccola, Tom Hale, Joanie Fischer, and Maryelle Van Landen
11. Intensive Course in Breastfeeding. March 11, 1996, Midland, Texas. Four hours continuing nursing education credit. Taught again in Gallup, New Mexico and Boise, Idaho.
12. Breastfeeding: Improving the Support System. Hermann Hospital/UT Houston Medical School Annual Perinatal Conference, Houston, Texas June 1996, 1 hour AMA credit.
13. Breastfeeding Update. Women’s Hospital, Houston, Texas, September 1996, 1 hour AMA Category I.
14. Breastfeeding: Enlightening the Myths. Abilene Perinatal Conference, October 1996, 1 hour AMA Category I credit.
15. Family Oriented Prenatal Care. Baylor College of Medicine Advances in Family Medicine. January 20, 1995. 1/2 hour prescribed credit.
16. American Academy of Family Physicians Clinical Policies Training Course. San Diego, California, April 1993. 9.5 hours prescribed credit, with Hanan Bell
17. Preference/ Utility Assessment in Outcomes Research. Agency for Health Care Policy and Research Third Primary Care Conference, Atlanta, Georgia, January 10, 1993. 1 hour prescribed credit.
18. Hormone Replacement Therapy. Clinical Recommendations Update at American Academy of Family Physicians Scientific Assembly, Orlando Florida, October 1993. 2 hours prescribed credit.
19. Problems and Solutions in Integrating Clerkship Teaching with Residency Education. McLennan County Medical Education and Research Foundation Program Management Conference, Austin, Texas, May 18, 1990. 1 hour prescribed credit, with Donald Koester
20. The Status of Obstetrical Practice by Texas Family Physicians: Implications for Residency Training. McLennan County Medical Education and Research Foundation Program Management Conference, Austin, Texas, February, 1989. 1 hour prescribed credit.
21. The Genogram in Prevention. University of Texas Houston Health Science Center/ Texas Academy of Family Physicians Prevention for the Nineties Conference, Houston, Texas, October 30, 1989. 1 hour prescribed.
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Professional Organizations:

American Public Health Association 1992-present

2020-2023 Governing Councilor

2015-2016 Joint Policy Committee member; Co-chair, 2016

2016

Executive Board member, ex officio

2014-2017 Submission Review for Annual Scientific Meeting

2012-2016 Science Board member; Chair, 2016

Medical Care Section (Mentoring Chair 2018)

International Health Section

Florida Public Health Association 2019-present

Florida Medical Association 2019-present

Travis County Medical Society 1995-2014 1998-2001 Committee on Legislation; Chair 1999-2000 1996-1999 Alternate Delegate to Texas Medical Association

Harris County Medical Society 1989-1995 and 2015-2016

2015-2016 Committee on Communication and Public Health

2015-2016 Emergency Care Committee, ex officio

1995

Delegate to Texas Medical Association

1994-1995 Board of Medical Legislation

1990-1995 Committee on Membership and Medical Precepts

1992-1993 Executive Board, Central Branch

1991-1994 Alternate Delegate to Texas Medical Association

1991

Medical Student Committee

1991

Chair, Young Physicians Section

2015–present Committee on Communications and Public Health

Texas Medical Association 1987-2016

1995-2001 TexPAC (political action committee) Board of Directors

1994

Task Force on Hospital Staff-County Medical Society Relations

1993-1994 ad hoc Committee on Practice Parameters

1998

Council on Public Health

1991-1992 ad hoc Committee on International Medical Graduate Issues

1990-1994 TexPAC (political action committee) Vice-chairman

1990-1991 Young Physicians Governing Council

1989

Chairman, McLennan County MediCaring Task Force

1989-1991 Committee on Manpower

1989

Council on Socioeconomics

1987-1988 Committee on Health Insurance

American Medical Association 1987-1999, 2006-2008, 2010 -2011

1991

Executive Committee and Founding Member, Women’s Caucus

1989-1994 Medical Schools Section, Delegate for University of Texas Health Science Center,

Houston

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American Academy of Family Physicians 1987-present 1993-1999 Peer Reviewer, Home Study/Self-Assessment Program 1991-1995 Task Force on Clinical Policies for Patient Care; Executive Committee 1993-1994 Vaginal Birth after Caesarean Section Policy Team

Texas Academy of Family Physicians 1987-2016

1997 -1998 Task Force on Governance

1997

Task Force on Computers

1996

Task Force on Health System Reform

1997

Committee on Public Health and Scientific Affairs Chairman, 1995-1997

1994-1996 Committee on Legislation and Public Policy Vice-chair, 1996

1990

Vice-Chairman, Student Affairs Committee

Names used due to marriage:
Julie Graves 1957-1984 and 2012 - present Julie Graves McCraney 1984 - 1999 Julie Graves Moy 1999 – 2012

Address
8000 West Drive, #314 North Bay Village, FL 33141
Email: drjuliegraves@gmail.com
Telephone
512-689-8001

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(;+,%,7&
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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
1
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7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
2
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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

March 1__5, 2020 New Haven, Connecticut

_____________ __________ Dr. Jaimie Meyer

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      (;+,%,7$        
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Jaimie Meyer, MD, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

1
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Jaimie Meyer, MD, MS, FACP

2006 2005 2005 2000 2000

NY Columbia Presbyterian, John N. Loeb Intern Award American Medical Women’s Association, Medical Student Citation Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

Women’s Faculty Forum, Public Voices Thought Leadership Program Fellow

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

2
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Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

3
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Jaimie Meyer, MD, MS, FACP

Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With

Yale:

International/National

2019: 2019: 2018:
2018: 2016: 2010:

CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special OUD Populations" US Commission on Civil Rights, Washington, DC. "An Analysis of Women’s Health, Personal Dignity and Sexual Abuse in the US Prison System" College of Problems on Drug Dependence, College of Problems on Drug Dependence, San Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

4
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Jaimie Meyer, MD, MS, FACP
Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"
Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale: International/National
2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications"
2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence, Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant?"
2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"
2019: 11th International Women’s and Children’s Health and Gender (InWomen’s) Group, InWomen’s Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan"
2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons"
2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.”"
2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus"
2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to Die: Elevated Mortality in People with HIV after Incarceration"
2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut"
2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration"
5
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Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From prison’s gate to death’s door: Survival analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

6
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Jaimie Meyer, MD, MS, FACP

2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

7
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Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Reviewer, Women’s Health Issues Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Reviewer, BMC Women’s Health

8
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Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Reviewer, International Journal of Women’s Health Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Reviewer, Journal of Women’s Health Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

American Medical Women’s Association 2011 - present Member, American Medical Women’s Association

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

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Jaimie Meyer, MD, MS, FACP
Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society
Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America
InWomen’s Network, NIDA International Program 2013 - present Member, InWomen’s Network, NIDA International Program
New York State Medical Society 2005 - 2008 Member, New York State Medical Society
Yale University Service University Committees 2016 - 2018 Council Member, Leadership Council, Women’s Faculty Forum
Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

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Jaimie Meyer, MD, MS, FACP
4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
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Jaimie Meyer, MD, MS, FACP
18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
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Jaimie Meyer, MD, MS, FACP
33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
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Jaimie Meyer, MD, MS, FACP
Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314.
Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and
Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health
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EXHIBIT D
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Scott A. Allen, MD, FACP Professor Emeritus, Clinical Medicine University of California Riverside School of Medicine Medical Education Building 900 University Avenue Riverside, CA 92521

Josiah “Jody” Rich, MD, MPH Professor of Medicine and Epidemiology, Brown University Director of the Center for Prisoner Health and Human Rights Attending Physician, The Miriam Hospital, 164 Summit Ave. Providence, RI 02906

March 19, 2020

The Honorable Bennie Thompson Chairman House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Ron Johnson Chairman Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Mike Rogers Ranking Member House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Gary Peters Ranking Member Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Carolyn Maloney Chairwoman House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

The Honorable Jim Jordan Ranking Member House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

Dear Committee Chairpersons and Ranking Members:
We are physicians—an internist and an infectious disease specialist—with unique expertise in medical care in detention settings.1 We currently serve as medical subject matter experts for the
1 I, Dr. Scott Allen, MD, FACP, am a Professor Emeritus of Medicine, a former Associate Dean of Academic Affairs and former Chair of the Department of Internal Medicine at the University of California Riverside School of Medicine. From 1997 to 2004, I was a full-time correctional physician for the Rhode Island Department of Corrections; for the final three years, I served as the State Medical Program. I have published over 25 peer-reviewed papers in academic journals related to prison health care and am a former Associate Editor of the International Journal of Prisoner Health Care. I am the court appointed monitor for the consent decree in litigation involving Page 1 of 7
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Department of Homeland Security’s Office of Civil Rights and Civil Liberties (CRCL). One of us (Dr. Allen) has conducted numerous investigations of immigration detention facilities on CRCL’s behalf over the past five years. We both are clinicians and continue to see patients, with one of us (Dr. Rich) currently providing care to coronavirus infected patients in an ICU setting.
As experts in the field of detention health, infectious disease, and public health, we are gravely concerned about the need to implement immediate and effective mitigation strategies to slow the spread of the coronavirus and resulting infections of COVID-19. In recent weeks, attention has rightly turned to the public health response in congregate settings such as nursing homes, college campuses, jails, prisons and immigration detention facilities (clusters have already been identified in Chinese and Iranian prisons according to news reports2 and an inmate and an officer have reportedly just tested positive at New York’s Rikers Island).3 Reporting in recent days reveals that immigrant detainees at ICE’s Aurora facility are in isolation for possible exposure to coronavirus.4 And a member of ICE’s medical staff at a private detention center in New Jersey has now been reported to have tested positive for coronavirus.5
We have shared our concerns about the serious medical risks from specific public health and safety threats associated with immigration detention with CRCL’s Officer Cameron Quinn in an initial letter dated February 25, 2020, and a subsequent letter of March 13, 2020. We offered to
medical care at Riverside County Jails. I have consulted on detention health issues both domestically and internationally for the Open Society Institute and the International Committee of the Red Cross, among others. I have worked with the Institute of Medicine on several workshops related to detainee healthcare and serve as a medical advisor to Physicians for Human Rights. I am the co-founder and co-director of the Center for Prisoner Health and Human Rights at Brown University (www.prisonerhealth.org), and a former Co-Investigator of the University of California Criminal Justice and Health Consortium. I am also the founder and medical director of the Access Clinic, a primary care medical home to adults with developmental disabilities.
I, Dr. Josiah (Jody) Rich, MD, MPH, am a Professor of Medicine and Epidemiology at The Warren Alpert Medical School of Brown University, and a practicing Infectious Disease Specialist since 1994 at The Miriam Hospital Immunology Center providing clinical care for over 22 years, and at the Rhode Island Department of Corrections caring for prisoners with HIV infection and working in the correctional setting doing research. I have published close to 190 peer-reviewed publications, predominantly in the overlap between infectious diseases, addictions and incarceration. I am the Director and Co-founder of The Center for Prisoner Health and Human Rights at The Miriam Hospital (www.prisonerhealth.org), and a Co-Founder of the nationwide Centers for AIDS Research (CFAR) collaboration in HIV in corrections (CFAR/CHIC) initiative. I am Principal Investigator of three R01 grants and a K24 grant all focused on incarcerated populations. My primary field and area of specialization and expertise is in the overlap between infectious diseases and illicit substance use, the treatment and prevention of HIV infection, and the care and prevention of disease in addicted and incarcerated individuals. I have served as an expert for the National Academy of Sciences, the Institute of Medicine and others. 2 Erin Mendel, “Coronavirus Outbreaks at China Prisons Spark Worries About Unknown Clusters,” Wall Street Journal, February 21, 2020, available at: https://www.wsj.com/articles/coronavirus-outbreaks-at-china-prisonsspark-worries-about-unknown-clusters-11582286150; Center for Human Rights in Iran, “Grave Concerns for Prisoners in Iran Amid Coronavirus Outbreak,” February 28, 2020, available at https://iranhumanrights.org/2020/02/grave-concerns-for-prisoners-in-iran-amid-coronavirus-outbreak/. 3 Joseph Konig and Ben Feuerherd, “First Rikers Inmate Tests Positive for Coronavirus” New York Post. March 18, 2020, available at: https://nypost.com/2020/03/18/first-rikers-island-inmate-tests-positive-for-coronavirus/ 4 Sam Tabachnik, “Ten detainees at Aurora’s ICE detention facility isolated for possible exposure to coronavirus,” The Denver Post, March 17, 2020, available at https://www.denverpost.com/2020/03/17/coronavirus-ice-detentiongeo-group-aurora-colorado/. 5 Emily Kassie, “First ICE Employees Test Positive for Coronavirus,” The Marshall Project, March 19, 2020, available at https://www.themarshallproject.org/2020/03/19/first-ice-employees-test-positive-for-coronavirus
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work with DHS in light of our shared obligation to protect the health, safety, and civil rights of detainees under DHS’s care. Additionally, on March 17, 2020 we published an opinion piece in the Washington Post warning of the need to act immediately to stem the spread of the coronavirus in jails and prisons in order to protect not only the health of prisoners and corrections workers, but the public at large.6
In the piece we noted the parallel risks in immigration detention. We are writing now to formally share our concerns about the imminent risk to the health and safety of immigrant detainees, as well as to the public at large, that is a direct consequence of detaining populations in congregate settings. We also offer to Congress, as we have to CRCL, our support and assistance in addressing the public health challenges that must be confronted as proactively as possible to mitigate the spread of the coronavirus both in, and through, immigration detention and congregate settings.
Nature of the Risk in Immigration Detention and Congregate Settings
One of the risks of detention of immigrants in congregant settings is the rapid spread of infectious diseases. Although much is still unknown, the case-fatality rate (number of infected patients who will die from the disease) and rate of spread for COVID-19 appears to be as high or higher than that for influenza or varicella (chicken pox).
In addition to spread within detention facilities, the extensive transfer of individuals (who are often without symptoms) throughout the detention system, which occurs with great frequency in the immigration context, could rapidly disseminate the virus throughout the entire system with devastating consequences to public health.7
Anyone can get a coronavirus infection. While healthy children appear to suffer mildly if they contract COVID-19, they still pose risk as carriers of infection, particularly so because they may not display symptoms of illness.8 Family detention continues to struggle with managing outbreaks of influenza and varicella.9 Notably, seven children who have died in and around
6 Josiah Rich, Scott Allen, and Mavis Nimoh, “We must release prisoners to lessen the spread of coronavirus,” Washington Post, March 17, 2020, available at https://www.washingtonpost.com/opinions/2020/03/17/we-mustrelease-prisoners-lessen-spread-coronavirus/. 7 See Hamed Aleaziz, “A Local Sheriff Said No To More Immigrant Detainees Because of Coronavirus Fears. So ICE Transferred Them All To New Facilities,” BuzzFeed News, March 18, 2020 (ICE recently transferred170 immigrant detainees from Wisconsin to facilities in Texas and Illinois. “’In order to accommodate various operational demands, ICE routinely transfers detainees within its detention network based on available resources and the needs of the agency…’ an ICE official said in a statement.”), available at https://www.buzzfeednews.com/article/hamedaleaziz/wisconsin-sheriff-ice-detainees-coronavirus 8 Interview with Jay C. Butler, MD, Deputy Director for Infectious Diseases, Centers for Disease Control and Prevention, “Coronovirus (COVID-19) Testing,” JAMA Network, March 16, 2020, available at https://youtu.be/oGiOi7eV05g (min 19:00). 9 Indeed, I (Dr. Allen) raised concerns to CRCL, the DHS Office of Inspector General, and to Congress in July 2018, along with my colleague Dr. Pamela McPherson, about the risks if harm to immigrant children in family detention centers because of specific systemic weaknesses at those facilities in their ability to provide for the medical and mental health needs of children in detention. See, e.g., July 17, 2018 Letter to Senate Whistleblower Caucus Chairs from Drs. Scott Allen and Pamela McPherson, available at https://www.wyden.senate.gov/imo/media/doc/Doctors%20Congressional%20Disclosure%20SWC.pdf. Those concerns, including but not limited to inadequate medical staffing, a lack of translation services, and the risk of
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immigration detention, according to press reports, six died of infectious disease, including three deaths from influenza.10 Containing the spread of an infection in a congregate facility housing families creates the conditions where many of those infected children who do not manifest symptoms will unavoidably spread the virus to older family members who may be a higher risk of serious illness.
Finally, as you well know, social distancing is essential to slow the spread of the coronavirus to minimize the risk of infection and to try to reduce the number of those needing medical treatment from the already-overwhelmed and inadequately prepared health care providers and facilities. However, social distancing is an oxymoron in congregate settings, which because of the concentration of people in a close area with limited options for creating distance between detainees, are at very high risk for an outbreak of infectious disease. This then creates an enormous public health risk, not only because disease can spread so quickly, but because those who contract COVID-19 with symptoms that require medical intervention will need to be treated at local hospitals, thus increasing the risk of infection to the public at large and overwhelming treatment facilities.
As local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community.To be more explicit, a detention center with a rapid outbreak could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc). In the alternate scenario where detainees are released from high risk congregate settings, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out. In the first scenario, many people from the detention center and the community die unnecessarily for want of a ventilator. In the latter, survival is maximized as the local mass outbreak scenario is averted.
It is additionally concerning that dozens of immigration detention centers are in remote areas with limited access to health care facilities. Many facilities, because of the rural locations, have only one on-site medical provider. If that provider gets sick and requires being quarantined for at least fourteen days, the entire facility could be without any medical providers at all during a foreseeable outbreak of a rapidly infectious disease. We simply can’t afford a drain on resources/medical personnel from any preventable cases.
communication breakdowns and confusion that results from different lines of authority needing to coordinate between various agencies and partners from different government programs and departments responsible for detention programs with rapid turnover, all continue to contribute to heightened risks to meeting the medical challenges posed by the spread of the coronavirus. 10 Nicole Acevedo, “Why are children dying in U.S. custody?,” NBC News, May 29, 2019, available at https://www.nbcnews.com/news/latino/why-are-migrant-children-dying-u-s-custody-n1010316
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Proactive Approaches Required
Before coronavirus spreads through immigration detention, proactivity is required in three primary areas: 1) Processes for screening, testing, isolation and quarantine; 2) Limiting transport and transfer of immigrant detainees; and 3) Implementing alternatives to detention to facilitate as much social distancing as possible.
Protocols for early screening, testing, isolation and quarantine exist in detention settings to address infectious diseases such as influenza, chicken pox and measles. However, the track record of ICE facilities implementing these protocols historically has been inconsistent. In the current scenario, with widespread reporting about the lack of available tests for COVID-19 and challenges for screening given the late-onset display of symptoms for what is now a communityspread illness, detention facilities, like the rest of country, are already behind the curve for this stage of mitigation.
Detention facilities will need to rapidly identify cases and develop plans to isolate exposed cohorts to limit the spread, as well as transfer ill patients to appropriate facilities. Screening should occur as early as possible after apprehension (including at border holding facilities) to prevent introduction of the virus into detention centers. We strongly recommend ongoing consultation with CDC and public health officials to forge optimal infection prevention and control strategies to mitigate the health risks to detained patient populations and correctional workers. Any outbreak in a facility could rapidly overwhelm the capacity of healthcare programs. Partnerships with local public health agencies, hospitals and clinics, including joint planning exercises and preparedness drills, will be necessary.
Transferring detainees between facilities should be kept to an absolute minimum. The transfer process puts the immigrants being transferred, populations in the new facilities, and personnel all at increased risk of exposure. The nationwide network of detention centers, where frequent and routine inter-facility transfers occur, represents a frighteningly efficient mechanism for rapid spread of the virus to otherwise remote areas of the country where many detention centers are housed.
Finally, regarding the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.
Congregant settings have a high risk of rapid spread of infectious diseases, and wherever possible, public health mitigation efforts involve moving people out of congregate settings (as we are seeing with colleges and universities and K-12 schools).11 Minimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with
11 Madeline Holcombe, “Some schools closed for coronavirus in US are not going back for the rest of the academic year,” CNN, March 18, 2020, available at https://www.cnn.com/2020/03/18/us/coronavirus-schools-not-going-backyear/index.html; Eric Levenson, Chris Boyette and Janine Mack, “Colleges and universities across the US are canceling in-person classes due to coronavirus,” CNN, March 12, 2020, available at https://www.cnn.com/2020/03/09/us/coronavirus-university-college-classes/index.html.
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chronic diseases. COVID-19 infection among these groups will require many to be transferred to local hospitals for intensive medical and ventilator care—highly expensive interventions that may soon be in short supply.
Given the already established risks of adverse health consequences associated with the detention of children and their families,12 the policy of detention of children and their families in should be reconsidered in light of these new infectious disease threats so that children would only be placed in congregate detention settings when lower risk community settings are not available and then for as brief a time as possible.
In addition, given the low risk of releasing detainees who do not pose a threat to public safety— i.e., those only charged with immigration violations—releasing all immigration detainees who do not pose a security risk should be seriously considered in the national effort to stop the spread of the coronavirus.
Similarly, the practice of forcing asylum seekers to remain in Mexico has created a de facto congregate setting for immigrants, since large groups of people are concentrated on the US southern border as a result of the MPP program in the worst of hygienic conditions without any basic public health infrastructure or access to medical facilities or the ability to engage in social distancing as they await asylum hearings, which are currently on hold as a consequence of the government’s response to stop the spread of the coronavirus.13 This is a tinderbox that cannot be ignored in the national strategy to slow the spread of infection.
ICE recently announced that in response to the coronavirus pandemic, it will delay arresting immigrants who do not pose public safety threats, and will also stop detaining immigrants who fall outside of mandatory detention guidelines.14 But with reporting that immigrant detainees at ICE facilities are already being isolated for possible exposure to coronavirus, it is not enough to simply stop adding to the existing population of immigrant detainees. Social distancing through release is necessary to slow transmission of infection.15
Reassessing the security and public health risks, and acting immediately, will save lives of not only those detained, but also detention staff and their families, and the community-at-large.
12 Report of the DHS Advisory Committee on Family Residential Centers, September 30, 2016, available at https://www.ice.gov/sites/default/files/documents/Report/2016/ACFRC-sc16093.pdf 13 See Rick Jervis, “Migrants waiting at US-Mexico border at risk of coronavirus, health experts warn,” USA Today, March 17, 2020, available at https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hardcoronavirus-migrants-wait-mexico/5062446002/. 14 ICE website, Guidance on COVID-19, Immigration and Enforcement Check-Ins, Updated March 18, 2020, 7:45 pm, available at https://www.ice.gov/covid19. 15 Release of immigrants from detention to control the coronavirus outbreak has been recommended by John Sandweg, former acting head of ICE during the Obama administration, who further noted, "’The overwhelming majority of people in ICE detention don't pose a threat to public safety and are not an unmanageable flight risk.’…’Unlike the Federal Bureau of Prisons, ICE has complete control over the release of individuals. ICE is not carrying out the sentence imposed by a federal judge….It has 100% discretion.’" See Camilo Montoya-Galvez, “’Powder kegs’: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS News, March 19, 2020, available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/.

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Our legal counsel, Dana Gold of the Government Accountability Project, is supporting and coordinating our efforts to share our concerns with Congress and other oversight entities about the substantial and specific threats to public health and safety the coronavirus poses by congregate settings for immigrants. As we similarly offered to DHS, we stand ready to aid you in any way to mitigate this crisis and prevent its escalation in light of our unique expertise in detention health and experience with ICE detention specifically. Please contact our attorney, Dana Gold, at danag@whistleblower.org, or her colleague, Irvin McCullough, at irvinm@whistleblower.org, with any questions.
Sincerely,
/s/
Scott A. Allen, MD, FACP Professor Emeritus, University of California, School of Medicine Medical Subject Matter Expert, CRCL, DHS
/s/
Josiah D. Rich, MD, MPH Professor of Medicine and Epidemiology The Warren Alpert Medical School of Brown University Medical Subject Matter Expert, CRCL, DHS
Cc: Dana Gold, Esq. and Irvin McCullough, Government Accountability Project Senate Committee on the Judiciary House Committee on the Judiciary White House Coronavirus Task Force

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EXHIBIT E
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1 I, Dr. Nancy Yvonne Wang, declare as follows: 2 3 1. This declaration is based on my personal knowledge, except as to those matters 4 based on information and belief, which I believe to be true. If called to testify in this case, 5 I would testify competently about these facts. 6 2. My name is Dr. Nancy Yvonne Wang. I am a physician licensed to practice 7 medicine in the state of California, with a specialty board certification in Emergency 8 Medicine and a subspecialty board certification in Pediatric Emergency Medicine. I 9 currently work at the Stanford University Emergency Department as an attending 10 physician. I have 22 years of experience working in emergency medicine and 20 years of 11 experience working as a subspecialist in pediatric emergency medicine. 12 3. I completed Medical School at Stanford Medical School in 1993, an Emergency 13 Medicine Residency at Stanford in 1996, and my Pediatric Emergency Medicine 14 fellowship at Children’s Oakland in 1999. I am a Professor in Emergency Medicine and 15 Pediatrics, and Associate Director of Pediatric Emergency Medicine and Director of the 16 Social Emergency Medicine Program at Stanford University School of Medicine. I am 17 additionally Associate Faculty at the Stanford Center for Health Policy/Primary Care and 18 Outcomes Research, Stanford; Faculty Fellow at the Stanford Center for Innovation in 19 Global Health (CIGH), Senior Faculty at the Stanford Pediatric Center for Policy 20 Outcomes and Prevention, and affiliated faculty in the Stanford Human Rights in Trauma 21 Mental Health program. My scholarly expertise is in health services research with a focus 22 on Social Emergency Medicine, or the intersection of vulnerable populations with the 23 Health Care System. 24 4. I have served as a volunteer child welfare expert for the Center for Human Rights 25 and Constitutional Law and have visited unaccompanied children in ORR custody at 26 Southwest Keys Casa Padre Shelter (July 2018), Tornillo Influx Facility (October 2018), 27 and Homestead Influx Facility (March 2019). I have interviewed children in CBP 28 custody at CBP facilities in Clint, TX and Santa Teresa, NM (July 2019). I have
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1 volunteered with the Dilley Pro Bono project (December 2019). I have also worked with 2 Human Rights Watch to understand the effect of the Migrant Protection Protocols 3 (Remain in Mexico Policy) and interviewed families in Tijuana (November 2019) and 4 Juarez, Mexico (January 2020). I have previously submitted declarations in Flores v. 5 Barr. 6 5. As an Emergency Physician, I am on the front lines of the COVID-19 pandemic. 7 Our Emergency Department has and will evaluate patients with febrile influenza-like 8 illness. We will determine which patients need COVID-19 testing and/or admission to 9 the inpatient hospital floor. As Associate Director of our Pediatric Emergency 10 Department and an attending physician in the Department, I am well acquainted with and 11 involved in developing protocols for testing, admissions, cohorting, and personal 12 protective equipment. As the situation develops, the protocols continue to change. 13 14 COVID-19 15 6. COVID-19 is the disease caused by the novel coronavirus SARS-CoV-2. There are 16 many coronaviruses which infect animals and people. SARS-CoV-2, the virus that 17 causes COVID-19, is worrisome because it is a “new” coronavirus. Because this is a 18 new virus, we – as a population and individually – have no immunity. Novel 19 coronaviruses have also caused Severe Acute Respiratory Syndrome (SARS) and 20 Middle Eastern Respiratory Syndrome (MERS). Both these diseases are more deadly 21 but much less infectious than COVID-19. 22 7. From what we know, the SARS-CoV-2 virus spreads mostly by respiratory droplets 23 (droplets that come out of the respiratory tract when you sneeze, cough, and breathe). 24 People get exposed if they breathe in a respiratory droplet from someone with the 25 virus. People can also get exposed if they touch a surface where a respiratory droplet 26 landed and then touch their eyes, nose, or mouth. The virus can then stick to receptors 27 on the mucous membranes and then be internalized into the epithelial cells and cause 28 disease. It is thought that these viral respiratory droplets can last from hours to days
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1 depending on the type of surface. However, appropriate cleaning agents like soap or 2 alcohol-based cleaner can kill them and prevent the spread of disease. 3 8. Some people infected with COVID-19 do not exhibit the typical symptoms of the 4 disease (“asymptomatic carriage”). This makes it very difficult to slow the spread of 5 the disease without comprehensive public health measures that apply to everyone. 6 9. Estimates for the mortality rate of COVID-19 range from 1-3%. Although older 7 people and those with co-morbidities have an increased case fatality rate, people of all 8 ages – including infants and children – can have serious infections which create 9 significant morbidity and require significant health care resources including 10 hospitalization. 11 10. The World Health Organization declared COVID-19 a “pandemic” (worldwide 12 spread of new disease) on March 11, 2020. When there is an “epidemic” (regional 13 spread of disease), the public health system tries to “contain” the disease. When there 14 is a pandemic, the effort shifts from “containment” to “control and mitigation.” Since 15 in the US, it is too late to contain the disease, the focus must shift to disrupting the 16 disease’s impact by reducing the speed of its spread. This is where we are now. 17 Public health efforts are currently aimed at slowing the spread of disease so that health 18 care facilities are not overwhelmed by the number of patients and there are sufficient 19 resources to protect health care providers (e.g., protective personal equipment); as 20 well as to care for patients (e.g. ventilators and ICU beds for those requiring intensive 21 support). If the public health system can decrease the number of the infected and sick, 22 or at least spread that number over a longer period of weeks or months, then the health 23 care system will not be impossibly overburdened. 24 11.Although a minority of COVID-19 will become seriously ill and require 25 hospitalization, this total number will be significant enough to overwhelm our health 26 care resources and cause huge morbidity and mortality, as is occurring now in Italy. 27 12. COVID-19 has no vaccine nor treatment. Our population has no immunity. The only 28 means we have for slowing the disease is prevention. There are two critical elements
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1 of COVID-19 prevention: social distancing and consistent cleaning of surfaces and 2 hand washing in order to avoid infection from objects or materials (fomites) that are 3 likely to have infectious particles on them. The idea of social distancing is to slow the 4 spread of the disease and decrease the number of people getting sick and seriously 5 sick. The general recommendations are to avoid gatherings of groups over 10 and 6 public spaces because they present a heightened risk of spreading the virus. 7 Individuals should not be closer than six feet together. People should thoroughly 8 wash their hands several times per day, (especially after touching surfaces that are 9 touched by others and before touching their face and eating) Surfaces must be cleaned 10 regularly as they can have fomites. Specific directives from federal, state, and local 11 public health departments are changing daily, but these basic preventative measures 12 are clear. 13 13.Our medical system has limited ability to test for COVID-19. Therefore, best practice 14 is to quarantine those who are exposed and medically isolate those that are sick. 15 Those who are seriously ill must be triaged to hospital care. Given the shortage of 16 testing capabilities, individuals and communities cannot rely solely on the criteria of a 17 positive COVID-19 test to implement precautions or quarantine symptomatic persons. 18 14. The Centers for Disease Control and Prevention reports that as of March 24, 2020 at 19 12:00 am, the virus has infected 382,108 people worldwide, with a total of 16,574 20 deaths (4.34% mortality rate). See 21 www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ec 22 f6. In the United States, there are 46,450 confirmed cases with 593 deaths. However, 23 due to barriers to testing, we believe there are many more infections in the United 24 States than are currently reported. With time, a portion of these cases will progress to 25 serious disease and for some, death. 26 27 28
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1 DHS and HHS Facility Conditions 2 15. In July 2019, I interviewed children and families at CBP facilities in Clint, Texas and 3 Santa Teresa, New Mexico. We interviewed approximately 70 children and families. 4 We were not allowed in the living quarters, but children and families reported that 5 they shared limited toilets and sinks with many other detainees. Children and families 6 reported that they had limited access to soap and water to wash their hands. In my 7 opinion, it would be almost impossible for children and families to remain six feet 8 away from all other detainees and staff in these facilities. If COVID-19 is introduced 9 into a CBP facility, conditions like these will easily facilitate the spread of disease. 10 16. In July 2018, I visited the Southwest Key Casa Padre ORR facility in Brownsville, 11 Texas. At the time of my visit, the facility held over 1,000 children. Children slept in 12 shared rooms with rows of beds. Children shared bathrooms (showers, toilets, and 13 sinks) and ate all meals together in large common spaces. Children were also required 14 to participate in group activities and classes together. In my opinion, it would be 15 almost impossible for children to remain six feet away from all other children and 16 staff in this facility and it would be difficult to clean all the surfaces. If COVID-19 is 17 introduced into an ORR facility, conditions like these will easily facilitate the spread 18 of disease. 19 20 Vulnerabilities of Immigrant Populations in Detention 21 17. Congregate care facilities, by definition, cannot comply with the recommended public 22 health measures in this pandemic. Individuals held in congregate facilities cannot 23 ensure that there is six feet between them and the nearest person at all times. Facilities 24 that hold large numbers of individuals also require large numbers of staff, which 25 results in increased exposure to the detained population. 26 18.Even though the total number of children in ORR custody has declined and ORR care 27 provider facilities may house fewer children than they did a year ago, congregate care 28 facilities are still dangerous environments during a pandemic. Public health officials
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1 currently hold that gatherings with more than 10 people are unsafe in the context of 2 this pandemic. 3 19. In addition to the increased risk of contracting COVID-19 in detention, children and 4 families with existing poor health and chronic health conditions are at risk of 5 experiencing more severe illness. Children and families may come the United States 6 with underlying health conditions, and these health conditions may be exacerbated by 7 the time in immigration detention. Time spent in immigration detention may also lead 8 to new health issues for children and families. Many children that I have personally 9 interviewed in immigration detention have presented with serious health concerns. 10 11 ORR Guidance re: COVID-19 12 20.I have reviewed the March 13, 2020 “COVID-10 Interim Guidance for ORR 13 Programs” (“ORR Guidance”). The policies included are inadequate, contravene 14 multiple CDC recommendations, and place large numbers of detained children at risk 15 of contracting COVID-19. Even if ORR were to issue updated guidance requiring 16 social distancing and increased cleaning standards, from my experience, the time 17 needed to implement this guidance in ORR care provider facilities would be 18 insufficient to prevent the exponential disease risk. 19 21. The ORR Guidance does not require or even encourage social or physical distancing 20 between children or staff. The ORR Guidance does not limit or encourage limiting the 21 gathering of a groups of children or staff for meals, activities, or classes. 22 22.The ORR Guidance does not provide information on managing the spread of disease 23 among particularly vulnerable children, such as those with heart disease, chronic 24 respiratory disease, or compromised immune systems. The ORR Guidance also does 25 not provide any special guidelines for preventing the spread of disease to infants in 26 ORR custody. Infants are particularly vulnerable to serious COVID-19 infection. 27 23.The ORR Guidance does not provide any information for facilities on how to explain 28 or mitigate the negative psychological effect of isolation and quarantine of a child. For
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1 any child, but especially for children that are unaccompanied and without a trusted

2 caregiver, being placed in isolation may be very traumatizing.

3 24.The ORR Guidance does not provide a plan for facilities to manage spread of the

4 disease when more children need to be quarantined than the facility’s isolation rooms

5 can accommodate.

6 25.The ORR Guidance does not provide a screening or testing or quarantine/isolation

7 protocol for children not determined to be “at risk” under ORR’s definition but still

8 exhibiting COVID-19 symptoms. This oversight could lead to missed cases and

9 contribute to the further spread of the disease. ORR’s determination of risk country

10 checklist is outdated, given that this is a pandemic.

11 26.It is my expert opinion that the policies expressed in the ORR Guidance are

12 inadequate and contrary to current CDC guidelines as well as public health practice

13 being adopted during the current pandemic.

14 Recommendations

15 27. ORR should immediately expedite the release of detained children to their sponsors.

16 This is particularly urgent for children who have not been exposed to the virus and are

17 not exhibiting any symptoms and populations at high risk of increased complications

18 from the disease. Once released, children should self-quarantine for 14 days in order

19 to ensure that they are not exhibiting symptoms and to ensure the safety of their new

20 communities. Reducing the population of children in ORR facilities is essential to

21 minimizing the risk for outbreaks in facilities and preventing the spread of the virus to

22 children, ORR staff members, and communities across the United States.

23 28.To the extent there is absolutely no other option but for children and families to

24 remain detained in congregate settings, basic principles of public health require DHS

25 and HHS to:

26

a. Allow each detainee enough space to maintain a distance of at least six feet

27

from others;

28

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1

b. Organize meals and sleeping arrangements so that detainees are not exposed to

2

crowded food lines and cramped sleeping quarters;

3

c. Ensure that all detainees have free and consistent access to clean water, soap,

4

and hand sanitizer;

5

d. Transfer children and families from high-density placements (facilities with 10

6

or more children) to low-density placements;

7

e. Separate children and families who are at higher risk of severe illness if they

8

contract an infection from other detainees;

9

f. Screen staff who enter and exit the facilities for COVID-19 symptoms twice

10

daily and prohibit entry if staff exhibit symptoms or report exposure;

11

g. Immediately quarantine any detainee who is symptomatic in a negative pressure

12

room in order to decrease the risk of infection to others. Given that this is a

13

pandemic, all symptomatic detainees should be tested for COVID-19.

14

h. Even if all of the above recommendations for DHS and HHS facilities are

15

followed, the inherent conditions of detention are such that detained children

16

and families would still be at high risk for exposure to COVID-19. In order to

17

contain the spread of the COVID-19 virus, and to protect children and families,

18

the government must relocate as many people as possible out of DHS and HHS

19

facilities.

20 29.I declare under penalty of perjury that the foregoing is true and correct. Executed on

21

March 24, 2020 in Palo Alto, California.

22

23

24

_____________________________________

25

Nancy Yvonne Wang, MD

26

27

28

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EXHIBIT F
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1

DECLARATION OF ANTHONY ENRIQUEZ, ESQ.

2

3 I, Anthony Enriquez, declare as follows:

4

5 1. This declaration is based on my personal knowledge. If called to testify in this

6 case, I would testify competently about the following facts.

7 2. My name is Anthony Enriquez, Esq. and I am an attorney licensed to practice in

8 the State of New York. This declaration describes my experiences and observations

9 working with unaccompanied migrant youth detained in congregate care facilities in New

10 York State. These facilities include MercyFirst, Rising Ground, and Catholic Guardian

11 Services, in addition to others.

12

13 Experience Serving Youth in ORR Custody

14 3. Since January of 2018, I have been the Director of the Unaccompanied Minors

15 Program Catholic Charities Community Services of the Archdiocese of New York,

16 (CCCS-NY), a legal service provider that serves youth at MercyFirst, Rising Ground, and

17 Catholic Guardian Services, in addition to a number of other facilities in New York. I

18 supervise a team of nearly 40 attorneys, paralegals, case managers, and operational staff

19 who together work to represent detained unaccompanied migrant youth seeking relief

20 before immigration courts and agencies. Over the last 10 years, Catholic Charities has

21 represented hundreds of youth in the legal custody of the Office of Refugee Resettlement

22 (ORR) custody. Although the majority of these youth come from Honduras, Guatemala

23 and El Salvador, youth placed at this facility may come from all over the world.

24 4. As the legal service provider for MercyFirst, Rising Ground, and Catholic

25 Guardian Services, our legal staff maintain regular contact with the youth at each of these

26 facilities. We provide ongoing consultations and presentations concerning the legal

27 rights of detained minors. We are also providing direct legal representation to youth

28 currently detained at these facilities.

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1 MercyFirst

2

Background

3 5. Since 2014, MercyFirst has been a facility subcontracted by ORR to house

4 unaccompanied children. It is located in Syosset, New York.

5 6. MercyFirst has two different settings. One of them is a Residential Treatment

6 Center (RTC) for youth between the ages of 13 and 17. The other houses youth between

7 the ages of 6 and 17 in congregate or shelter care. It is my understanding that MercyFirst

8 is licensed to provide shelter care for up to 60 youth. The current population of the RTC

9 setting is approximately seven youths. The current population of the shelter setting is

10 approximately 34 youth.

11 7. MercyFirst consists of a campus that includes approximately 5 buildings or “units”

12 as well as another location with a “unit” where youth are housed in buildings that

13 accommodate up to 12 youth. In addition to interaction with other residents, youth in

14 each unit have regular contact with the various staff that provide daily supervision.

15 Children and youth are regularly transported to other buildings on the campus for

16 educational programming as well as other services. Residents are expected to share

17 common equipment such as telephones, televisions, tables, recreational games and other

18 living accommodations.

19

20

Youth Interactions with Staff

21 8. MercyFirst has a 6:1 ratio of supervision for children in shelter. Many youth in the

22 RTC setting are required to receive one-on-one supervision from staff, in addition to the

23 general daily supervision provided. Staff work different shifts and youth are exposed to

24 different staff throughout the day.

25 9. Youth also meet individually with case managers and mental health clinicians on a

26 weekly basis.

27

28

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1 10. Often, staff interact with youth in the RTC in a physical manner, including using

2 physical restraints. When these incidents occur, minors are at times taken to the hospital

3 for further evaluation, medication, or hospitalization.

4 11. Due to space constraints and group programmatic needs, it would be very difficult

5 or almost impossible for children to maintain six feet of social distancing between

6 themselves and everyone else in the facility.

7

8

Sleeping Arrangements

9 12. Youth at MercyFirst are held in a communal setting in close quarters with other

10 children. Based on observation of and conversations with clients, youth sleep in

11 individual rooms with one bed or two beds with approximately two or three feet between

12 the beds.

13

14

Dining Facilities

15 13. Youth at MercyFirst typically eat meals in a communal setting. Meals are served

16 three times a day in a single location which serves all the kids in a unit at the same time.

17 Various staff are also present during meals.

18

19

Access to Medical Care

20 14. There is a nurse and a psychiatrist on campus and children have access to medical

21 care. For more specialized medical care, children must be transported outside of

22 MercyFirst. If access to local hospitals is limited due to the coronavirus, minors at

23 MercyFirst may be at serious risk of being denied access to essential medical care.

24

25 Rising Ground

26 Background

27 15. Rising Ground (RG) detains unaccompanied migrant youth between the ages of 13

28 and 17. It is my understanding that this facility is licensed to provide shelter care for up

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1 to 65 youth in the regular shelter setting. The current population of this facility is

2 approximately 22 young people.

3 16. Rising Ground currently houses unaccompanied children in four different cottages

4 located on the same campus. Each unit currently holds up to 8 young people who are

5 regularly transported to other locations within the same campus for educational

6 programming as well as other services. Residents are expected to share common

7 equipment such as telephones, televisions, tables, recreational games and other living

8 accommodations.

9

10

Youth Interactions with Staff

11 17. There are staff and personnel who provide 24-hour care and supervision with a 6:1

12 ratio of supervision. Staff work different shifts and youth are exposed to different staff

13 throughout the day.

14 18. Youth also meet individually with case managers and mental health clinicians on a

15 weekly basis.

16 19. Due to space constraints and group programmatic needs, it would be very difficult

17 or almost impossible for children to maintain six feet of social distancing between

18 themselves and everyone else in the facility.

19

20

Sleeping Arrangements

21 20. Youth at RG are held in a communal setting in close quarters with other children.

22 Based on my observation, youth sleep in rooms with two beds with approximately two or

23 three feet between the beds.

24

25

Dining Facilities

26 21. Youth at RG also eat meals in a communal setting. Meals are served three times a

27 day in a single location which serves meals to all the residents in the cottage at the same

28 time. Various staff are also present during meals.

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1

Access to Medical Care

2 22. To my knowledge, there is a nurse practitioner on campus. Youths at RG have

3 access to regular medical care. For more specialized medical care, children must be

4 transported outside of RG’s campus. If access to local hospitals in the surrounding area is

5 limited due to the pandemic, minors in shelter at RG may be at serious risk of being

6 denied access to essential medical care.

7

8 Catholic Guardian Services

9 Background

10 23. Catholic Guardian Services (CGS) detains unaccompanied migrant youth between

11 the ages of 13 and 17. It is my understanding that this facility is licensed to provide

12 shelter care for up to 56 youth in the regular shelter setting. The current population of

13 this facility is approximately 23 young people.

14 24. CGS houses unaccompanied children in three different buildings. The largest of

15 these can accommodate up to 24 young people. Residents are expected to share common

16 equipment such as telephones, televisions, tables, recreational games and other living

17 accommodations.

18

19

Youth Interactions with Staff

20 25. There are staff and personnel who provide 24-hour care and supervision with a 6:1

21 ratio of supervision. Staff work different shifts and youth are exposed to different staff

22 throughout the day.

23 26. Youth also meet individually with case managers and mental health clinicians on a

24 weekly basis.

25 27. Due to space constraints and group programmatic needs, it may be very difficult or

26 almost impossible for children to maintain six feet of social distancing between

27 themselves and everyone else in the facility.

28

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1

Sleeping Arrangements

2 28. Youth at CGS are held in a communal setting in close quarters with other children.

3 Youth sleep in rooms with two or three beds with approximately two or three feet

4 between the beds.

5

6

Dining Facilities

7 29. Youth at CGS also eat meals in a communal setting. Meals are served three times

8 a day in a single location. All the residents in the cottage eat at the same time. Various

9 staff members are also present during meals.

10

11

Access to Medical Care

12 30. To my knowledge young people at CGS have access to regular medical care. For

13 more specialized medical care, children must be transported outside of CGS’s campus. If

14 access to local hospitals in the surrounding area is limited due to the pandemic, minors in

15 shelter at CGS may be at serious risk of being denied access to essential medical care.

16

17

General Risks of Congregate Care

18 31. It is my understanding that some facilities are making specific efforts to implement

19 practices designed to mitigate the public health risks associated with COVID-19.

20 32. Even so, I remain concerned that children in congregate care are at heightened risk

21 of being infected by or exposing others to the novel coronavirus. This includes exposure

22 introduced by shelter staff who must remain in close contact with detained youth and who

23 themselves are exposed to the virus in daily travels to and from the shelters throughout

24 the New York City area. Such exposure places children, staff, and the general public at

25 risk of contracting the virus.

26 33. I am also concerned that due to the current overwhelming strain on New York

27 hospitals and medical facilities there may be no way to ensure that children in ORR

28 facilities receive timely or adequate medical care, both on and off site. Consequently,

Declaration of Anthony Enriquez
6

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1 youth in ORR custody may be acutely compromised with respect to exposure to the

2 dangerous virus and its potentially deadly effects.

3

4 I declare under penalty of perjury that the foregoing is true and correct. Executed on this

5 24 day of March, 2020, at New York, New York.

6

7

______________________________________

8

ANTHONY ENRIQUEZ

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Declaration of Anthony Enriquez
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EXHIBIT G
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EXHIBIT H
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EXHIBIT I
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Physician Declaration on Increased Covid-19 Infection Risk due to Mental Health Disorders in Detained Migrants, Refugees, and Asylum Seekers
Mira Zein, MD, MPH Clinical Assistant Professor Consult Liaison Psychiatry Stanford University School of Medicine Department of Psychiatry and Behavioral Sciences
Introduction:
Studies have demonstrated that refugees and migrants experience higher rates of depression, anxiety, and post-traumatic stress disorder (PTSD) due to war, persecution, domestic violence, etc., suffered in their home countries, in addition to the stress from resettlement1,2. One study demonstrated that “refugees resettled in western countries could be [up to] ten times more likely to have post-traumatic stress disorder than [the] age-matched general populations in those countries1.” Immigration detention adds significant psychological stress to the resettlement process, further exacerbating the incidence and severity of mental health disorders. Growing evidence demonstrates that PTSD, anxiety/stress, and depression can lead to decreased immune response and increased risk of infections. Thus, the men, women, and children in immigration detention, due to higher rates of the aforementioned mental health disorders, have increased vulnerability to infections, including COVID-19.
Immigration Dete ntion and Mental Health:
For migrants, refugees, and asylum seekers, immigration detention in a host country is a significant post-migration stressor that includes a loss of liberty and the ever-present threat of forced return to their country of origin3. The detention experience increases the likelihood that detainees exacerbate existing or develop new mental health disorders such as PTSD, anxiety, and depression4.
1 Fazel M, Wheeler J, Danesh J. Prevalence of serious mental disorder in 7000 refugees resettled in western countries: a systematic review. Lancet 2005;365(9467):1309-14.
2 Priebe S, Giacco D, El-Nagib R. Public Health Aspects of Mental Health Among Migrants and Refugees: A Review of the Evidence on Mental Health Care for Refugees, Asylum Seekers and Irregular Migrants in the WHO European Region. 2016.
3 Robjant K, Robbins I, Senior V. Psychological distress amongst immigration detainees: a crosssectional questionnaire study. Br J Clin Psychol 2009;48(Pt 3):275-86
4 von Werthern M, Robjant K, Chui Z, Schon R, Ottisova L, Mason C, Katona C. The impact of immigration detention on mental health: a systematic review. BMC Psychiatry 2018;18(1):382.
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Physician Declaration on Increased Covid-19 Infection Risk due to Mental Health Disorders in Detained Migrants, Refugees, and Asylum Seekers
A 2018 systematic review of twenty-six (26) studies, which included two-thousand-and-nine (2009) detainees, demonstrated that detainees ranging from 11 months to 80 years of age had higher rates of anxiety, depression and PTSD than the general population of the host countries4. Six of the reviewed studies compared PTSD, depression, and anxiety rates in detained migrants and refugees to non-detained migrants and refugees from a similar background. All six studies demonstrated higher symptoms scores and rates for these mental health disorders in the detained groups4. The higher rates and severity of symptoms also occurred in detained asylum seekers compared to non-detained asylum seekers5. Four of the studies reported on the relationship between length of detention and mental health: they found a positive correlation between detention duration and development of mental health symptoms4.
Children in particular are vulnerable to the mental health consequences of detention. One study examined the mental health of four-hundred and twenty-five (425) children 4 to 17 years of age who were held at a US detention center for over two months in mid-20186. Scoring on a standardized questionnaire demonstrated that 32% of children had elevated scores for emotional problems, with 49% of children suffering emotional problems when separated from their mothers6. One hundred and fifty (150) of these children also completed a PTSD assessment, with 17% scoring in the range consistent with a PTSD diagnosis6. The Australian Human Rights Commission, investigating Australia’s immigrant detention centers, found that 34% of children in detention had diagnosable mental health disorders, and 85% of responders said the detention had an adverse effect on the children’s mental health7.
Mental Health, Immunity, and Infection Risk:
People with a weakened immune system have an increased risk of developing more severe forms of COVID-19, including complications like pneumonia, because their immune response is not strong enough to fight diseases like COVID-198. In addition to illnesses such as HIV and medication such as corticosteroids that suppress the body’s immune response, studies have explored how stress changes the immune system. Anxiety, depression, and PTSD, which are interconnected with stress, have also been demonstrated to impact the immune system.
5 Cleveland J, Rousseau C. Psychiatric symptoms associated with brief detention of adult asylum seekers in Canada. Can J Psychiatry 2013;58(7):409-16
6 MacLean SA, Agyeman PO, Walther J, Singer EK, Baranowski KA, Katz CL. Mental health of children held at a United States immigration detention center. Soc Sci Med 2019;230:303-308.
7 Triggs G. The Forgotten Children: National Inquiry into Children in Immigration Detention 2014. Med J Aust 2015;202(11):553-5
8 Centers for Disease Control (CDC_ 2020 March 22. Covid-19: People who are at higher risk for severe illness. In Coronavirus 2019 (Covid-19). https://www.cdc.gov/ coronavirus/2019ncov/specific-groups/pe ople-at-higher-r is k.ht ml.
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Physician Declaration on Increased Covid-19 Infection Risk due to Mental Health Disorders in Detained Migrants, Refugees, and Asylum Seekers
Stress impacts the immune response in various ways. The sympathetic nervous system (the component of the nervous system that governs stress responses) sends neurons from the brain to primary immune cell sites (bone marrow and thymus) as well as secondary sites (spleen and lymph tissues)9,10. These sympathetic neurons can influence immune responses by releasing neurochemicals that bind to receptors on immune cells (white blood cells) in the primary and secondary immune tissues9,10. There are connections between various parts of our endocrine system and stress that leads to increased stimulation of the sympathetic nervous system as well as the stress hormone, cortisol, which has both short and long term effects on immune dysfunction9,10.
Acute stress causes release of proteins called cytokines that increase inflammation which in the short term is useful to fight infections. Chronic stress, lasting days to years, leads to persistent, higher levels of these pro-inflammatory cytokines and systemic inflammation. Chronic systemic inflammation causes immune dysregulation and increases risk for chronic diseases as well a s increases risk for infection9,10. Furthermore, chronic stress can lead to suppression of specific cytokines that activate cellular immunity, a type of immune response that provides defense against infections10.
Anxiety, depression, and PTSD are all mental health disorders linked with elevated stress levels, and as such studies have found that these disorders are also linked to changes in immune function. Depression, anxiety, and PTSD have all been found to directly stimulate production of pro-inflammatory cytokines, as well as downregulate cellular immunity leading to increased risk of acute and prolonged infection, and delayed wound healing11,12. The pro-inflammatory states found in these mental health disorders leads to a complex feedback in which inflammation changes brain circuits and neurochemical expression, perpetuating a cycle of immune dysfunction and mental health symptoms13,14.
9 Morey JN, Boggero IA, Scott AB, Segerstrom SC. Current Directions in Stress and Human Immune Function. Curr Opin Psychol 2015;5:13-17
10 Segerstrom SC, Miller GE. Psychological stress and the human immune system: a metaanalytic study of 30 years of inquiry. Psychol Bull 2004;130(4):601-30
11 Kiecolt-Glaser JK, Glaser R. Depression and immune function: central pathways to morbidity and mortality. J Psychosom Res 2002;53(4):873-6
12 Neigh GN, Ali FF. Co-morbidity of PTSD and immune system dysfunction: opportunities for treatment. Curr Opin Pharmacol 2016;29:104-10
13 Wang Z, Caughron B, Young MRI. Posttraumatic Stress Disorder: An Immunological Disorder? Front Psychiatry 2017;8:222
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Physician Declaration on Increased Covid-19 Infection Risk due to Mental Health Disorders in Detained Migrants, Refugees, and Asylum Seekers
There are deeper interactions between the genes regulating immune function and mental health disorders15,16,17. These disorders, as well as adverse social and physical environments, can lead to changes in gene expression that have lasting impact on chronic disease development and persistent immune dysfunction15,16,17. These changes in gene expression are particularly detrimental in childhood because they can alter the development of the brain, body, and immune system15,16,17.
New studies looking at the relationship between COVID-19 and inflammation have found that there is an induction of pro-inflammatory cytokines leading to lung inflammation and damage during COVID-19 infection18. Another study also demonstrated that COVID-19 patients in Wuhan had elevated levels of inflammatory cytokines and a decrease in the number of a type of immune cell that fights viruses (T cells)19. More severe cases had greater suppression of their T cells19. There is some evidence that certain types of psychological trauma – potentially linked with the expression of the stress chemical norepinephrine – can lead to both decreased expression of these T cells and decreased expression of chemicals that encourage T cell proliferation20.
14 Irwin MR, Miller AH. Depressive disorders and immunity: 20 years of progress and discovery. Brain Behav Immun 2007;21(4):374-83
15 McEwen BS, Bulloch K. Epigenetic impact of the social and physical environment on brain and body. Metabolism 2019;100S:153941
16 Schiele MA, Gottschalk MG, Domschke K. The applied implications of epigenetics in anxiety, affective and stress-related disorders - A review and synthesis on psychosocial stress, psychotherapy and prevention. Clin Psychol Rev 2020;77:101830
17 Uddin M, Aiello AE, Wildman DE, Koenen KC, Pawelec G, de Los Santos R, Goldmann E, Galea S. Epigenetic and immune function profiles associated with posttraumatic stress disorder. Proc Natl Acad Sci U S A 2010;107(20):9470-5
18 Conti P, Ronconi G, Caraffa A, Gallenga CE, Ross R, Frydas I, Kritas SK. Induction of proinflammatory cytokines (IL-1 and IL-6) and lung inflammation by Coronavirus-19 (COVI-19 or SARS-CoV-2): anti-inflammatory strategies. J Biol Regul Homeost Agents 2020;34(2).
19 Qin C, Zhou L, Hu Z, Zhang S, Yang S, Tao Y, Xie C, Ma K, Shang K, Wang W and others. Dysregulation of immune response in patients with COVID-19 in Wuhan, China. Clin Infect Dis 2020.
20 Slota C, Weng N. 14. The effect of chronic stress on T cell function: An epigenetic and transcriptional assessment from bench to bedside. Brain, Behavior, and Immunity 2014;40:e4-e5.
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Physician Declaration on Increased Covid-19 Infection Risk due to Mental Health Disorders in Detained Migrants, Refugees, and Asylum Seekers
Conclus ion: There is strong evidence that migrants, refugees, and asylum seekers experience higher levels of mental health disorders such as depression, anxiety, and PTSD in the setting of cumulative psychological trauma. There is increasing evidence that immigration detention independently contributes to psychological trauma and leads to higher rates of depression, anxiety, and PTSD. There is also significant evidence of the links between these disorders and changes in immune function on a variety of levels, from expression of pro-inflammatory cytokines to expression and suppression of certain types of immune cells that can combat infection. And there is new evidence that this new disease, COVID-19, may have specific immune dysregulation and expression of pro-inflammatory cytokines that worsens disease severity. Given these multiple lines of evidence, it is reasonable to conclude that the men, women, and children in US detention facilities are at an elevated risk of weakened immunity due to their higher rates of psychologica l stress and mental health disorders. Thus, they are at increased risk of contracting and suffering from more severe forms of COVID-19, which is detrimental to them as individuals but also to the public health efforts to combat the disease.
I swear under penalty of perjury that the foregoing is true and correct. Executed at Stanford, California, on this 23rd of March, 2020.
_________________________________ Mira Zein, MD, MPH
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MIRA ZEIN
EDUCATION

Consult Liaison Psychiatry Fellow, Stanford University
• Taught Medicine Residents lectures on Delirium, Alcohol Withdrawal, Bipolar Disorder, and Psychotic Disorders
• Co-lead busy consult service and handle complex transplant, psycho-oncology and trauma patients
• Hands-on training of medical students and PGY2 residents in CL-psychiatry

July ’18 – June ‘19

Psychiatry Resident, NYU School of Medicine

July ’14 – June ‘18

• Chief Resident for 2017-2018 academic year • Consistent excellent feedback from all PGY1-PGY3 rotations • Participated in extracurricular mental status exam teaching groups for 2nd year medical students • Co-facilitator of Survivors of Torture Tibetan group as extracurricular participation in PGY 3/4 years

• Designed and implemented new integrated care didactic and elective series

• Created new collaborative care program for NYU Langone Brooklyn FHQC sites

Doctor of Medicine , McGill University Faculty of Medicine

Aug ‘10 – May ‘14

Maste rs in Public Health, Johns Hopkins School of Public Health • Liaised with American University of Beirut and Lebanese Department of Health to help develop population level dialysis registries and mental health screens • Worked on public health task force to provide medical/public health evidence for zoning code changes
B.S. Physiological Science , Summa Cum Laude , UCLA B.S. Anthropology, Summa Cum Laude, UCLA

May ‘09 – June ‘10 Sept ‘00 – June ‘04

HONORS & AWARDS

PGY4 Comprehensive Psychiatric Emergency Psychiatry Award, NYU Department of Psychiatry PGY2 Junior Resident Teaching Award, NYU Department of Psychiatry Mona Bronfman Sheckman Prize in Psychiatry, McGill Faculty of Medicine Dean’s Honors List, McGill Faculty of Medicine
Best Graduate Thesis, Masters of Public Health, Johns Hopkins
Delta Omega Honors Society, Johns Hopkins Chapter

June 2018
July 2016 May 2014
2011-2014 May 2010 May ’10 – Present Passed July 29 2013

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LICENSURE:
USMLE Step 1 USMLE Step 2CK USMLE Step 2CS USMLE Step 3 ABPN Board Certification Exam - Psychiatry ABPN Specialty Board Certification Exam – Consult Liaison Psychiatry

Passed Aug 24 2013
Passed Dec 18 2013 Passed Apr 30 2015 Passed Sept 24 2018 Passed Oct 11 2019

WORK EXPERIENCE:

Clinical Assistant Professor, Stanford University School of Medicine

July ’19 – Present

• Attending psychiatrist on the general, intensive care, and

ED psychiatry-consult teams

• Supervise and teach medical students, residents, fellows, and interdisciplinary providers

• Consult psychiatrist developing a unique integrated behavioral health care model for the

Stanford primary care clinic serving Cisco employees and their families • Development of new 11-course neuroscience curriculum for 2nd year psychiatry residents

Health Marketing Consultant, Innovative Management Services

Sept ‘04 – Aug ‘09

• Led needs-assessment research teams to conduct market analysis,

healthcare & ethics policy review

• Identified health system needs for clients through setting up interdisciplinary focus groups

• Facilitated patient education/awareness though targeted marketing programs

LEADERSHIP:

APA Leadership Fellowship

July ‘16 – June ‘18

• Worked with other Leadership Fellows to present a workshop at the 2017 APA Conference on

applying learning theory to consulting and education of non-psychiatric specialties

• Participate as a member of APA’s Psychosomatic Medicine Council including attending and actively

contribute to sessions at APA and Components meetings, edit and discuss position papers

• Co-facilitated discussions as part of the Global Mental Health Caucus at the 2017 APA Conference

• Contributed as a APA Program Planner to online course on opioids and marijuana in the US

Inte grate d Care Work Group

Nov ‘15 – June ‘18

• Formed a group of psychiatry residents to work on development of new

integrated care electives, curriculum and research for the NYU Psychiatry Residency

• Arranged and co-led meetings with the Departments of Psychiatry and Medicine at Bellevue

Hospital to gauge needs and feasible resident integration into inpatient and outpatient departments

• Generated several new clinical electives, increased number of education hours towards integrated

care, and developed interdisciplinary case conferences on inpatient units

• Completed APA Collaborative care training and took part in 12 week APA Learning Collaborative

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Committee of Interns and Residents – Psychiatry Delegate for Bellevue Hospital June 15’ – June ‘18 • Attended monthly meetings with CIR liaison and delegates to advocate for resident needs • Developed resident-driven workshops and project submissions • Awarded $229,000 research grant from CIR on a 2 year study to promote resident wellness

Global Health Advocate, Canadian Federation of Medical Students

Sept ‘11 – June ‘12

• Coordinated a National project with GHA representatives from other medical

schools focusing on the chosen Global Health theme of Refugee Health

• Provided Advocacy training sessions to medical students at McGill

• Worked on local projects involving theme of Refugee Health, including recruiting volunteers for

asylum seeker clinics, creating patient information on diseases in different languages for primary

providers who worked with refugees

Lead Researcher, Montreal WHO Convention

Aug ’11 – April ‘12

• Coordinated research team in generation of online research guide for Refugee Health,

used during the convention; edited and compiled research guide

• Interfaced with various committees to organize and execute the WHO convention

INVOLVEMENT:
NYU Psychiatry Re sidency Safe ty Committe e • Representative for class of 2018 to collect data on resident safety concerns and help develop programs and policies to improve resident safety
NYU Association for Culture and Psychiatry • Work with other members of the executive committee to develop ACAP presentations and programs and recruit guest lecturers throughout the year
New York County Psychiatric Society • NYU Resident Representative to the Resident-Member Committee • Contributed previously to the Editorial Board and UN Committee

Nov ’14 – June ‘18 Aug ’14 – June ‘18 Apr ‘14 – June ‘18

RESEARCH/PUBLICATIONS/PRESENTATIONS
Book Chapters
“Toxicological Exposures and Nutritional Deficiencies in the Psychiatric Patient” Authors Zein, Mira, Khan, Sharmin, Legha, Jasswinder, Wasserman, Lloyd, Dec 2017 • In Textbook of Medical Psychiatry

Published 2020

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“Chapter 5: Culturally Competent Care for Geriatric Indigenous Peoples: American Indian, Alaska Native, First Nations, and Native Hawaiians”
Authors Hasbah-Roessel, Mary, Nahulu, Linda, Zein, Mira • In Culture, Heritage, and Diversity in Older Adults’ Mental Health Care
“What are the Psychiatric/Neuropsychiatric Sequelae of Transplantation?” Authors Zein, Mira, Sher, Yelizaveta • In Facing Organ Transplantation
“What are the Psychological Sequelae of Transplantation?” Authors Sher, Yelizaveta, Zein, Mira • In Facing Organ Transplantation

Published 2018
In process June 2019 submission
In process June 2019 submission

Works hops /Cours es

“Neuropsychiatric Masquerades: Medical and Neurological Disorders That Present With Psychiatric Symptoms” Maldonado, Jose (director); Sher, Yelizaveta; Lahijani, Sheila; Hussain, Filza;
Ament, Andrea, Zein, Mira • Full-day course to be presented at 2020 APA Conference

April 26, 2020

“Data vs Diatribe and the Depiction of Suicide in the News Media”

April 25, 2020

Zein, Mira (chair); Gold, Jessi; Robinson, Diana; Khandai, Chandan; Pientka, Laura

• General session to be presented at 2020 APA Conference

“2019 Neuropsychiatry Updates”
Maldonado, Jose (director); Ament, Andrea; Schmajuk, Mariana; Zein, Mira; Lahijani, Sheila
• General session presented at 2019 ACLP Conference

Nov 15, 2019

“Neuropsychiatric Masquerades: Medical and Neurological Disorders That Present With Psychiatric Symptoms”
Maldonado, Jose (director); Sher, Yelizaveta; Lahijani, Sheila; Hussain, Filza; Ament, Andrea, Zein, Mira
• Full-day course presented at 2019 APA Conference

May 19, 2019

“Integrating Training in Collaborative Care Model in Your Program” • Discussion Panelist for 2019 APA Collaborative Care Residency Education Conference

May 5, 2019

“Shark Tank: Creating Academic Products from Proposals

Nov 17, 2018

Opportunities Into Residency Training

Khandai, Abishek; Taylor, Adrienne; Zein, Mira; Robinson, Diana; Maldonado, Jose;

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Shah, Sejal; Ratzliff, Anna • Workshop presented at 2018 ACLP Conference

“Post-Graduate Education for the 21st Century: Incorporating Integrated Care Opportunities Into Residency Training Zein, Mira (co-chair), Vito, Jose, Bradley, Mark, Lux, Joseph, Morris-Smith, Lianne • Workshop presented at 2018 APA Conference

May 6, 2018

“Decisional Capacity: A Contemporary Update Tiamson-Kassab, Maria (chair); Robinson, Diana; Sheehan, Kathleen; Zein, Mira
• Workshop presented at 2018 APA conference

May 6, 2018

“Culturally Competent Mental Health Care for Kupuna: An Updated Diverse and Inclusive Curriculum
Gajaria Mary; Lo, Pachida; Zein, Mira • Workshop presented at 2018 AAGP conference

March 17, 2018

“Education as Integration: Teaching Psychiatric Topics to

May 20, 2017

Non-Psychiatric Colleagues”

Authors Kandai, Chandan, Taylor, Adrienne, Zein, Mira, Mungall, Diane, Sockalingham, Sanjeev

• Workshop at 2017 APA Conference

Pos te rs

“Resident-Driven Implementation of Collaborative Care Model in a Family Health Center” Authors Zein, Mira
• Poster presented at 2018 ACLP conference

Nov 15, 2018

“Implementation of the Collaborative Care Model in Primary Care:

Feb 13, 2018

Initial Results of a Pilot Study

Authors Zein, Mira, Marrelli, Jon

• Poster presented at 2018 Annual New York State DSRIP Statewide Learning Symposium

“Developing an Integrated-Care Program for Residents in a Multi-Hospital System: Challenges and Progress"
Authors Zein, Mira, Zhu, Jennifer, Dohrmann, Elizabeth • Poster presentation at 2017 APA Conference • Finalist in Medical Student/Resident Poster Competition

May 20, 2017

“Advancing Patient Safety at NYU Langone: Increasing the Number of Medically-Complex Patients Receiving Care on HCC10 Authors Zein, Mira, Walton, Michael, Randazza, Jason, Aavik, Lori, Zhu, Jennifer

June 6, 2016

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• Presented at NYU Langone Medical Center’s Quality and Safety Day

American Psychiatric Association Publications

“Resource Document on Assessing Capacity” Authors Bourgeois, James, Robinson, Diana, Zein, Mira, Sheehan, Kathleen,
Tiamson-Kassab, Maria, • Submitted by APA Council on Consult-Liaison Psychiatry

In Revision May 2018

“APA Factsheet Mental Health Disparities: American Indians and Alaska Natives” Published Dec 2017
Author Zein, Mira • Published online https://www.psychiatry.org/File%20Library/Psychiatrists/CulturalCompetency/Mental-Health-Dis par it ies/Menta l-Health-Facts-for-A mer ican-India n-A laskaNatives.pdf

Other Publications:

“Impressions of musical sounds: Case report on Musical Hallucinations
in a Post Lung-Transplant Patient” Authors Zein, Mira; Sher, Yelizaveta
• To be submitted for publishing consideration to Psychosomatics

In Progress

“The Pursuit of Resident Wellness” Author Zein, Mira, New York County Psychiatric Society Magazine, pgs 8-9
http://bluetoad.com/ publicat ion/? i=298614

Spring 2016

“MonWHO 2012 - Refugee Health Theme Guide”

March 2012

Authors Zein Mira, Peleva Emilia, Mahat Yashmi, Hebert Julien, Sahi Myiam,

Hu Shu Yang, Wang Serena.

• Presented research poster at Canadian Council for Refugees and at Montreal WHO Convention

• Published online: http://www.monwho.org/wp-content/uploads/2013/09/Refugee-Health-Theme-

Guide-MonWHO-2012.pdf.

“Zoning for Obesity? A Comparison of U.S. Zoning Changes Targeting Obesity to April 2010
Epidemiologic Evidence in the Public Health Literature” • Master’s Capstone Project – Presented at Johns Hopkins School of Public Health • Data presented to Baltimore Health Impact Assessment team as part of policy impact analysis for proposed Baltimore zoning changes

TEACHING

Interdisciplinary Courses, Stanford Hospital

Aug 18’ – Present

• Teach Medicine Residents at Palo Alto VA and Stanford Hospital courses

on Alcohol Withdrawal, Psychosis and Agitation, Delirium, and Bipolar Disorder

• Co-teach Psychopharmacology to Palliative Care Fellows • Lecturer for 2nd year psychiatry resident psychopharmacology course

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• Involved in Stanford Medical student interview course

Program Planner, APA Learning Center

Nov’ 16 – Present

• Reviewed online course “Myth and Misperceptions of Opioids and Cannabis”

• Generated educational objectives and pre/post assessment questions

NYU - Lectures for Ghanaian Medical Students

Feb ’15 – June 15

• Developed lectures to be used in tele-education and in-person education as part

of NYU Department of Psychiatry’s new partnership with the Medicine program at

the University of Ghana

High School Science Outreach Program, McGill Faculty of Medicine • Participated in yearly program teaching anatomy and biology lectures to underprivileged middle and high school students in Québec

Dec ’10 – ‘Dec 14

Family Mentor Program Intern, International Rescue Committee

Jan ‘10 – June ‘10

• Educated community volunteers on topics of the refugee selection process,

Intercultural communication and sensitivity, and on recognizing symptoms of

trauma and post-traumatic stress

• Trained volunteers to be family mentors for refugee families resettled in the Baltimore area

• Developed debriefing protocol for family mentors to improve volunteer resilience and cultural

understanding

PERSONAL:
Languages: Spanish, French, Arabic (spoken only) Hobbies: Classically trained in musical theatre and opera vocal performance and piano

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CURRICULUM VITAE

Craig William Haney Distinguished Professor of Psychology
UC Presidential Chair, 2015-2018 University of California, Santa Cruz 95064

home address:
phone: fax: email:

317 Ocean View Ave. Santa Cruz, California 95062 (831) 459-2153 (831) 425-3664 psylaw@ucsc.edu

PREVIOUS EMPLOYMENT

2015-2018

University of California Presidential Chair

2014-present

Distinguished Professor of Psychology, University of California, Santa Cruz

1985-2014

University of California, Santa Cruz, Professor of Psychology

1981-85

University of California, Santa Cruz, Associate Professor of Psychology

1978-81

University of California, Santa Cruz, Assistant Professor of Psychology

1977-78

University of California, Santa Cruz, Lecturer in Psychology

1976-77

Stanford University, Acting Assistant Professor of Psychology

EDUCATION 1978 1978

Stanford Law School, J.D. Stanford University, Ph.D. (Psychology)

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1972

Stanford University, M.A. (Psychology)

1970

University of Pennsylvania, B.A.

HONORS AWARDS GRANTS

2020

Finalist, Stockholm Prize in Criminology (for “outstanding achievements in criminological research or for the application of research results by practitioners for the reduction of crime and the advancement of human rights”).

2018

Emerald Literati Award for “Outstanding Paper” (for “Reducing the Use and Impact of Solitary Confinement in Corrections”).

2016

Vera Institute of Justice “Reimagining Prisons” Initiative Advisory Council.

Psychology Department “Most Inspiring Lecturer”

2015

University of California Presidential Chair (2015-2018 Term)

Martin F. Chemers Award for Outstanding Research in Social Science

Excellence in Teaching Award (Academic Senate Committee on Teaching).

President’s Research Catalyst Award for “UC Consortium on Criminal Justice Healthcare” (with Brie Williams and Scott Allen).

Vera Institute of Justice “Safe Alternatives to Segregation” (SAS) Initiative Advisory Council.

Who’s Who in Psychology (Top 20 Psychology Professors in California) [http://careersinpsychology.org/psychology-degreesschools-employment-ca/#ca-psych-prof]

2014

Distinguished Faculty Research Lecturer, University of California, Santa Cruz.

2013

Distinguished Plenary Speaker, American Psychological Association Annual Convention.

2012

Appointed to National Academy of Sciences Committee to Study the Causes and Consequences of High Rates of Incarceration in the United States.

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2011 2009 2006
2005
2004 2002

Invited Expert Witness, United States Senate, Judiciary Committee.
Edward G. Donnelly Memorial Speaker, University of West Virginia Law School.
Nominated as American Psychological Foundation William Bevan Distinguished Lecturer.
Psi Chi “Best Lecturer” Award (by vote of UCSC undergraduate psychology majors).
Herbert Jacobs Prize for Most Outstanding Book published on law and society in 2005 (from the Law & Society Association, for Death by Design).
Nominated for National Book Award (by American Psychological Association Books, for Reforming Punishment: Psychological Limits to the Pains of Imprisonment).
“Dream course” instructor in psychology and law, University of Oklahoma.
Annual Distinguished Faculty Alumni Lecturer, University of California, Santa Cruz.
Arthur C. Helton Human Rights Award from the American Immigration Lawyers Association (co-recipient).
Scholar-in-Residence, Center for Social Justice, Boalt Hall School of Law (University of California, Berkeley).
“Golden Apple Award” for Distinguished Teaching, awarded by the Social Sciences Division, University of California, Santa Cruz.
National Science Foundation Grant to Study Capital Jury Decisionmaking
Santa Cruz Alumni Association Distinguished Teaching Award, University of California, Santa Cruz.
United States Department of Health & Human Services/Urban Institute, “Effects of Incarceration on Children, Families, and LowIncome Communities” Project.

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American Association for the Advancement of Science/American Academy of Forensic Science Project: “Scientific Evidence Summit” Planning Committee.

Teacher of the Year (UC Santa Cruz Re-Entry Students’ Award).

2000

Invited Participant White House Forum on the Uses of Science and Technology to Improve National Crime and Prison Policy.

Excellence in Teaching Award (Academic Senate Committee on Teaching).

Joint American Association for the Advancement of ScienceAmerican Bar Association Science and Technology Section National Conference of Lawyers and Scientists.

1999

American Psychology-Law Society Presidential Initiative Invitee (“Reviewing the Discipline: A Bridge to the Future”)

National Science Foundation Grant to Study Capital Jury Decisionmaking (renewal and extension).

1997

National Science Foundation Grant to Study Capital Jury Decisionmaking.

1996

Teacher of the Year (UC Santa Cruz Re-Entry Students’ Award).

1995

Gordon Allport Intergroup Relations Prize (Honorable Mention)

Excellence in Teaching Convocation, Social Sciences Division

1994

Outstanding Contributions to Preservation of Constitutional Rights, California Attorneys for Criminal Justice.

1992

Psychology Undergraduate Student Association Teaching Award

SR 43 Grant for Policy-Oriented Research With Linguistically Diverse Minorities

1991

Alumni Association Teaching Award (“Favorite Professor”)

1990

Prison Law Office Award for Contributions to Prison Litigation

1989

UC Mexus Award for Comparative Research on Mexican Prisons

1976

Hilmer Oehlmann Jr. Award for Excellence in Legal Writing at Stanford Law School

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1975-76 Law and Psychology Fellow, Stanford Law School

1974-76 Russell Sage Foundation Residency in Law and Social Science

1974

Gordon Allport Intergroup Relations Prize, Honorable Mention

1969-71 University Fellow, Stanford University

1969-74 Society of Sigma Xi

1969

B.A. Degree Magna cum laude with Honors in Psychology

Phi Beta Kappa

1967-1969 University Scholar, University of Pennsylvania

UNIVERSITY SERVICE AND ADMINISTRATION

2010-2016 2010-2014 2009 2004-2006 1998-2002 1994-1998 1992-1995 1995 (Fall) 1995-1996 1990-1992 1991-1992
1984-1986

Director, Legal Studies Program Director, Graduate Program in Social Psychology Chair, Legal Studies Review Committee Chair, Committee on Academic Personnel Chair, Department of Psychology Chair, Department of Sociology Chair, Legal Studies Program Committee on Academic Personnel University Committee on Academic Personnel (UCAP) Committee on Academic Personnel Chair, Social Science Division Academic Personnel Committee Chair, Committee on Privilege and Tenure

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WRITINGS AND OTHER CREATIVE ACTIVITIES IN PROGRESS

Books:
Counting Casualties in the War on Prisoners: Toward a Just and Lasting Peace (working title, in preparation).
Articles:
“The Psychological Foundations of Capital Mitigation: Why Social Historical Factors Are Central to Assessing Culpability,” in preparation.

PUBLISHED WRITINGS AND CREATIVE ACTIVITIES Books

2020 2014
2006 2005

Criminality in Context: The Psychological Foundations of Criminal Justice Reform. Washington, DC: American Psychological Association Books.
The Growth of Incarceration in the United States: Exploring the Causes and Consequences (with Jeremy Travis, Bruce Western, et al.). [Report of the National Academy of Sciences Committee on the Causes and Consequences of High Rates of Incarceration in the United States.] Washington, DC: National Academy Press.
Reforming Punishment: Psychological Limits to the Pains of Imprisonment, Washington, DC: American Psychological Association Books.
Death by Design: Capital Punishment as a Social Psychological System. New York: Oxford University Press.

Monographs and Technical Reports

1989

Employment Testing and Employment Discrimination (with A. Hurtado). Technical Report for the National Commission on Testing and Public Policy. New York: Ford Foundation.

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Articles in Professional Journals and Book Chapters

2020 2019

“Solitary Confinement, Loneliness, and Psychological Harm,” in Jules Lobel and Peter Scharff Smith (Eds.), Solitary Confinement: Effects, Practices, and Pathways to Reform (129-152). New York: Oxford University Press.
“Continuing to Acknowledge the Power of Dehumanizing Environments: Responding to Haslam, et al. (2019) and Le Texier (2019)” (with Philip Zimbardo), American Psychologist, in press.
“Afterword,” in Robert Johnson, Condemned to Die: Life Under Sentence of Death (pp. 136-141). Second Edition. New York: Routledge.
“Changing correctional culture: Exploring the role of U.S.-Norway exchange in placing health and well-being at the center of U.S. prison reform” (with Cyrus Ahalt, Brie Williams, and Kim Ekhaugen), American Journal of Public Health, in press.

2018

“Restricting the Use of Solitary Confinement,” Annual Review of Criminology, 1, 285-310.
“Death Qualification in Black and White: Racialized DecisionMaking and Death-Qualified Juries” (with Mona Lynch), Law & Policy, in press.
“Balancing the Rights to Protection and Participation: A Call for Expanded Access to Ethically Conducted Correctional Research. Journal of General Internal Medicine, 33(22). DOI: 10.1007/s11606-018-4318-9.
“The Plight of Long-Term Mentally-Ill Prisoners” (with Camille Conrey and Roxy Davis), in Kelly Frailing and Risdon Slate (Eds.), The Criminalization of Mental Illness (pp. 163-180). Durham, NC: Carolina Academic Press.
“The Psychological Effects of Solitary Confinement: A Systematic Critique,” Crime and Justice, 47, 365-416.
“The Media’s Impact on the Right to a Fair Trial: A Content Analysis of Pretrial Publicity in Capital Cases (with Shirin Bakhshay), Psychology, Public Policy, and Law, 24, 326-346.

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2017

“Mechanisms of Moral Disengagement and Prisoner Abuse” (with Joanna Weill). Analyses of Social Issues and Public Policy, 17, 286318.
“‘Madness’ and Penal Confinement: Observations on Mental Illness and Prison Pain,” Punishment and Society, 19, 310-326.
“Contexts of Ill-Treatment: The Relationship of Captivity and Prison Confinement to Cruel, Inhuman, or Degrading Treatment and Torture” (with Shirin Bakhshay), in Metin Başoğlu (Ed.), Torture and Its Definition in International Law: An Interdisciplinary Approach (pp.139-178). New York: Oxford.
Special Issue: “Translating Research into Policy to Advance Correctional Health” (guest editor with B. Williams, C. Ahalt, S. Allen, & J. Rich), Part II, International Journal of Prisoner Health, 13, 137-227.
“Reducing the Use and Impact of Solitary Confinement in Corrections” (with Cyrus Ahalt, Sarah Rios, Matthew Fox, David Farabee, and Brie Williams), International Journal of Prisoner Health, 13, 41-48.

2016

“Examining Jail Isolation: What We Don’t Know Can Be Profoundly Harmful” (with Joanna Weill, Shirin Bakhshay, and Tiffany Winslow), The Prison Journal, 96, 126-152.
“On Structural Evil: Disengaging From Our Moral Selves,” Review of the book Moral Disengagement: How People Do Harm and Live With Themselves, by A. Bandura], PsycCRITIQUES, 61(8).

2015

“When Did Prisons Become Acceptable Mental Healthcare Facilities?,” Report of the Stanford Law School Three Strikes Project (with Michael Romano et al.) [available at: http://law.stanford.edu/wpcontent/uploads/sites/default/files/childpage/632655/doc/slspublic/Report_v12.pdf ].
“Emotion, Authority, and Death: (Raced) Negotiations in Capital Jury Negotiations” (with Mona Lynch), Law & Social Inquiry, 40, 377-405.

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“Prison Overcrowding,” in B. Cutler & P. Zapf (Eds.), APA Handbook of Forensic Psychology (pp. 415-436). Washington, DC: APA Books.
“The Death Penalty” (with Joanna Weill & Mona Lynch), in B. Cutler & P. Zapf (Eds.), APA Handbook of Forensic Psychology (pp. 451-510). Washington, DC: APA Books.
“‘Prisonization’ and Latinas in Alternative High Schools” (with Aida Hurtado & Ruby Hernandez), in J. Hall (Ed.), Routledge Studies in Education and Neoliberalism: Female Students and Cultures of Violence in the City (pp. 113-134). Florence, KY: Routledge.

2014

“How Healthcare Reform Can Transform the Health of Criminal Justice-Involved Individuals” (with Josiah Rich, et al.), Health Affairs, 33:3 (March), 1-6.

2013

“Foreword,” for H. Toch, Organizational Change Through Individual Empowerment: Applying Social Psychology in Prisons and Policing. Washington, DC: APA Books (in press).
“Foreword,” for J. Ashford & M. Kupferberg, Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers. New York: Oxford University Press.

2012

“Politicizing Crime and Punishment: Redefining ‘Justice’ to Fight the ‘War on Prisoners,’” West Virginia Law Review, 114, 373-414.
“Prison Effects in the Age of Mass Incarceration,” Prison Journal, 92, 1-24.
“The Psychological Effects of Imprisonment,” in J. Petersilia & K. Reitz (Eds.), Oxford Handbook of Sentencing and Corrections (pp. 584-605). New York: Oxford University Press.

2011

“The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement,” American Criminal Law Review, 48, 121-141. [Reprinted in: S. Ferguson (Ed.), Readings in Race, Gender, Sexuality, and Social Class. Sage Publications (2012).]
“Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the ‘Empathic Divide’” (with Mona Lynch), Law and Society Review, 45, 69-102.

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“Getting to the Point: Attempting to Improve Juror Comprehension of Capital Penalty Phase Instructions" (with Amy Smith), Law and Human Behavior, 35, 339-350.
“Where the Boys Are: Macro and Micro Considerations for the Study of Young Latino Men’s Educational Achievement” (with A. Hurtado & J. Hurtado), in P. Noguera & A. Hurtado (Eds.), Understanding the Disenfranchisement of Latino Males: Contemporary Perspectives on Cultural and Structural Factors (pp. 101-121). New York: Routledge Press.
“Looking Across the Empathic Divide: Racialized Decision-Making on the Capital Jury” (with Mona Lynch), Michigan State Law Review, 2011, 573-608.

2010

“Demonizing the ‘Enemy’: The Role of Science in Declaring the ‘War on Prisoners,’” Connecticut Public Interest Law Review, 9, 139-196.
“Hiding From the Death Penalty,” Huffington Post, July 26, 2010 [www.huffingtonpost.com/craig-haney/hiding-from-the-deathpen-pen_b_659940.html]; reprinted in Sentencing and Justice Reform Advocate, 2, 3 (February, 2011).

2009

“Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination” (with Mona Lynch), Law and Human Behavior, 33, 481-496.
“The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful,” Prison Service Journal UK (Solitary Confinement Special Issue), Issue 181, 12-20. [Reprinted: California Prison Focus, #36, 1, 14-15 (2011).]
“The Stanford Prison Experiment,” in John Levine & Michael Hogg (Eds.), Encyclopedia of Group Processes and Intergroup Relations. Thousand Oaks, CA: Sage Publications.
“Media Criminology and the Death Penalty,” DePaul Law Review, 58, 689-740. (Reprinted: Capital Litigation Update, 2010.)
“On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence,” University of Missouri-Kansas City Law Review, 77, 911-946.

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“Persistent Dispositionalism in Interactionist Clothing: Fundamental Attribution Error in Explaining Prison Abuse,” (with P. Zimbardo), Personality and Social Psychology Bulletin, 35, 807814.

2008

“Counting Casualties in the War on Prisoners,” University of San Francisco Law Review, 43, 87-138.
“Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation,” Hofstra Law Review, 36, 835-882.
“A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons,” Criminal Justice and Behavior, 35, 956-984.
“The Consequences of Prison Life: Notes on the New Psychology of Prison Effects,” in D. Canter & R. Zukauskiene (Eds.), Psychology and Law: Bridging the Gap (pp. 143-165). Burlington, VT: Ashgate Publishing.
“The Stanford Prison Experiment,” in J. Bennett & Y. Jewkes (Eds.), Dictionary of Prisons (pp. 278-280). Devon, UK: Willan Publishers.
“Capital Mitigation,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 60-63). Volume I. Thousand Oaks, CA: Sage Publications.
Death Qualification of Juries,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 190-192). Volume I. Thousand Oaks, CA: Sage Publications.
“Stanford Prison Experiment,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 756-757) (with P. Zimbardo). Volume II. Thousand Oaks, CA: Sage Publications.
“Supermax Prisons,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 787-790). Volume II. Thousand Oaks, CA: Sage Publications.

2006

“The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions,” Washington University Journal of Law & Policy, 22, 265-293. [Reprinted in: N. Berlatsky, Opposing Viewpoints: America’s Prisons. Florence, KY: Cengage Learning, 2010.]

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“Exonerations and Wrongful Condemnations: Expanding the Zone of Perceived Injustice in Capital Cases,” Golden Gate Law Review, 37, 131-173.
“Preface,” D. Jones (Ed.), Humane Prisons. San Francisco, CA: Radcliffe Medical Press.

2005

“The Contextual Revolution in Psychology and the Question of Prison Effects,” in Alison Liebling and Shadd Maruna (Eds.), The Effects of Imprisonment (pp. 66-93). Devon, UK: Willan Publishing.
“Achieving Educational Equity: Beyond Individual Measures of Merit,” (with A. Hurtado), Harvard Journal of Hispanic Policy, 17, 87-92.
“Conditions of Confinement for Detained Asylum Seekers Subject to Expedited Removal,” in M. Hetfield (Ed.), Report on Asylum Seekers in Expedited Removal. Volume II: Expert Reports. Washington, DC: United States Commission on International Religious Freedom.

2004

“Special Issue on the Death Penalty in the United States” (co-edited with R. Weiner), Psychology, Public Policy, and Law, 10, 374-621.
“Death Is Different: An Editorial Introduction” (with R. Wiener), Psychology, Public Policy, and Law, 10, 374-378.
“The Death Penalty in the United States: A Crisis of Conscience” (with R. Wiener), Psychology, Public Policy, and Law, 10, 618-621.
“Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide,” DePaul Law Review, 53, 1557-1590.
“Capital Constructions: Newspaper Reporting in Death Penalty Cases” (with S. Greene), Analyses of Social Issues and Public Policy (ASAP), 4, 1-22.
“Abu Ghraib and the American Prison System,” The Commonwealth, 98 (#16), 40-42.
“Disciplinary Segregation,” in Mary Bosworth (Ed.), Encyclopedia of U.S. Prisons and Correctional Facilities (240-244). Volume 1. Thousand Oaks, CA: Sage Publications.

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“Super-Maximum Secure Prisons,” in Mary Bosworth (Ed.), Encyclopedia of U.S. Prisons and Correctional Facilities (pp. 938944). Volume 2. Thousand Oaks, CA: Sage Publications.

2003

“Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency (special issue on mental health and the criminal justice system), 49, 124-156. [Reprinted in: Roesch, R., & Gagnon, N. (Eds.), Psychology and Law: Criminal and Civil Perspectives. Hampshire, UK: Ashgate (2007).]
“The Psychological Impact of Incarceration: Implications for PostPrison Adjustment,” in Travis, J., & Waul, M. (Eds.), Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families, and Communities (pp. 33-66). Washington, DC: Urban Institute Press.
“Comments on “Dying Twice”: Death Row Confinement in the Age of the Supermax,” Capital University Law Review.

2002

“Making Law Modern: Toward a Contextual Model of Justice, Psychology, Public Policy, and Law, 7, 3-63.
“Psychological Jurisprudence: Taking Psychology and Law into the Twenty-First Century,” (with John Darley, Sol Fulero, and Tom Tyler), in J. Ogloff (Ed.), Taking Psychology and Law into the Twenty-First Century (pp. 35-59). New York: Kluwer Academic/ Plenum Publishing.
“Science, Law, and Psychological Injury: The Daubert Standards and Beyond,” (with Amy Smith), in Schultz, I., Brady, D., and Carella, S., The Handbook of Psychological Injury (pp. 184-201). Chicago, IL: American Bar Association. [CD-ROM format]

2001

“Vulnerable Offenders and the Law: Treatment Rights in Uncertain Legal Times” (with D. Specter). In J. Ashford, B. Sales, & W. Reid (Eds.), Treating Adult and Juvenile Offenders with Special Needs (pp. 51-79). Washington, D.C.: American Psychological Association.
“Afterword,” in J. Evans (Ed.), Undoing Time (pp. 245-256). Boston, MA: Northeastern University Press.

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2000

“Discrimination and Instructional Comprehension: Guided Discretion, Racial Bias, and the Death Penalty” (with M. Lynch), Law and Human Behavior, 24, 337-358.

“Cycles of Pain: Risk Factors in the Lives of Incarcerated Women and Their Children,” (with S. Greene and A. Hurtado), Prison Journal, 80, 3-23.

1999

“Reflections on the Stanford Prison Experiment: Genesis, Transformations, Consequences (‘The SPE and the Analysis of Institutions’),” In Thomas Blass (Ed.), Obedience to Authority: Current Perspectives on the Milgram Paradigm (pp. 221-237). Hillsdale, NJ: Erlbaum.
“Ideology and Crime Control,” American Psychologist, 54, 786-788.

1998

“The Past and Future of U.S. Prison Policy: Twenty-Five Years After the Stanford Prison Experiment,” (with P. Zimbardo), American Psychologist, 53, 709-727. [Reprinted in special issue of Norweigian journal as: USAs fengselspolitikk i fortid og fremtid, Vardoger, 25, 171-183 (2000); in H. Tischler (Ed.), Debating Points: Crime and Punishment. Englewood Cliffs, NJ: Prentice-Hall (2001); Annual Editions: Criminal Justice. Guilford, CT: Dushkin/McGrawHill, in press; Herman, Peter (Ed.), The American Prison System (pp. 17-43) (Reference Shelf Series). New York: H.W. Wilson (2001); and in Edward Latessa & Alexander Holsinger (Eds.), Correctional Contexts: Contemporary and Classical Readings. Fourth Edition. Oxford University Press (2010).]
“Riding the Punishment Wave: On the Origins of Our Devolving Standards of Decency,” Hastings Women’s Law Journal, 9, 27-78.
“Becoming the Mainstream: “Merit,” Changing Demographics, and Higher Education in California” (with A. Hurtado and E. Garcia), La Raza Law Journal, 10, 645-690.

1997

“Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,” (with M. Lynch), New York University Review of Law and Social Change, 23, 477-570.
“Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law,” Psychology, Public Policy, and Law, 3, 499-588.

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“Commonsense Justice and the Death Penalty: Problematizing the ‘Will of the People,’” Psychology, Public Policy, and Law, 3, 303337.
“Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death,” Stanford Law Review, 49, 1447-1486.
“Mitigation and the Study of Lives: The Roots of Violent Criminality and the Nature of Capital Justice.” In James Acker, Robert Bohm, and Charles Lanier, America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press, 343-377.
“Clarifying Life and Death Matters: An Analysis of Instructional Comprehension and Penalty Phase Arguments” (with M. Lynch), Law and Human Behavior, 21, 575-595.
“Psychological Secrecy and the Death Penalty: Observations on ‘the Mere Extinguishment of Life,’” Studies in Law, Politics, and Society, 16, 3-69.

1995

“The Social Context of Capital Murder: Social Histories and the Logic of Capital Mitigation,” Santa Clara Law Review, 35, 547-609. [Reprinted in part in David Papke (Ed.), Law and Popular Culture, Lexis/Nexis Publications, 2011)].
“Taking Capital Jurors Seriously,” Indiana Law Journal, 70, 12231232.
“Death Penalty Opinion: Myth and Misconception,” California Criminal Defense Practice Reporter, 1995(1), 1-7.

1994

“The Jurisprudence of Race and Meritocracy: Standardized Testing and ‘Race-Neutral’ Racism in the Workplace,” (with A. Hurtado), Law and Human Behavior, 18, 223-248.
“Comprehending Life and Death Matters: A Preliminary Study of California’s Capital Penalty Instructions” (with M. Lynch), Law and Human Behavior, 18, 411-434.
“Felony Voir Dire: An Exploratory Study of Its Content and Effect,” (with C. Johnson), Law and Human Behavior, 18, 487-506.

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“Broken Promise: The Supreme Court’s Response to Social Science Research on Capital Punishment” (with D. Logan), Journal of Social Issues (special issue on the death penalty in the United States), 50, 75-101.
“Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” (with L. Sontag and S. Costanzo), Journal of Social Issues (special issue on the death penalty in the United States), 50, 149-176. [Reprinted in Koosed, M. (Ed.), Capital Punishment. New York: Garland Publishing (1995).]
“Modern’ Death Qualification: New Data on Its Biasing Effects,” (with A. Hurtado and L. Vega), Law and Human Behavior, 18, 619633.
“Processing the Mad, Badly,” Contemporary Psychology, 39, 898899.
“Language is Power,” Contemporary Psychology, 39, 1039-1040.

1993

“Infamous Punishment: The Psychological Effects of Isolation,” National Prison Project Journal, 8, 3-21. [Reprinted in Marquart, James & Sorensen, Jonathan (Eds.), Correctional Contexts: Contemporary and Classical Readings (pp. 428-437). Los Angeles: Roxbury Publishing (1997); Alarid, Leanne & Cromwell, Paul (Eds.), Correctional Perspectives: Views from Academics, Practitioners, and Prisoners (pp. 161-170). Los Angeles: Roxbury Publishing (2001).]
“Psychology and Legal Change: The Impact of a Decade,” Law and Human Behavior, 17, 371-398. [Reprinted in: Roesch, R., & Gagnon, N. (Eds.), Psychology and Law: Criminal and Civil Perspectives. Hampshire, UK: Ashgate (2007).]

1992

“Death Penalty Attitudes: The Beliefs of Death-Qualified Californians,” (with A. Hurtado and L. Vega). Forum, 19, 43-47.
“The Influence of Race on Sentencing: A Meta-Analytic Review of Experimental Studies.” (with L. Sweeney). Special issue on Discrimination and the Law. Behavioral Science and Law, 10, 179195.

1991

“The Fourteenth Amendment and Symbolic Legality: Let Them Eat Due Process,” Law and Human Behavior, 15, 183-204.

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1988

“In Defense of the Jury,” Contemporary Psychology, 33, 653-655.

1986

“Civil Rights and Institutional Law: The Role of Social Psychology in Judicial Implementation,” (with T. Pettigrew), Journal of Community Psychology, 14, 267-277.

1984

“Editor’s Introduction. Special Issue on Death Qualification,” Law and Human Behavior, 8, 1-6.
“On the Selection of Capital Juries: The Biasing Effects of Death Qualification,” Law and Human Behavior, 8, 121-132.
“Examining Death Qualification: Further Analysis of the Process Effect,” Law and Human Behavior, 8, 133-151.
“Evolving Standards and the Capital Jury,” Law and Human Behavior, 8, 153-158.
“Postscript,” Law and Human Behavior, 8, 159.
“Social Factfinding and Legal Decisions: Judicial Reform and the Use of Social Science.” In Muller, D., Blackman, D., and Chapman, A. (Eds.), Perspectives in Psychology and Law. New York: John Wiley, pp. 43-54.

1983

“The Future of Crime and Personality Research: A Social Psychologist’s View,” in Laufer, W. and Day, J. (Eds.), Personality Theory, Moral Development, and Criminal Behavioral Behavior. Lexington, Mass.: Lexington Books, pp. 471-473.
“The Good, the Bad, and the Lawful: An Essay on Psychological Injustice,” in Laufer, W. and Day, J. (Eds.), Personality Theory, Moral Development, and Criminal Behavior. Lexington, Mass.: Lexington Books, pp. 107-117.
“Ordering the Courtroom, Psychologically,” Jurimetrics, 23, 321324.

1982

“Psychological Theory and Criminal Justice Policy: Law and Psychology in the ‘Formative Era,’” Law and Human Behavior, 6, 191-235. [Reprinted in Presser, S. and Zainaldin, J. (Eds.), Law and
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American History: Cases and Materials. Minneapolis, MN: West Publishing, 1989; and in C. Kubrin, T. Stucky & A. Tynes (Eds.) Introduction to Criminal Justice: A Sociological Perspective. Palo Alto, CA: Stanford University Press (2012).]
“Data and Decisions: Social Science and Judicial Reform,” in P. DuBois (Ed.), The Analysis of Judicial Reform. Lexington, Mass.: D.C. Heath, pp. 43-59.
“Employment Tests and Employment Discrimination: A Dissenting Psychological Opinion,” Industrial Relations Law Journal, 5, pp. 186.
“To Polygraph or Not: The Effects of Preemployment Polygraphing on Work-Related Attitudes,” (with L. White and M. Lopez), Polygraph, 11, 185-199.

1981

“Death Qualification as a Biasing Legal Process,” The Death Penalty Reporter, 1 (10), pp. 1-5. [Reprinted in Augustus: A Journal of Progressive Human Sciences, 9(3), 9-13 (1986).]

1980

“Juries and the Death Penalty: Readdressing the Witherspoon Question,” Crime and Delinquency, October, pp. 512-527.
“Psychology and Legal Change: On the Limits of a Factual Jurisprudence,” Law and Human Behavior, 6, 191-235. [Reprinted in Loh, Wallace (Ed.), Social Research and the Judicial Process. New York: Russell Sage, 1983.]
“The Creation of Legal Dependency: Law School in a Nutshell” (with M. Lowy), in R. Warner (Ed.), The People’s Law Review. Reading, Mass.: Addison-Wesley, pp. 36-41.
“Television Criminology: Network Illusions of Criminal Justice Realities” (with J. Manzolati), in E. Aronson (Ed.), Readings on the Social Animal. San Francisco, W.H. Freeman, pp. 125-136.

1979

“A Psychologist Looks at the Criminal Justice System,” in A. Calvin (Ed.), Challenges and Alternatives to the Criminal Justice System. Ann Arbor: Monograph Press, pp. 77-85.
“Social Psychology and the Criminal Law,” in P. Middlebrook (Ed.), Social Psychology and Modern Life. New York: Random House, pp. 671-711.

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“Bargain Justice in an Unjust World: Good Deals in the Criminal Courts” (with M. Lowy), Law and Society Review, 13, pp. 633-650. [Reprinted in Kadish, Sanford and Paulsen, Robert (Eds.), Criminal Law and Its Processes. Boston: Little, Brown, 1983.]

1977

“Prison Behavior” (with P. Zimbardo), in B. Wolman (Ed.), The Encyclopedia of Neurology, Psychiatry, Psychoanalysis, and Psychology, Vol. IX, pp. 70-74.
“The Socialization into Criminality: On Becoming a Prisoner and a Guard” (with P. Zimbardo), in J. Tapp and F. Levine (Eds.), Law, Justice, and the Individual in Society: Psychological and Legal Issues (pp. 198-223). New York: Holt, Rinehart, and Winston.

1976

“The Play’s the Thing: Methodological Notes on Social Simulations,” in P. Golden (Ed.), The Research Experience, pp. 177190. Itasca, IL: Peacock.

1975

“The Blackboard Penitentiary: It’s Tough to Tell a High School from a Prison” (with P. Zimbardo). Psychology Today, 26ff.
“Implementing Research Results in Criminal Justice Settings,” Proceedings, Third Annual Conference on Corrections in the U.S. Military, Center for Advanced Study in the Behavioral Sciences, June 6-7.
“The Psychology of Imprisonment: Privation, Power, and Pathology” (with P. Zimbardo, C. Banks, and D. Jaffe), in D. Rosenhan and P. London (Eds.), Theory and Research in Abnormal Psychology. New York: Holt Rinehart, and Winston. [Reprinted in: Rubin, Z. (Ed.), Doing Unto Others: Joining, Molding, Conforming, Helping, Loving. Englewood Cliffs: Prentice-Hall, 1974. Brigham, John, and Wrightsman, Lawrence (Eds.) Contemporary Issues in Social Psychology. Third Edition. Monterey: Brooks/Cole, 1977. Calhoun, James Readings, Cases, and Study Guide for Psychology of Adjustment and Human Relationships. New York: Random House, 1978; translated as: La Psicologia del encarcelamiento: privacion, poder y patologia, Revisita de Psicologia Social, 1, 95-105 (1986).]

1973

“Social Roles, Role-Playing, and Education” (with P. Zimbardo), The Behavioral and Social Science Teacher, Fall, 1(1), pp. 24-45.

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[Reprinted in: Zimbardo, P., and Maslach, C. (Eds.) Psychology For Our Times. Glenview, Ill.: Scott, Foresman, 1977. Hollander, E. and Hunt, R. (Eds.) Current Perspectives in Social Psychology. Third Edition. New York: Oxford University Press, 1978.]
“The Mind is a Formidable Jailer: A Pirandellian Prison” (with P. Zimbardo, C. Banks, and D. Jaffe), The New York Times Magazine, April 8, Section 6, 38-60. [Reprinted in Krupat, E. (Ed.), Psychology Is Social: Readings and Conversations in Social Psychology. Glenview, Ill.: Scott, Foresman, 1982.]
“Interpersonal Dynamics in a Simulated Prison” (with C. Banks and P. Zimbardo), International Journal of Criminology and Penology, 1, pp. 69-97. [Reprinted in: Steffensmeier, Darrell, and Terry, Robert (Eds.) Examining Deviance Experimentally. New York: Alfred Publishing, 1975; Golden, P. (Ed.) The Research Experience. Itasca, Ill.: Peacock, 1976; Leger, Robert (Ed.) The Sociology of Corrections. New York: John Wiley, 1977; A kiserleti tarsadalomlelektan foarma. Budapest, Hungary: Gondolat Konyvkiado, 1977; Johnston, Norman, and Savitz, L. Justice and Corrections. New York: John Wiley, 1978; Research Methods in Education and Social Sciences. The Open University, 1979; Goldstein, J. (Ed.), Modern Sociology. British Columbia: Open Learning Institute, 1980; Ross, Robert R. (Ed.), Prison Guard/ Correctional Officer: The Use and Abuse of Human Resources of Prison. Toronto: Butterworth’s 1981; Monahan, John, and Walker, Laurens (Eds.), Social Science in Law: Cases, Materials, and Problems. Foundation Press, 1985: Siuta, Jerzy (Ed.), The Context of Human Behavior. Jagiellonian University Press, 2001; Ferguson, Susan (Ed.), Mapping the Social Landscape: Readings in Sociology. St. Enumclaw, WA: Mayfield Publishing, 2001 & 2010; Pethes, Nicolas (Ed.), Menschenversuche (Experiments with Humans). Frankfurt, Germany: Suhrkamp Verlag, 2006.]
“A Study of Prisoners and Guards” (with C. Banks and P. Zimbardo). Naval Research Reviews, 1-17. [Reprinted in Aronson, E. (Ed.) Readings About the Social Animal. San Francisco: W.H. Freeman, 1980; Gross, R. (Ed.) Key Studies in Psychology. Third Edition. London: Hodder & Stoughton, 1999; Collier, C. (Ed.), Basic Themes in Law and Jurisprudence. Anderson Publishing, 2000.]
MEMBERSHIP/ACTIVITIES IN PROFESSIONAL ASSOCIATIONS
American Psychological Association
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American Psychology and Law Society Law and Society Association National Council on Crime and Delinquency
INVITED ADDRESSES AND PAPERS PRESENTED AT PROFESSIONAL ACADEMIC MEETINGS AND RELATED SETTINGS (SELECTED)

2019 2018

“The Recent History of Corrections in Norway and the United States,” Plenary Address, Justice Reinvestment Summit, Salem, OR, February.
“The Dimensions of Suffering in Solitary Confinement,” Plenary Address, Washington College of Law at American University, Washington, DC, March.
“Implementing Norwegian Correctional Principles to Change Prison Culture in Oregon Prisons,” Invited Address, Oregon Department of Corrections Leadership Team, Salem, OR, June.
“Humanizing American Jails and Prisons,” Center for Court Innovation, International Summit, New York, NY, June.
“From the Stanford Prison Experiment to Supermax Prisons and Back Again: Changing the Narrative in Criminal Justice Reform,” Invited Address, Norwegian Correctional Academy, Oslo, Norway, September.
Plenary Address, “Perspectives on Solitary Confinement,” Northwestern University Law Review Symposium, Chicago, IL, November.
“The Art and Science of Capital Mitigation,” Federal Death Penalty Training Conference, Atlanta, Georgia, June.
“From Eastern State Penitentiary to Supermax Prisons,” Safe Alternatives to Segregation Conference, Vera Institute of Justice, Philadelphia, PA, June.
Plenary Address, “Advancing Prisoners’ Rights Through Law and Psychology,” Denver Law Prisoners’ Advocates Conference, University of Denver Sturm College of Law, Denver, CO, October.

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2017

“In Praise of Positivism in the Age of ‘Fake News’ and ‘Alternative Facts,’” Research Frontiers Conference, Santa Cruz, CA, October.
“Neuroscience in Policy: Solitary Confinement in California,” Law & Neuroscience Conference, San Francisco, CA, February.
“In My Solitude: The Detrimental Effects of Solitary Confinement on the Brain,” Exploratorium-Fisher Bay Observation Gallery, San Francisco, CA, February.
“Brief History of Correctional Reform in the United States,” Community Corrections Partnership/Smart on Crime Community Forum, Santa Cruz Civic Auditorium, May.
“Reducing and Eliminating the Use of Solitary Confinement in Irish Prisons,” Joint Conference with the Irish Prison Service, Department of Justice, and Irish Penal Reform Trust, Dublin, Ireland, June.
“The Emerging Consensus on When, for How Long, and On Whom Solitary Confinement Should Ever Be Imposed,” Leadership, Culture and Managing Prisons: Knowledge Exchange between the USA and Europe (LEADERS), Trinity College, Dublin, Ireland, June.
“Sykes and Solitary: The Transformation of the Penal Subject in the Devolution from a ‘Society of Captives’ to Supermax Prisons,” Power and Authority in Modern Prisons: Essays in Memory of Gresham Sykes Workshop, Centre for Prison Research, Cambridge University, Cambridge, England, September.
“Context Is Everything: The Social Psychology of Imprisonment,” Joint USA/Scandinavian Correctional Exchange Program, Oslo, Norway, September.

2016

“The Culture of Punishment,” American Justice Summit, New York, January.
“Mental Illness and Prison Confinement,” Conference on Race, Class, Gender and Ethnicity (CRCGE), University of North Carolina Law School, Chapel Hill, NC, February.

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“Reforming the Treatment of California’s Mentally Ill Prisoners: Coleman and Beyond,” Meeting of the UC Consortium on Criminal Justice & Health, San Francisco, April.
“Bending Toward Justice? The Urgency (and Possibility) of Criminal Justice Reform,” UC Santa Cruz Alumni Association “Original Thinkers” Series, San Jose, CA (March), and Museum of Tolerance, Los Angeles (April).
“Isolation and Mental Health,” International and Inter-Disciplinary Perspectives on Prolonged Solitary Confinement, University of Pittsburgh Law School, Pittsburgh, PA, April.
“Mechanisms of Moral Disengagement in the Treatment of Prisoners” (with Joanna Weill), Conference of the Society for the Study of Social Issues, Minneapolis, June.

2015

“Reforming the Criminal Justice System,” Bipartisan Summit on Criminal Justice Reform, American Civil Liberties Union/Koch Industries co-sponsored, Washington, DC, March.
“PrisonWorld: How Mass Incarceration Transformed U.S. Prisons, Impacted Prisoners, and Changed American Society,” Distinguished Faculty Research Lecture, UC Santa Cruz, March.
“Think Different, About Crime and Punishment,” Invited Lecture, UC Santa Cruz 50th Anniversary Alumni Reunion, April.
“The Intellectual Legacy of the Civil Rights Movement: Two FiftyYear Anniversaries,” College 10 Commencement Address, June.
“Race and Capital Mitigation,” Perspectives on Racial and Ethnic Bias for Capital and Non-Capital Lawyers, New York, September.
“The Dimensions of Suffering in Solitary Confinement,” Vera Institute of Justice, “Safe Alternatives to Solitary Confinement-A Human Dignity Approach” Conference, Washington, DC, September.
“Mental Health and Administrative Segregation,” Topical Working Group on the Use of Administrative Segregation in the U.S., National Institute of Justice/Department of Justice, Washington, DC, October.

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“The Psychological Effects of Segregated Confinement,” Ninth Circuit Court of Appeals “Corrections Summit,” Sacramento, CA, November.
“How Can the University of California Address Mass Incarceration in California and Beyond?,” Keynote Address, Inaugural Meeting of the UC Consortium on Criminal Justice & Health, San Francisco, November.

2014

“Solitary Confinement: Legal, Clinical, and Neurobiological Perspectives,” American Association for the Advancement of Science (AAAS), Chicago, IL February.
“Overcrowding, Isolation, and Mental Health Care, Prisoners’ Access to Justice: Exploring Legal, Medical, and Educational Rights,” University of California, School of Law, Irvine, CA, February.
“The Continuing Significance of Death Qualification” (with Joanna Weill), Annual Conference of the American Psychology-Law Society, New Orleans, March.
“Using Psychology at Multiple Levels to Transform Adverse Conditions of Confinement,” Society for the Study of Social Issues Conference, Portland, OR, June.
“Humane and Effective Alternatives to Isolated Confinement,” American Civil Liberties Union National Prison Project Convening on Solitary Confinement, Washington, DC, September.
“Community of Assessment of Public Safety,” Community Assessment Project of Santa Cruz County, Year 20, Cabrillo College, November.
“Overview of National Academy of Sciences Report on Causes and Consequences of High Rates of Incarceration,” Chief Justice Earl Warren Institute on Law & Social Policy, Boalt Hall Law School, Berkeley, CA, November.
“Presidential Panel, Overview of National Academy of Sciences Report on Causes and Consequences of High Rates of Incarceration,” American Society for Criminology, San Francisco, November.

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“Presidential Panel, National Academy of Sciences Report on Consequences of High Rates of Incarceration on Individuals,” American Society for Criminology, San Francisco, November.
“Findings of National Academy of Sciences Committee on the Causes and Consequences of High Rates of Incarceration,” Association of Public Policy Analysis and Management Convention (APPAM), Albuquerque, NM, November.
“Politics and the Penal State: Mass Incarceration and American Society,” New York University Abu Dhabi International Scholars Program, Abu Dhabi, United Arab Emirates, December.

2013

“Isolation and Mental Health,” Michigan Journal of Race and Law Symposium, University of Michigan School of Law, Ann Arbor, MI, February.
“Social Histories of Capital Defendants” (with Joanna Weill), Annual Conference of Psychology-Law Society, Portland, OR, March.
“Risk Factors and Trauma in the Lives of Capital Defendants” (with Joanna Weill), American Psychological Association Annual Convention, Honolulu, HI, August.
“Bending Toward Justice: Psychological Science and Criminal Justice Reform,” Invited Plenary Address, American Psychological Association Annual Convention, Honolulu, HI, August.
“Severe Conditions of Confinement and International Torture Standards,” Istanbul Center for Behavior Research and Therapy, Istanbul, Turkey, December.

2012

“The Psychological Consequences of Long-term Solitary Confinement,” Joint Yale/Columbia Law School Conference on Incarceration and Isolation, New York, April.
“The Creation of the Penal State in America,” Managing Social Vulnerability: The Welfare and Penal System in Comparative Perspective, Central European University, Budapest, Hungary, July.

2011

“Tensions Between Psychology and the Criminal Justice System: On the Persistence of Injustice,” opening presentation, “A Critical Eye

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on Criminal Justice” lecture series, Golden Gate University Law School, San Francisco, CA, January.
“The Decline in Death Penalty Verdicts and Executions: The Death of Capital Punishment?” Presentation at “A Legacy of Justice” week, at the University of California, Davis King Hall Law School, Davis, CA, January.
“Invited Keynote Address: The Nature and Consequences of Prison Overcrowding—Urgency and Implications,” West Virginia School of Law, Morgantown, West Virginia, March.
“Symposium: The Stanford Prison Experiment—Enduring Lessons 40 Years Later,” American Psychological Association Annual Convention, Washington, DC, August.
“The Dangerous Overuse of Solitary Confinement: Pervasive Human Rights Violations in Prisons, Jails, and Other Places of Detention” Panel, United Nations, New York, New York, October.
“Criminal Justice Reform: Issues and Recommendation,” United States Congress, Washington, DC, November.

2010

“The Hardening of Prison Conditions,” Opening Address, “The Imprisoned” Arthur Liman Colloquium Public Interest Series, Yale Law School, New Haven, CN, March.
“Desensitization to Inhumane Treatment: The Pitfalls of Prison Work,” panel presentation at “The Imprisoned” Arthur Liman Colloquium Public Interest Series, Yale Law School, New Haven, CN, March.
“Mental Ill Health in Immigration Detention,” Department of Homeland Security/DOJ Office for Civil Rights and Civil Liberties, Washington, DC, September.

2009

“Counting Casualties in the War on Prisoners,” Keynote Address, at “The Road to Prison Reform: Treating the Causes and Conditions of Our Overburdened System,” University of Connecticut Law School, Hartford, CN, February.
“Defining the Problem in California’s Prison Crisis: Overcrowding and Its Consequences,” California Correctional Crisis Conference,” Hastings Law School, San Francisco, CA, March.

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2008

“Prisonization and Contemporary Conditions of Confinement,” Keynote Address, Women Defenders Association, Boalt Law School, University of California, November.
“Media Criminology and the Empathic Divide: The Continuing Significance of Race in Capital Trials,” Invited Address, Media, Race, and the Death Penalty Conference, DePaul University School of Law, Chicago, IL, March.
“The State of the Prisons in California,” Invited Opening Address, Confronting the Crisis: Current State Initiatives and Lasting Solutions for California’s Prison Conditions Conference, University of San Francisco School of Law, San Francisco, CA, March.
“Mass Incarceration and Its Effects on American Society,” Invited Opening Address, Behind the Walls Prison Law Symposium, University of California Davis School of Law, Davis, CA, March.

2007

“The Psychology of Imprisonment: How Prison Conditions Affect Prisoners and Correctional Officers,” United States Department of Justice, National Institute of Corrections Management Training for “Correctional Excellence” Course, Denver, CO, May.
“Statement on Psychologists, Detention, and Torture,” Invited Address, American Psychological Association Annual Convention, San Francisco, CA, August.
“Prisoners of Isolation,” Invited Address, University of Indiana Law School, Indianapolis, IN, October.
“Mitigation in Three Strikes Cases,” Stanford Law School, Palo Alto, CA, September.
“The Psychology of Imprisonment,” Occidental College, Los Angeles, CA, November.

2006

“Mitigation and Social Histories in Death Penalty Cases,” Ninth Circuit Federal Capital Case Committee, Seattle, WA, May.
“The Crisis in the Prisons: Using Psychology to Understand and Improve Prison Conditions,” Invited Keynote Address, Psi Chi (Undergraduate Psychology Honor Society) Research Conference, San Francisco, CA, May.

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“Exoneration and ‘Wrongful Condemnation’: Why Juries Sentence to Death When Life is the Proper Verdict,” Faces of Innocence Conference, UCLA Law School, April.
“The Continuing Effects of Imprisonment: Implications for Families and Communities,” Research and Practice Symposium on Incarceration and Marriage, United States Department of Health and Human Services, Washington, DC, April.
“Ordinary People, Extraordinary Acts,” National Guantanamo Teach In, Seton Hall School of Law, Newark, NJ, October.
“The Next Generation of Death Penalty Research,” Invited Address, State University of New York, School of Criminal Justice, Albany, NY, October.

2005

“The ‘Design’ of the System of Death Sentencing: Systemic Forms of ‘Moral Disengagement in the Administration of Capital Punishment, Scholar-in-Residence, invited address, Center for Social Justice, Boalt Hall School of Law (Berkeley), March.
“Humane Treatment for Asylum Seekers in U.S. Detention Centers,” United States House of Representatives, Washington, DC, March.
“Prisonworld: What Overincarceration Has Done to Prisoners and the Rest of Us,” Scholar-in-Residence, invited address, Center for Social Justice, Boalt Hall School of Law (Berkeley), March.
“Prison Conditions and Their Psychological Effects on Prisoners,” European Association for Psychology and Law, Vilnius, Lithuania, July.

2004

“Recognizing the Adverse Psychological Effects of Incarceration, With Special Attention to Solitary-Type Confinement and Other Forms of ‘Ill-Treatment’ in Detention,” International Committee of the Red Cross, Training Program for Detention Monitors, Geneva, Switzerland, November.
“Prison Conditions in Post-“War on Crime” Era: Coming to Terms with the Continuing Pains of Imprisonment,” Boalt Law School Conference, After the War on Crime: Race, Democracy, and a New Reconstruction, Berkeley, CA, October.

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“Cruel and Unusual? The United States Prison System at the Start of the 21st Century,” Invited speaker, Siebel Scholars Convocation, University of Illinois, Urbana, IL, October.
“The Social Historical Roots of Violence: Introducing Life Narratives into Capital Sentencing Procedures,” Invited Symposium, XXVIII International Congress of Psychology, Beijing, China, August.
“Death by Design: Capital Punishment as a Social Psychological System,” Division 41 (Psychology and Law) Invited Address, American Psychological Association Annual Convention, Honolulu, HI, July.
“The Psychology of Imprisonment and the Lessons of Abu Ghraib,” Commonwealth Club Public Interest Lecture Series, San Francisco, May.
“Restructuring Prisons and Restructuring Prison Reform,” Yale Law School Conference on the Current Status of Prison Litigation in the United States, New Haven, CN, May.
“The Effects of Prison Conditions on Prisoners and Guards: Using Psychological Theory and Data to Understand Prison Behavior,” United States Department of Justice, National Institute of Corrections Management Training Course, Denver, CO, May.
“The Contextual Revolution in Psychology and the Question of Prison Effects: What We Know about How Prison Affects Prisoners and Guards,” Cambridge University, Cambridge, England, April.
“Death Penalty Attitudes, Death Qualification, and Juror Instructional Comprehension,” American Psychology-Law Society, Annual Conference, Scottsdale, AZ, March.

2003

“Crossing the Empathic Divide: Race Factors in Death Penalty Decisionmaking,” DePaul Law School Symposium on Race and the Death Penalty in the United States, Chicago, October.
“Supermax Prisons and the Prison Reform Paradigm,” PACE Law School Conference on Prison Reform Revisited: The Unfinished Agenda, New York, October.
“Mental Health Issues in Supermax Confinement,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.

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“Roundtable on Capital Punishment in the United States: The Key Psychological Issues,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
“Psychology and Legal Change: Taking Stock,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
“Economic Justice and Criminal Justice: Social Welfare and Social Control,” Society for the Study of Social Issues Conference, January.
“Race, Gender, and Class Issues in the Criminal Justice System,” Center for Justice, Tolerance & Community and Barrios Unidos Conference, March.

2002

“The Psychological Effects of Imprisonment: Prisonization and Beyond.” Joint Urban Institute and United States Department of Health and Human Services Conference on “From Prison to Home.” Washington, DC, January.
“On the Nature of Mitigation: Current Research on Capital Jury Decisionmaking.” American Psychology and Law Society, MidWinter Meetings, Austin, Texas, March.
“Prison Conditions and Death Row Confinement.” New York Bar Association, New York City, June.

2001

“Supermax and Solitary Confinement: The State of the Research and the State of the Prisons.” Best Practices and Human Rights in Supermax Prisons: A Dialogue. Conference sponsored by University of Washington and the Washington Department of Corrections, Seattle, September.
“Mental Health in Supermax: On Psychological Distress and Institutional Care.” Best Practices and Human Rights in Supermax Prisons: A Dialogue. Conference sponsored by University of Washington and the Washington Department of Corrections, Seattle, September.
“On the Nature of Mitigation: Research Results and Trial Process and Outcomes.” Boalt Hall School of Law, University of California, Berkeley, August.

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“Toward an Integrated Theory of Mitigation.” American Psychological Association Annual Convention, San Francisco, CA, August.
Discussant: “Constructing Class Identities—The Impact of Educational Experiences.” American Psychological Association Annual Convention, San Francisco, CA, August.
“The Rise of Carceral Consciousness.” American Psychological Association Annual Convention, San Francisco, CA, August.

2000

“On the Nature of Mitigation: Countering Generic Myths in Death Penalty Decisionmaking,” City University of New York Second International Advances in Qualitative Psychology Conference, March.
“Why Has U.S. Prison Policy Gone From Bad to Worse? Insights From the Stanford Prison Study and Beyond,” Claremont Conference on Women, Prisons, and Criminal Injustice, March.
“The Use of Social Histories in Capital Litigation,” Yale Law School, April.
“Debunking Myths About Capital Violence,” Georgetown Law School, April.
“Research on Capital Jury Decisionmaking: New Data on Juror Comprehension and the Nature of Mitigation,” Society for Study of Social Issues Convention, Minneapolis, June.
“Crime and Punishment: Where Do We Go From Here?” Division 41 Invited Symposium, “Beyond the Boundaries: Where Should Psychology and Law Be Taking Us?” American Psychological Association Annual Convention, Washington, DC, August.

1999

“Psychology and the State of U.S. Prisons at the Millennium,” American Psychological Association Annual Convention, Boston, MA, August.
“Spreading Prison Pain: On the Worldwide Movement Towards Incarcerative Social Control,” Joint American Psychology-Law Society/European Association of Psychology and Law Conference, Dublin, Ireland, July.

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1998

“Prison Conditions and Prisoner Mental Health,” Beyond the Prison Industrial Complex Conference, University of California, Berkeley, September.

“The State of US Prisons: A Conversation,” International Congress of Applied Psychology, San Francisco, CA, August.

“Deathwork: Capital Punishment as a Social Psychological System,” Invited SPPSI Address, American Psychological Association Annual Convention, San Francisco, CA, August.

“The Use and Misuse of Psychology in Justice Studies: Psychology and Legal Change: What Happened to Justice?,” (panelist), American Psychological Association Annual Convention, San Francisco, CA, August.

“Twenty Five Years of American Corrections: Past and Future,” American Psychology and Law Society, Redondo Beach, CA, March.

1997

“Deconstructing the Death Penalty,” School of Justice Studies, Arizona State University, Tempe, AZ, October.
“Mitigation and the Study of Lives,” Invited Address to Division 41 (Psychology and Law), American Psychological Association Annual Convention, Chicago, August.

1996

“The Stanford Prison Experiment and 25 Years of American Prison Policy,” American Psychological Association Annual Convention, Toronto, August.

1995

“Looking Closely at the Death Penalty: Public Stereotypes and Capital Punishment,” Invited Address, Arizona State University College of Public Programs series on Free Speech, Affirmative Action and Multiculturalism, Tempe, AZ, April.
“Race and the Flaws of the Meritocratic Vision,” Invited Address, Arizona State University College of Public Programs series on Free Speech, Affirmative Action and Multiculturalism, Tempe, AZ, April.
“Taking Capital Jurors Seriously,” Invited Address, National Conference on Juries and the Death Penalty, Indiana Law School, Bloomington, February.

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1994

“Mitigation and the Social Genetics of Violence: Childhood Treatment and Adult Criminality,” Invited Address, Conference on the Capital Punishment, Santa Clara Law School, October, Santa Clara.

1992

“Social Science and the Death Penalty,” Chair and Discussant, American Psychological Association Annual Convention, San Francisco, CA, August.

1991

“Capital Jury Decisionmaking,” Invited panelist, American Psychological Association Annual Convention, Atlanta, GA, August.

1990

“Racial Discrimination in Death Penalty Cases,” Invited presentation, NAACP Legal Defense Fund Conference on Capital Litigation, August, Airlie, VA.

1989

“Psychology and Legal Change: The Impact of a Decade,” Invited Address to Division 41 (Psychology and Law), American Psychological Association Annual Convention, New Orleans, LA., August.
“Judicial Remedies to Pretrial Prejudice,” Law & Society Association Annual Meeting, Madison, WI, June.
“The Social Psychology of Police Interrogation Techniques” (with R. Liebowitz), Law & Society Association Annual Meeting, Madison, WI, June.

1987

“The Fourteenth Amendment and Symbolic Legality: Let Them Eat Due Process,” APA Annual Convention, New York, N.Y. August.
“The Nature and Function of Prison in the United States and Mexico: A Preliminary Comparison,” InterAmerican Congress of Psychology, Havana, Cuba, July.

1986

Chair, Division 41 Invited Address and “Commentary on the Execution Ritual,” APA Annual Convention, Washington, D.C., August.

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“Capital Punishment,” Invited Address, National Association of Criminal Defense Lawyers Annual Convention, Monterey, CA, August.

1985

“The Role of Law in Graduate Social Science Programs” and “Current Directions in Death Qualification Research,” American Society of Criminology, San Diego, CA, November.
“The State of the Prisons: What’s Happened to ‘Justice’ in the ‘70s and ‘80s?” Invited Address to Division 41 (Psychology and Law); APA Annual Convention, Los Angeles, CA, August.

1983

“The Role of Social Science in Death Penalty Litigation.” Invited Address in National College of Criminal Defense Death Penalty Conference, Indianapolis, IN, September.

1982

“Psychology in the Court: Social Science Data and Legal DecisionMaking.” Invited Plenary Address, International Conference on Psychology and Law, University College, Swansea, Wales, July.

1982

“Paradigms in Conflict: Contrasting Methods and Styles of Psychology and Law.” Invited Address, Social Science Research Council, Conference on Psychology and Law, Wolfson College, Oxford University, March.

1982

“Law and Psychology: Conflicts in Professional Roles.” Invited paper, Western Psychological Association Annual Meeting, April.

1980

“Using Psychology in Test Case Litigation,” panelist, American Psychological Association Annual Convention, Montreal, Canada, September.
“On the Selection of Capital Juries: The Biasing Effects of Death Qualification.” Paper presented at the Interdisciplinary Conference on Capital Punishment. Georgia State University, Atlanta, GA, April.
“Diminished Capacity and Imprisonment: The Legal and Psychological Issues,” Proceedings of the American Trial Lawyers Association, Mid-Winter Meeting, January.

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1975

“Social Change and the Ideology of Individualism in Psychology and Law.” Paper presented at the Western Psychological Association Annual Meeting, April.

SERVICE TO STAFF OR EDITORIAL BOARDS OF FOUNDATIONS, SCHOLARLY JOURNALS OR PRESSES

2016-present Editorial Consultant, Translational Issues in Psychological Science.

2015-present Editorial Consultant, Criminal Justice Review.

2014-present Editorial Board Member, Law and Social Inquiry.

2013-present Editorial Consultant, Criminal Justice and Behavior.

2012-present Editorial Consultant, Law and Society Review.

2011-present Editorial Consultant, Social Psychological and Personality Science.

2008-present Editorial Consultant, New England Journal of Medicine.

2007-present Editorial Board Member, Correctional Mental Health Reporter.

2007-present Editorial Consultant, Journal of Offender Rehabilitation.

2004-present Editorial Board Member, American Psychology and Law Society Book Series, Oxford University Press.

2000-2003 Reviewer, Society for the Study of Social Issues Grants-in-Aid Program.

2000-present Editorial Board Member, ASAP (on-line journal of the Society for the Study of Social Issues)

1997-present Editorial Board Member (until 2004), Consultant, Psychology, Public Policy, and Law

1991

Editorial Consultant, Brooks/Cole Publishing

1989

Editorial Consultant, Journal of Personality and Social Psychology

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1988-

Editorial Consultant, American Psychologist

1985

Editorial Consultant, American Bar Foundation Research Journal

1985-2006 Law and Human Behavior, Editorial Board Member

1985

Editorial Consultant, Columbia University Press

1985

Editorial Consultant, Law and Social Inquiry

1980-present Reviewer, National Science Foundation

1997

Reviewer, National Institutes of Mental Health

1980-present Editorial Consultant, Law and Society Review

1979-1985 Editorial Consultant, Law and Human Behavior

1997-present Editorial Consultant, Legal and Criminological Psychology

1993-present Psychology, Public Policy, and Law, Editorial Consultant

GOVERNMENTAL, LEGAL AND CRIMINAL JUSTICE CONSULTING
Training Consultant, Palo Alto Police Department, 1973-1974. Evaluation Consultant, San Mateo County Sheriff’s Department, 1974. Design and Training Consultant to Napa County Board of Supervisors, County
Sheriff’s Department (county jail), 1974. Training Consultation, California Department of Corrections, 1974. Consultant to California Legislature Select Committee in Criminal Justice, 1974,
1980-1981 (effects of prison conditions, evaluation of proposed prison legislation). Reviewer, National Science Foundation (Law and Social Science, Research Applied to National Needs Programs), 1978-present. Consultant, Santa Clara County Board of Supervisors, 1980 (effects of jail overcrowding, evaluation of county criminal justice policy).
36
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Consultant to Packard Foundation, 1981 (evaluation of inmate counseling and guard training programs at San Quentin and Soledad prisons).
Member, San Francisco Foundation Criminal Justice Task Force, 1980-1982 (corrections expert).
Consultant to NAACP Legal Defense Fund, 1982- present (expert witness, case evaluation, attorney training).
Faculty, National Judicial College, 1980-1983.
Consultant to Public Advocates, Inc., 1983-1986 (public interest litigation).
Consultant to California Child, Youth, Family Coalition, 1981-82 (evaluation of proposed juvenile justice legislation).
Consultant to California Senate Office of Research, 1982 (evaluation of causes and consequences of overcrowding in California Youth Authority facilities).
Consultant, New Mexico State Public Defender, 1980-1983 (investigation of causes of February, 1980 prison riot).
Consultant, California State Supreme Court, 1983 (evaluation of county jail conditions).
Member, California State Bar Committee on Standards in Prisons and Jails, 1983.
Consultant, California Legislature Joint Committee on Prison Construction and Operations, 1985.
Consultant, United States Bureau of Prisons and United States Department of the Interior (Prison History, Conditions of Confinement Exhibition, Alcatraz Island), 1989-1991.
Consultant to United States Department of Justice, 1980-1990 (evaluation of institutional conditions).
Consultant to California Judicial Council (judicial training programs), 2000.
Consultant to American Bar Association/American Association for Advancement of Science Task Force on Forensic Standards for Scientific Evidence, 2000.
Invited Participant, White House Forum on the Uses of Science and Technology to Improve Crime and Prison Policy, 2000.
37
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Member, Joint Legislative/California Department of Corrections Task Force on Violence, 2001.
Consultant, United States Department of Health & Human Services/Urban Institute, “Effects of Incarceration on Children, Families, and Low-Income Communities” Project, 2002.
Detention Consultant, United States Commission on International Religious Freedom (USCIRF). Evaluation of Immigration and Naturalization Service Detention Facilities, July, 2004-2005.
Consultant, International Committee of the Red Cross, Geneva, Switzerland, Consultant on international conditions of confinement.
Member, Institutional Research External Review Panel, California Department of Corrections, November, 2004-2008.
Consultant, United States Department of Health & Human Services on programs designed to enhance post-prison success and community reintegration, 2006.
Consultant/Witness, U.S. House of Representatives, Judiciary Committee, Evaluation of legislative and budgetary proposals concerning the detention of undocumented persons, February-March, 2005.
Invited Expert Witness to National Commission on Safety and Abuse in America’s Prisons (Nicholas Katzenbach, Chair); Newark, New Jersey, July 19-20, 2005.
Testimony to the United States Senate, Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights (Senators Brownback and Feingold, co-chairs), Hearing on “An Examination of the Death Penalty in the United States,” February 7, 2006.
National Council of Crime and Delinquency “Sentencing and Correctional Policy Task Force,” member providing written policy recommendations to the California legislature concerning overcrowding crisis in the California Department of Corrections and Rehabilitation.
Trainer/Instructor, Federal Bureau of Prisons and United States Department of Justice, “Correctional Excellence” Program, providing instruction concerning conditions of confinement and psychological stresses of living and working in correctional environments to mid-level management corrections professionals, May, 20042008.
Invited Expert Witness, California Commission on the Fair Administration of Justice, Public Hearing, Santa Clara University, March 28, 2008.
38
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Invited Participant, Department of Homeland Security, Mental Health Effects of Detention and Isolation, 2010.
Invited Witness, Before the California Assembly Committee on Public Safety, August 23, 2011.
Consultant, “Reforming the Criminal Justice System in the United States” Joint Working Group with Senator James Webb and Congressional Staffs, 2011 Developing National Criminal Justice Commission Legislation.
Invited Participant, United Nations, Forum with United Nations Special Rapporteur on Torture Concerning the Overuse of Solitary Confinement, New York, October, 2011.
Invited Witness, Before United States Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights Hearing on Solitary Confinement, June 19, 2012.
Member, National Academy of Sciences Committee to Study the Causes and Consequences of the High Rate of Incarceration in the United States, 2012-2014.
Member, National Academy of Sciences Briefing Group, briefed media and public officials at Pew Research Center, Congressional staff, and White House staff concerning policy implications of The Growth of Incarceration in the United States: Exploring the Causes and Consequences (2014), April 30-May 1.
Consultant to United States Department of Justice and White House Domestic Policy Council on formulation of federal policy concerning use of segregation confinement, 2015.
PRISON AND JAIL CONDITIONS EVALUATIONS AND LITIGATION
Hoptowit v. Ray [United States District Court, Eastern District of Washington, 1980; 682 F.2d 1237 (9th Cir. 1982)]. Evaluation of psychological effects of conditions of confinement at Washington State Penitentiary at Walla Walla for United States Department of Justice.
Wilson v. Brown (Marin Country Superior Court; September, 1982, Justice Burke). Evaluation of effects of overcrowding on San Quentin mainline inmates.
Thompson v. Enomoto (United States District Court, Northern District of California, Judge Stanley Weigel, 1982 and continuing). Evaluation of conditions of confinement on Condemned Row, San Quentin Prison.
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Toussaint v. McCarthy [United States District Court, Northern District of California, Judge Stanley Weigel, 553 F. Supp. 1365 (1983); 722 F. 2d 1490 (9th Cir. 1984) 711 F. Supp. 536 (1989)]. Evaluation of psychological effects of conditions of confinement in lockup units at DVI, Folsom, San Quentin, and Soledad.
In re Priest (Proceeding by special appointment of the California Supreme Court, Judge Spurgeon Avakian, 1983). Evaluation of conditions of confinement in Lake County Jail.
Ruiz v. Estelle [United States District Court, Southern District of Texas, Judge William Justice, 503 F. Supp. 1265 (1980)]. Evaluation of effects of overcrowding in the Texas prison system, 1983-1985.
In re Atascadero State Hospital (Civil Rights of Institutionalized Persons Act of 1980 action). Evaluation of conditions of confinement and nature of patient care at ASH for United States Department of Justice, 1983-1984.
In re Rock (Monterey County Superior Court 1984). Appointed to evaluate conditions of confinement in Soledad State Prison in Soledad, California.
In re Mackey (Sacramento County Superior Court, 1985). Appointed to evaluate conditions of confinement at Folsom State Prison mainline housing units.
Bruscino v. Carlson (United States District Court, Southern District of Illinois 1984 1985). Evaluation of conditions of confinement at the United States Penitentiary at Marion, Illinois [654 F. Supp. 609 (1987); 854 F.2d 162 (7th Cir. 1988)].
Dohner v. McCarthy [United States District Court, Central District of California, 1984-1985; 636 F. Supp. 408 (1985)]. Evaluation of conditions of confinement at California Men’s Colony, San Luis Obispo.
Invited Testimony before Joint Legislative Committee on Prison Construction and Operations hearings on the causes and consequences of violence at Folsom Prison, June, 1985.
Stewart v. Gates [United States District Court, 1987]. Evaluation of conditions of confinement in psychiatric and medical units in Orange County Main Jail, Santa Ana, California.
Duran v. Anaya (United States District Court, 1987-1988). Evaluation of conditions of confinement in the Penitentiary of New Mexico, Santa Fe, New Mexico [Duran v. Anaya, No. 77-721 (D. N.M. July 17, 1980); Duran v. King, No. 77-721 (D. N.M. March 15, 1984)].
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Gates v. Deukmejian (United States District Court, Eastern District of California, 1989). Evaluation of conditions of confinement at California Medical Facility, Vacaville, California.
Kozeak v. McCarthy (San Bernardino Superior Court, 1990). Evaluation of conditions of confinement at California Institution for Women, Frontera, California.
Coleman v. Gomez (United States District Court, Eastern District of California, 1992-3; Magistrate Moulds, Chief Judge Lawrence Karlton, 912 F. Supp. 1282 (1995). Evaluation of study of quality of mental health care in California prison system, special mental health needs at Pelican Bay State Prison.
Madrid v. Gomez (United States District Court, Northern District of California, 1993, District Judge Thelton Henderson, 889 F. Supp. 1146 (N.D. Cal. 1995). Evaluation of conditions of confinement and psychological consequences of isolation in Security Housing Unit at Pelican Bay State Prison, Crescent City, California.
Clark v. Wilson, (United States District Court, Northern District of California, 1998, District Judge Fern Smith, No. C-96-1486 FMS), evaluation of screening procedures to identify and treatment of developmentally disabled prisoners in California Department of Corrections.
Turay v. Seling [United States District Court, Western District of Washington (1998)]. Evaluation of Conditions of Confinement-Related Issues in Special Commitment Center at McNeil Island Correctional Center.
In re: The Commitment of Durden, Jackson, Leach, & Wilson. [Circuit Court, Palm Beach County, Florida (1999).] Evaluation of Conditions of Confinement in Martin Treatment Facility.
Ruiz v. Johnson [United States District Court, Southern District of Texas, District Judge William Wayne Justice, 37 F. Supp. 2d 855 (SD Texas 1999)]. Evaluation of current conditions of confinement, especially in security housing or “high security” units.
Osterback v. Moore (United States District Court, Southern District of Florida (97-2806-CIV-MORENO) (2001) [see, Osterback v. Moore, 531 U.S. 1172 (2001)]. Evaluation of Close Management Units and Conditions in the Florida Department of Corrections.
Valdivia v. Davis (United States District Court, Eastern District of California, 2002). Evaluation of due process protections afforded mentally ill and developmentally disabled parolees in parole revocation process.
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Ayers v. Perry (United States District Court, New Mexico, 2003). Evaluation of conditions of confinement and mental health services in New Mexico Department of Corrections “special controls facilities.” Disability Law Center v. Massachusetts Department of Corrections (Federal District Court, Massachusetts, 2007). Evaluation of conditions of confinement and treatment of mentally ill prisoners in disciplinary lockup and segregation units. Plata/Coleman v. Schwarzenegger (Ninth Circuit Court of Appeals, Three-Judge Panel, 2008). Evaluation of conditions of confinement, effects of overcrowding on provision of medical and mental health care in California Department of Corrections and Rehabilitation. [See Brown v. Plata, 563 U.S. 493 (2011).] Ashker v. Brown (United States District Court, Northern District of California, 2013-2015). Evaluation of the effect of long-term isolated confinement in Pelican Bay State Prison Security Housing Unit. Parsons v. Ryan (United States District Court, District of Arizona, 2012-14). Evaluation of conditions of segregated confinement for mentally ill and nonmentally ill prisoners in statewide correctional facilities. [See Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014)]. Braggs v. Dunn (United States District Court, Middle District of Alabama, 20152017). Evaluation of mental health care delivery system, overcrowded conditions of confinement, and use of segregation in statewide prison system. [See Braggs v. Dunn, 257 F. Supp. 3d 1171 (M.D. Ala. 2017).]
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EXHIBIT K
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COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS UPDATED MARCH 13, 2020
Dear Colleagues –
We are providing interim preparedness and response guidance regarding coronavirus disease 2019 (COVID-19). This guidance is based on the Centers for Disease Control and Prevention (CDC) recommendations and is adapted for the UAC Program. The pandemic is a rapidly evolving situation, and updated guidance may be released in the future, as necessary.
Guidance on COVID-19 documentation in the UAC Portal was sent to ORR care providers via a DHUC Dispatch on March 13th, 2020.
Please carefully review the information below, and email DCSMedical@acf.hhs.gov with any questions.
COVID-19 BACKGROUND
CDC Situation Summary See: https://www.cdc.gov/coronavirus/2019-ncov/summary.html
An outbreak of respiratory illness caused by a novel (new) coronavirus was first detected in Wuhan City, Hubei Province, China and has now been detected in more than 100 locations internationally, including the United States. On January 30, 2020, the World Health Organization declared the outbreak a public health emergency of international concern, and on March 11, 2020, characterized COVID-19 as a pandemic.
Transmission of COVID-19  Much is unknown about how the new coronavirus that causes COVID-19 spreads. Current knowledge is largely based on what is known about similar coronaviruses.  Most often, person-to-person spread is thought to happen among people in close contact (about 6 feet) with each other and mainly through respiratory droplets produced when an infected person coughs or sneezes, similar to how influenza and other respiratory pathogens spread. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.  It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not believed to be the main way the virus spreads.  Typically, with most respiratory viruses, people are considered most contagious when they are most symptomatic (sickest).
Symptoms of COVID-19 Reported illnesses have ranged from mild symptoms to severe illness. Symptoms may appear 2–14 days after exposure and can include:
 Fever  Cough  Shortness of breath
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COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS UPDATED MARCH 13, 2020
Diagnosis and treatment  There is currently no specific antiviral treatment for COVID-19. People with COVID-19 should receive supportive care to help relieve symptoms.  Testing is with a real time Reverse Transcription-Polymerase Chain Reaction (rRT-PCR) test to detect SARS-CoV-2 (the virus that causes COVID-19) in respiratory samples.  Currently, testing is being rolled out to public health and clinical laboratories throughout the United States.
Prevention  There is currently no vaccine to prevent COVID-19. The best way to prevent infection is to avoid being exposed to the virus.  Everyday actions can help prevent the spread of respiratory viruses, including: o Avoid touching your eyes, nose, and mouth with unwashed hands. o Avoid close contact with people who are sick. o Stay home when you are sick. o Cover your cough or sneeze with a tissue, then throw the tissue in the trash. o Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe. o Wash your hands often with soap and water for at least 20 seconds, especially after blowing your nose, coughing or sneezing; going to the bathroom; and before eating or preparing food. o If soap and water are not readily available, use an alcohol-based hand sanitizer with at least 60% alcohol. Always wash hands with soap and water if hands are visibly dirty.
Please refer to the CDC website for up-to-date information on COVID-19, including what is currently known about transmission, symptoms, and prevention efforts. https://www.cdc.gov/coronavirus/2019-ncov/about/index.html
ORR GUIDANCE AND RESPONSE
ORR’s Division of Health for Unaccompanied Children (DHUC) Response  DHUC is closely monitoring COVID-19 information and CDC-issued guidance.  DHUC is providing guidance to ORR care providers when staff or children might have been exposed to COVID-19 in their community or during travel.  DHUC, in collaboration with the Department of Homeland Security/Customs and Border Protection (DHS/CBP) and the ORR Intakes Team, are monitoring when an unaccompanied alien child is initially referred to ORR care who is reported to be potentially exposed to COVID-19 either through travel from/through an area with widespread or ongoing community spread within the past 14 days or contact with a confirmed COVID-19 patient. Subsequently, DHUC will notify and provide guidance to ORR care providers of those children referred for care and custody.  Care providers have been directed to notify state and local health departments when a UAC has been identified as potentially exposed to COVID-19 either through travel from/through an area with widespread or ongoing community spread within the past 14 days or through contact with a confirmed COVID-19 patient.
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COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS UPDATED MARCH 13, 2020
General communicable disease prevention and control measures already in place across ORR care provider programs that will aid in COVID-19 response
 All ORR care providers document a child’s travel history in the Initial Intakes Assessment and the UAC Assessment sections of the UAC Portal.
 The health of all UAC in care is routinely assessed by a licensed medical provider during the Initial Medical Exam (IME).
 All ORR care providers must have the ability to medically isolate or quarantine a child in a room to prevent contact with other children. Ideally, this room is linked to a private bathroom.
 All ORR care providers must educate staff and children on hand-hygiene, respiratory etiquette, and steps to prevent illness.
 All ORR care providers must routinely have children with respiratory disease (e.g., influenza) wear a plain paper surgical mask when not in an isolation room, such as when visiting a healthcare facility.
 All ORR care providers must clean and disinfect frequently touched surfaces.  All ORR care providers have a designated way to report potentially reportable diseases to their
state or local health department. This same reporting structure is used for COVID-19.
COVID-19 Specific Guidance to ORR Care Providers 1. Planning and coordination
 Contact your local clinic/hospital to confirm the procedure for evaluation and treatment of children with symptoms of acute respiratory illness.
 Contact your state or local health department to confirm procedures for reporting and managing children with suspected COVID-19.
2. Enhanced staff and visitor screening  Ensure sick employees with symptoms of an acute respiratory illness (fever, cough, shortness of breath) stay home and consult with their primary care provider and state or local health department about further evaluation and testing.  Screen all staff and visitors of the care provider (including stakeholders) for COVID-19 risk factors prior to ORR program entry, using the “ORR COVID-19 Risk Questionnaire for Staff and Visitors” tool available on the UAC Portal home page under the “COVID-19 Guidance and Materials” folder in the “Documents to Download” section.
3. Identification of risk among children in ORR care  Review jurisdiction-specific COVID-19 guidance from your state or local health department.  Determine the risk of COVID-19 for each child by identifying if s/he may have been exposed through 1) an ORR care provider staff member, 2) a person in the community, or 3) travel from/through an area with widespread or ongoing community spread within the past 14 days, as noted below:  China  Iran  South Korea  Most of Europe  A current list can be found at this link: https://www.cdc.gov/coronavirus/2019ncov/travelers/index.html
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COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS UPDATED MARCH 13, 2020
 Document the child’s location of origin and travel history in the UAC Portal: o Initial Intakes Assessment: 1) Date of departure from home country; 2) Date of arrival in the U.S. o UAC Assessment: 1) Additional UAC Info Tab - City of Origin, Neighborhood of Origin (be as specific as the child can provide); 2) Journey and Apprehension Tab- When did you leave your home country (month, day, year)? How long did the trip take? How did you get to the U.S.? Who did you travel with?
4. Responding to children with a risk for COVID-19 exposure or symptomatic disease  If a child is found to be at risk for COVID-19 exposure and does NOT have symptoms of acute respiratory illness (e.g., fever, cough, shortness of breath): o Place the child in a private room with a closed door and access to a bathroom (preferably a private bathroom not used by other staff or children). o Immediately notify the state or local health department and DHUC at DCSMedical@acf.hhs.gov for additional guidance on risk assessment, symptom monitoring, and quarantine. o Maintain quarantine until the child is cleared by the health department and DHUC. o Do NOT transfer or discharge the child until cleared by the health department and DHUC. o Provide the child notice of the quarantine requirement and address questions or concerns the child may have about medical quarantine, as well as potential delays to anticipated transfers or discharge plans. o Ensure services (e.g., legal, educational) are provided to the child.
 If a child is found to be at risk for COVID-19 and HAS symptoms of acute respiratory illness (e.g., fever, cough, shortness of breath): o Isolate the child in a negative pressure isolation room. If a negative pressure room is not available, place the child in a private room with a closed door and access to a bathroom (preferably a private bathroom not used by other staff or children). o Immediately notify the state or local health department and DHUC at DCSMedical@acf.hhs.gov for additional guidance on risk assessment, symptom monitoring, and quarantine. o Ensure personnel entering the room use standard precautions, contact precautions, airborne precautions (e.g., N95 respirator), and eye protection (e.g., goggles or a face shield). o Provide a plain paper surgical mask to the child for use when s/he leaves the isolation room (e.g., to go to the bathroom or a medical appointment). o If the child must be transported to a health clinic or facility, notify the local health department for guidance. Additionally, call ahead to notify the medical facility so they can be ready with the necessary infection control measures. o Seek immediate medical attention if a child has severe or worsening symptoms. o Maintain isolation until cleared by the health department and DHUC. o DO NOT transfer or discharge the child until cleared by the health department and DHUC. o Provide the child with notice of the isolation requirement and address questions or concerns the child may have about medical isolation, as well as potential delays to anticipated transfers or discharge plans. o Ensure services (e.g., legal, educational) are provided to the child, if possible.
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COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS UPDATED MARCH 13, 2020
5. Discharge  Per ORR Policy Guide Section 3.4.8 Medical Clearance Prior to Release or Transfer, children who have had exposure to a communicable disease must not be transferred or moved until they have been medically cleared by a physician or ORR has been consulted. Children who are potentially infectious with communicable diseases of public health concern, which may cause outbreaks, are not be released from ORR care until they are non-infectious.  As an enhanced precaution, screen all children for symptoms of acute respiratory illness (fever, cough, shortness of breath) at the time of physical transfer or discharge. Children with symptoms of acute respiratory illness may not be transferred or discharged until they have been medically cleared. Follow the instructions provided in the “COVID-19 AND OTHER RESPIRATORY DISEASE CHECK” tool available on the UAC Portal home page under the “COVID-19 Guidance and Materials” folder in the “Documents to Download” section.  Include the below CDC COVID-19 educational materials in the discharge packet for children and sponsors. English and Spanish versions are available on the CDC website and on the UAC Portal home page under the “COVID-19 Guidance and Materials” folder in the “Documents to Download” section. o “What you need to know about coronavirus disease 2019 (COVID-19)” o “Symptoms of coronavirus disease 2019”
All CDC guidance can be found at: https://www.cdc.gov/coronavirus/2019-ncov/index.html
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ORR COVID-19 RISK QUESTIONNAIRE FOR STAFF AND VISITORS 13 March 2020
Until further notice staff and visitors must be screened for COVID-19 risk factors prior to entering any ORR care provider facility. If an individual selects ‘Yes’ for one or more of the questions below, please restrict access to the facility; refer to the “Actions” section for further guidance. Refer to the COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS for prevention measures while administering this screening.
Questions:
1. Are you currently experiencing any signs and symptoms of an acute respiratory illness (fever, cough, or shortness of breath)?
Yes □ No □
2. Have you had contact with someone known to have COVID-19 or who is under investigation for COVID-19?
Yes □ No □
3. Within the last 14 days, have you traveled to an international area with sustained transmission (China, Iran, South Korea, most of Europe)?
Yes □ No □
*A current list of international areas with sustained transmission can be found at: https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html
Actions:
Staff  If the response to Question 1 is ‘Yes’, access to the facility must be restricted. The staff member must be medically evaluated and cleared by their healthcare provider prior to returning.  If the response to Question 2 or 3 is ‘Yes’, access to the facility must be restricted. The staff member must contact the local public health department for further guidance prior to returning.
Visitor  If the response to Question 1 is ‘Yes’, access to the facility must be restricted. Facility staff should recommend that the visitor contact their healthcare provider.  If the response to Question 2 or 3 is ‘Yes’, access to the facility must be restricted. Facility staff should recommend that the visitor contact the local public health authority. If the visitor returns within 14 days, care provider staff must contact the local public health authority to seek additional guidance.
https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/guidance-hcf.html https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and/qso-20-14-nh.pdf
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INTERIM COVID-10 Acute Respiratory Disease Transfer and Discharge Tracker for all ORR Care Providers This check can be performed by program staff. Refer to the COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS for prevention measures while administering this screening. v.20200313

A NUMBER

UAC’S NAME

XXX-XXX-XXX

Sample Entry

CLEAR OF FEVER < 100ºF
(Y/N)
Perform check at time of discharge

CLEAR OF COUGH (Y/N)
Perform check at time of discharge

CLEAR OF SHORTNESS OF
BREATH (Y/N)
Perform check at time of discharge

N

N

N

CLEARED FOR TRANSFER OR DISCHARGE
Check if UC is clear of fever,
cough, and shortness of
breath

XXX-XXX-XXX

Sample Entry

Y

Y

Y



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INTERIM COVID‐19 AND OTHER RESPIRATORY DISEASE CHECK – PERFORM AT THE TIME OF PHYSICAL TRANSFER OR DISCHARGE This check can be performed by program staff. 1. FEVER CHECK Steps:
 Use a thermometer.  Write “N” in the CLEAR OF FEVER column if the child has a temperature above 100ºF (37.8ºC). Do not
transport until child has been cleared by local medical personnel.  Write “Y” in the CLEAR OF FEVER column if the child does not have a fever. Remember!  Do not measure the temperature in a child's mouth if he or she has consumed a hot or cold food or
drink in the last 30 minutes.
2. COUGH CHECK Steps:
 Ask each child if s/he has a cough that is new and not normal for them.  Write “N” in the CLEAR OF COUGH column if the child reports cough. Do not transport until child has
been cleared by local medical personnel.  Write “Y” in the CLEAR OF COUGH column if the child does not report cough, and no cough is observed
during the check. 3. SHORTNESS OF BREATH CHECK Steps:
 Ask each child if s/he is having a hard time catching his or her breath when resting (and that it is not related to a known chronic medical problem, like asthma).
 Write “N” in the CLEAR OF SHORTNESS OF BREATH column if the child reports trouble catching his or her breath. Do not transport until child has been cleared by local medical personnel.
 Write “Y” in the CLEAR OF SHORTNESS OF BREATH column if the child does not report trouble catching his or her breath.
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C VID What you need to know about

19 CORONAVIRUS
DISEASE

coronavirus disease 2019 (COVID-19)

What is coronavirus disease 2019 (COVID-19)?
Coronavirus disease 2019 (COVID-19) is a respiratory illness that can spread from person to person. The virus that causes COVID-19 is a novel coronavirus that was first identified during an investigation into an outbreak in Wuhan, China.
Can people in the U.S. get COVID-19?
Yes. COVID-19 is spreading from person to person in parts of the United States. Risk of infection with COVID-19 is higher for people who are close contacts of someone known to have COVID-19, for example healthcare workers, or household members. Other people at higher risk for infection are those who live in or have recently been in an area with ongoing spread of COVID-19. Learn more about places with ongoing spread at https://www.cdc.gov/coronavirus/2019-ncov/about/ transmission.html#geographic.
Have there been cases of COVID-19 in the U.S.?
Yes. The first case of COVID-19 in the United States was reported on January 21, 2020. The current count of cases of COVID-19 in the United States is available on CDC’s webpage at https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html.
How does COVID-19 spread?
The virus that causes COVID-19 probably emerged from an animal source, but is now spreading from person to person. The virus is thought to spread mainly between people who are in close contact with one another (within about 6 feet) through respiratory droplets produced when an infected person coughs or sneezes. It also may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads. Learn what is known about the spread of newly emerged coronaviruses at https://www.cdc.gov/ coronavirus/2019-ncov/about/transmission.html.
What are the symptoms of COVID-19?
Patients with COVID-19 have had mild to severe respiratory illness with symptoms of • fever • cough • shortness of breath

What are severe complications from this virus?
Some patients have pneumonia in both lungs, multi-organ failure and in some cases death.
How can I help protect myself?
People can help protect themselves from respiratory illness with everyday preventive actions. ​ • Avoid close contact with people who are sick. • Avoid touching your eyes, nose, and mouth with
unwashed hands. • Wash your hands often with soap and water for at least 20
seconds. Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not available.
If you are sick, to keep from spreading respiratory illness to others, you should
• Stay home when you are sick. • Cover your cough or sneeze with a tissue, then throw the
tissue in the trash. • Clean and disinfect frequently touched objects
and surfaces.
What should I do if I recently traveled from an area with ongoing spread of COVID-19?
If you have traveled from an affected area, there may be restrictions on your movements for up to 2 weeks. If you develop symptoms during that period (fever, cough, trouble breathing), seek medical advice. Call the office of your health care provider before you go, and tell them about your travel and your symptoms. They will give you instructions on how to get care without exposing other people to your illness. While sick, avoid contact with people, don’t go out and delay any travel to reduce the possibility of spreading illness to others.
Is there a vaccine?
There is currently no vaccine to protect against COVID-19. The best way to prevent infection is to take everyday preventive actions, like avoiding close contact with people who are sick and washing your hands often.
Is there a treatment?
There is no specific antiviral treatment for COVID-19. People with COVID-19 can seek medical care to help relieve symptoms.

CS 314937-A 03/03/2020

For more information: www.cdc.gov/COVID19
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C VID Lo que necesita saber sobre la enfermedad
19 del coronavirus 2019(COVID-19)

¿Qué es la enfermedad del coronavirus 2019 (COVID-19)?
La enfermedad del coronavirus 2019 (COVID-19) es una afección respiratoria que se puede propagar de persona a persona. El virus que causa el COVID-19 es un nuevo coronavirus que se identificó por primera vez durante la investigación de un brote en Wuhan, China.
¿Pueden las personas en los EE. UU. contraer el COVID-19?
El COVID-19 se está propagando de persona a persona en China y se ha detectado propagación limitada entre contactos cercanos en algunos países fuera de China, incluso en los Estados Unidos. En la actualidad, sin embargo, este virus NO se está propagando en comunidades en los Estados Unidos. En estos momentos, el mayor riesgo de infección es para las personas en China o las personas que han viajado a China. El riesgo de infección depende de la exposición. Los contactos cercanos de las personas infectadas tienen un riesgo mayor de exposición, por ejemplo, los trabajadores del sector de la salud y los contactos cercanos de las personas infectadas por el virus que causa el COVID-19. Los CDC continúan vigilando de cerca la situación.
¿Ha habido casos de COVID-19 en los EE. UU.?
Sí. El primer caso de COVID-19 en los Estados Unidos se notificó el 21 de enero del 2020. La cantidad actual de casos de COVID-19 en los Estados Unidos está disponible en la página web de los CDC en https://www.cdc.gov/coronavirus/2019ncov/ cases-in-us.html.
¿Cómo se propaga el COVID- 19?
Es probable que el virus que causa el COVID-19 haya surgido de una fuente animal, pero parece que ahora se está propagando de persona a persona. Es importante notar que la propagación de persona a persona puede darse en un proceso continuo. Algunas enfermedades son altamente contagiosas (como el sarampión), mientras que otras enfermedades no lo son tanto. En estos momentos, no está claro qué tan fácil o con qué continuidad el virus que causa el COVID-19 se esté propagando entre las personas. Infórmese sobre lo que se sabe acerca de la propagación del coronavirus de reciente aparición en https://www.cdc.gov/coronavirus/2019-ncov/about/ transmission-sp.html.
¿Cuáles son los síntomas del COVID-19?
Los pacientes con COVID-19 han tenido enfermedad respiratoria de leve a grave con los siguientes síntomas: • fiebre • tos • dificultad para respirar

¿Cuáles son las complicaciones graves provocadas por este virus?
Muchos pacientes tienen neumonía en ambos pulmones.
¿Qué puedo hacer para ayudar a protegerme?
La mejor manera de prevenir la infección es evitar la exposición al virus que causa el COVID-19. Hay medidas simples preventivas y cotidianas para ayudar a prevenir la propagación de virus respiratorios. Estas incluyen las siguientes: • Evitar el contacto cercano con personas enfermas. • Evitar tocarse los ojos, la nariz y la boca con las manos
sin lavar. • Lavarse frecuentemente las manos con agua y jabón por al
menos 20 segundos. Usar un desinfectante de manos que contenga al menos un 60 % de alcohol si no hay agua y jabón disponibles. • Si está enfermo, para prevenir la propagación de la enfermedad respiratoria a los demás, debería hacer lo siguiente: • Quedarse en casa si está enfermo. • Cubrirse la nariz y la boca con un pañuelo desechable al toser o estornudar y luego botarlo a la basura. • Limpiar y desinfectar los objetos y las superficies que se tocan frecuentemente.
¿Qué debo hacer si recientemente viajé a China y me enfermé?
Si estuvo en China en los últimos 14 días, se siente enfermo y tiene fiebre, tos o dificultad para respirar, debería buscar atención médica. Llame al consultorio de su proveedor de atención médica antes de ir y dígales sobre su viaje y sus síntomas. Ellos le darán instrucciones sobre cómo conseguir atención médica sin exponer a los demás a su enfermedad. Mientras esté enfermo, evite el contacto con otras personas, no salga y postergue cualquier viaje para reducir la posibilidad de propagar la enfermedad a los demás.
¿Hay alguna vacuna?
En la actualidad no existe una vacuna que proteja contra el COVID-19. La mejor manera de prevenir la infección es evitar la exposición al virus que causa el COVID-19.
¿Existe un tratamiento?
No hay un tratamiento antiviral específico para el COVID-19. Las personas con el COVID-19 pueden buscar atención médica para ayudar a aliviar los síntomas.

CS 314937-I 02/24/2020

Para obtener más información: www.cdc.gov/COVID19-es
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C VID CORONAVIRUS
19 DISEASE

SYMPTOMS OF CORONAVIRUS DISEASE 2019

Patients with COVID-19 have experienced mild to severe respiratory illness.

Symptoms* can include FEVER

COUGH

*Symptoms may appear 2-14 days after exposure.

Seek medical advice if you develop symptoms, and have been in close contact with a person known to have COVID-19 or if you live in or have recently been in an area with
ongoing spread of COVID-19.

SHORTNESS OF BREATH

CS 315252-A 03/03/2020

For more information: www.cdc.gov/COVID19-symptoms
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SÍNTOMAS DE LA ENFERMEDAD DEL CORONAVIRUS 2019
Los pacientes con COVID-19 han presentado enfermedad respiratoria de leve a grave.
Los síntomas* pueden incluir FIEBRE

*Los síntomas pueden aparecer de 2

TOS

a 14 días después de la exposición.

Consulte a un médico si presenta síntomas y ha estado en contacto cercano con una persona que se sepa que tiene el COVID-19, o si usted vive o ha estado recientemente en un área en la que haya propagación en
curso del COVID-19.

DIFICULTAD PARA RESPIRAR

*Symptoms may appear 2-14 days

after exposure.

CS 315252-B 03/04/2020

Para obtener más información: www.cdc.gov/COVID19-es
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EXHIBIT L
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Case 2:18-cv-05741-DMG-PLA Document 227-14 Filed 03/25/20 Page 2 of 25 Page ID Guidance on Management of Coronavirus Disease 20#1:592(C1O9VID-19) in Correctional and Detenti... Page 1 of 24
Coronavirus Disease 2019 (COVID-19)
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities
This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of the date of posting, March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the CDC website periodically for updated interim guidance.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.
Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.
Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correction... 3/24/2020
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• In most cases, incarcerated/detained persons are not permitted to leave the facility. • There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily
staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions. • Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas. • Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions. • Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles. • Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures. • Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19. • Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges. • The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants. • Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
• Operational and communications preparations for COVID-19 • Enhanced cleaning/disinfecting and hygiene practices • Social distancing strategies to increase space between individuals in the facility • How to limit transmission from visitors • Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE
shortages
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• Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors • Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for
cohorting when individual spaces are limited • Healthcare evaluation for suspected cases, including testing for COVID-19 • Clinical care for confirmed and suspected cases • Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case – In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting – Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19 – Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
Confirmed vs. Suspected COVID-19 case – A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons – For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation – Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
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Quarantine – Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing – Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication ð .
Staff – In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms – Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
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Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
• Develop information-sharing systems with partners. ◦ Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility. ◦ Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses. ◦ Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff. ◦ Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ◦ Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
• Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ◦ Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting.
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◦ Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care.
◦ Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity.
◦ Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
• Coordinate with local law enforcement and court officials. ◦ Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ◦ Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
• Post signage throughout the facility communicating the following: ◦ For all: symptoms of COVID-19 and hand hygiene instructions ◦ For incarcerated/detained persons: report symptoms to staff ◦ For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ◦ Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
• Review the sick leave policies of each employer that operates in the facility. ◦ Review policies to ensure that they actively encourage staff to stay home when sick. ◦ If these policies do not encourage staff to stay home when sick, discuss with the contract company. ◦ Determine which officials will have the authority to send symptomatic staff home.
• Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ◦ Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ◦ Put systems in place to implement work from home programs (e.g., time tracking, etc.).
• Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ◦ Allow staff to work from home when possible, within the scope of their duties. ◦ Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ◦ Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ◦ Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
• Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung
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disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
◦ Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
• Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
• Reference the Occupational Safety and Health Administration website  for recommendations regarding worker health.
• Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
• Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ◦ Standard medical supplies for daily clinic needs ◦ Tissues ◦ Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ◦ Hand drying supplies ◦ Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ◦ Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19  ◦ Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s. Visit CDC’s website for a calculator to help determine rate of PPE usage. ◦ Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
• Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ◦ See CDC guidance optimizing PPE supplies.
• Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
• Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ◦ Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
• If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
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• Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
• Stay in communication with partners about your facility’s current situation. ◦ State, local, territorial, and/or tribal health departments ◦ Other correctional facilities
• Communicate with the public about any changes to facility operations, including visitation programs. • Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary
for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
◦ Strongly consider postponing non-urgent outside medical visits. ◦ If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the
Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
• Implement lawful alternatives to in-person court appearances where permissible. • Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for
respiratory symptoms. • Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
• Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
• Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ◦ Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ◦ Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).
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◦ Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19  as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants.
◦ Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
• Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
• Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
Hygiene
• Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
• Encourage all persons in the facility to take the following actions to protect themselves and others from COVID19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision. ◦ Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use. ◦ Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage. ◦ Avoid touching your eyes, nose, or mouth without cleaning your hands first. ◦ Avoid sharing eating utensils, dishes, and cups. ◦ Avoid non-essential physical contact.
• Provide incarcerated/detained persons and staff no-cost access to: ◦ Soap – Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ◦ Running water, and hand drying machines or disposable paper towels for hand washing ◦ Tissues and no-touch trash receptacles for disposal
• Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
• Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
• Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below). ◦ If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):
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◾ Require the individual to wear a face mask. ◾ Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE. ◾ Place the individual under medical isolation (ideally in a room near the screening location, rather than
transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.) ◾ Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care. ◦ If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms): ◾ Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.) ◾ Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care. • Implement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ◦ Common areas: ◾ Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ◦ Recreation: ◾ Choose recreation spaces where individuals can spread out ◾ Stagger time in recreation spaces ◾ Restrict recreation space usage to a single housing unit per space (where feasible) ◦ Meals: ◾ Stagger meals ◾ Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table) ◾ Provide meals inside housing units or cells ◦ Group activities: ◾ Limit the size of group activities ◾ Increase space between individuals during group activities ◾ Suspend group programs where participants are likely to be in closer contact than they are in their housing environment ◾ Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ◦ Housing: ◾ If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.) ◾ Arrange bunks so that individuals sleep head to foot to increase the distance between them ◾ Rearrange scheduled movements to minimize mixing of individuals from different housing areas ◦ Medical: ◾ If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.
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◾ Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
• Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
• Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
• Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
• Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ◦ Symptoms of COVID-19 and its health risks ◦ Reminders to report COVID-19 symptoms to staff at the first sign of illness
• Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
• Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
• Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ◦ In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ◦ Send staff home who do not clear the screening process, and advise them to follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
• Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ◦ Symptoms of COVID-19 and its health risks ◦ Employers’ sick leave policy ◦ If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ◦ If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ◦ If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
• If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ◦ Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
• When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
• Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
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Prevention Practices for Visitors
• If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
• Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ◦ Staff performing temperature checks should wear recommended PPE. ◦ Exclude visitors and volunteers who do not clear the screening process or who decline screening.
• Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas. • Provide visitors and volunteers with information to prepare them for screening.
◦ Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ◦ If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be
screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ◦ Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy. • Promote non-contact visits: ◦ Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ◦ Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ◦ Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors. • Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ◦ If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ◦ Inform potential visitors of changes to, or suspension of, visitation programs. ◦ Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ◦ If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health. If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
• Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
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Operations
• Implement alternate work arrangements deemed feasible in the Operational Preparedness • Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including
work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding.
◦ If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
• If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
• When possible, arrange lawful alternatives to in-person court appearances. • Incorporate screening for COVID-19 symptoms and a temperature check into release planning.
◦ Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.) ◾ If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case – including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. ◾ If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care. ◾ Before releasing an incarcerated/detained individual with COVID-19 symptoms to a community-based facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
• Coordinate with state, local, tribal, and/or territorial health departments. ◦ When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ◦ When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ◦ Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
• Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.) • Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
• Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
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• Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
• As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
• Keep the individual’s movement outside the medical isolation space to an absolute minimum. ◦ Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ◦ Serve meals to cases inside the medical isolation space. ◦ Exclude the individual from all group activities. ◦ Assign the isolated individual a dedicated bathroom when possible.
• Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
• Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options. ◦ If cohorting is necessary: ◾ Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts. ◾ Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection. ◾ Ensure that cohorted cases wear face masks at all times. ◦ In order of preference, individuals under medical isolation should be housed: ◾ Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ◾ Separately, in single cells with solid walls but without solid doors ◾ As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ◾ As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ◾ As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ◾ As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ◾ Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE – Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
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If the ideal choice does not exist in a facility, use the next best alternative.
• If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ◦ Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ◦ Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
• Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
• Minimize transfer of COVID-19 cases between spaces within the healthcare unit. • Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle.
Instruct them to: ◦ Cover their mouth and nose with a tissue when they cough or sneeze ◦ Dispose of used tissues immediately in the lined trash receptacle ◦ Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
• Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria. ◦ For individuals who will be tested to determine if they are still contagious: ◾ The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND ◾ The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND ◾ The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart ◦ For individuals who will NOT be tested to determine if they are still contagious: ◾ The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND ◾ The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND ◾ At least 7 days have passed since the first symptoms appeared ◦ For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ◾ At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ◾ The individual has had no subsequent illness
• Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ◦ If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
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Cleaning Spaces where COVID-19 Cases Spent Time
• Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note – these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases. ◦ Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets. ◦ Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
• Hard (non-porous) surface cleaning and disinfection ◦ If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ◦ For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility. ◾ Consult a list of products that are EPA-approved for use against the virus that causes COVID-19  . Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.). ◾ Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing: ◾ 5 tablespoons (1/3rd cup) bleach per gallon of water or ◾ 4 teaspoons bleach per quart of water
• Soft (porous) surface cleaning and disinfection ◦ For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning: ◾ If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely. ◾ Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19  and are suitable for porous surfaces.
• Electronics cleaning and disinfection ◦ For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present. ◾ Follow the manufacturer’s instructions for all cleaning and disinfection products. ◾ Consider use of wipeable covers for electronics. ◾ If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
• Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
• Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
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• Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ◦ Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ◦ Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ◦ Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ◦ Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
• Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
• Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ◦ If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
• In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ◦ Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ◦ Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
• Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ◦ Provide medical evaluation and care inside or near the quarantine space when possible. ◦ Serve meals inside the quarantine space. ◦ Exclude the quarantined individual from all group activities. ◦ Assign the quarantined individual a dedicated bathroom when possible.
• Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ◦ If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation ◦ If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ◦ Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid
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mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine. ◦ If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started. • If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higherrisk individuals.) • In order of preference, multiple quarantined individuals should be housed: ◦ Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ◦ Separately, in single cells with solid walls but without solid doors ◦ As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ◦ As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ◦ As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ◦ As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ◦ As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ◦ Safely transfer to another facility with capacity to quarantine in one of the above arrangements (NOTE – Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.) • Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ◦ If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ◦ If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ◦ All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ◦ Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks. • Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ◦ Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE. • Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ◦ If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.)
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◦ See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
• If an individual who is part of a quarantined cohort becomes symptomatic: ◦ If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ◦ If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ◦ If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
• Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
• Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
• Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
• Laundry from quarantined individuals can be washed with other individuals’ laundry. ◦ Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ◦ Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ◦ Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ◦ Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
• If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
• Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
• Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
• If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ◦ If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.)
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◦ If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
• Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ◦ Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ◦ Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
• Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms.See Screening section for a procedure to safely perform a temperature check.
• Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
• Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ◦ Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
• Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ◦ See above for definition of a close contact. ◦ Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/detained persons may have with confirmed or suspected COVID-19 cases.
• All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates. ◦ Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs. ◦ Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
• Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
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• Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
• Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ◦ If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ◦ The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
• Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
• Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ◦ If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
• Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza). • The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local
hospital if they require care beyond what the facility is able to provide. • When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language
line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases. ◦ Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program. ◦ For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
• Ensure that all staff are trained to perform hand hygiene after removing PPE. • If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing
training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE. • Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency. • Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is
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defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response.
◦ N95 respirator See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case.
◦ Face mask
◦ Eye protection – goggles or disposable face shield that fully covers the front and sides of the face
◦ A single pair of disposable patient examination gloves Gloves should be changed if they become torn or heavily contaminated.
◦ Disposable medical isolation gown or single-use/disposable coveralls, when feasible ◾ If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
◾ If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
• Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for nonhealthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ◦ Guidance in the event of a shortage of N95 respirators ◾ Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk.
◦ Guidance in the event of a shortage of face masks
◦ Guidance in the event of a shortage of eye protection
◦ Guidance in the event of a shortage of gowns/coveralls

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gown/ Gloves Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under quarantine as close contacts of a COVID-19 case*)

Apply face masks for source control as feasible based on local supply, especially if housed as a cohort

Incarcerated/detained persons who are

X

confirmed or suspected COVID-19 cases, or

showing symptoms of COVID-19

Incarcerated/detained persons in a work placement handling laundry or used food service items from a COVID-19 case or case contact

X

X

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Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gown/ Gloves Coveralls

Incarcerated/detained persons in a work

Additional PPE may be needed based on X

X

placement cleaning areas where a COVID-19 the product label. See CDC guidelines for

case has spent time

more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

Face mask, eye protection, and gloves as local supply and scope of duties allow.

Staff performing temperature checks on any group of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic quarantined persons

X

X

X

X

Staff having direct contact with (including

X**

transport) or offering medical care to

confirmed or suspected COVID-19 cases (see

CDC infection control guidelines)

X

X

X

Staff present during a procedure on a

X

confirmed or suspected COVID-19 case that

may generate respiratory aerosols (see CDC

infection control guidelines)

X

X

X

Staff handling laundry or used food service items from a COVID-19 case or case contact

X

X

Staff cleaning an area where a COVID-19

Additional PPE may be needed based on X

X

case has spent time

the product label. See CDC guidelines for

more details.

Classification of Individual Wearing PPE

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary. ** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

Verbal Screening and Temperature Check Protocols for

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Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed.
• Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions: ◦ Today or in the past 24 hours, have you had any of the following symptoms? ◾ Fever, felt feverish, or had chills? ◾ Cough? ◾ Difficulty breathing? ◦ In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
• The following is a protocol to safely check an individual’s temperature: ◦ Perform hand hygiene ◦ Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ◦ Check individual’s temperature ◦ If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ◦ Remove and discard PPE ◦ Perform hand hygiene
Page last reviewed: March 23, 2020 Content source: National Center for Immunization and Respiratory Diseases (NCIRD), Division of Viral Diseases
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Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 2 of 27 Page ID #:5421
Office of Refugee Resettlement Unaccompanied Alien Child Program
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ORR Background
The Office of Refugee Resettlement (ORR) is committed to helping refugees and other vulnerable populations transition into their new lives in the United States by providing benefits, services and linkages that enable them to achieve self‐sufficiency and become integrated members of U.S. society.
ORR is part of the U.S. Department of Health and Human Services’ (HHS) Administration for Children & Families (ACF)
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Who are UAC?
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Who are UAC?
Unaccompanied alien children or “UAC” are children and youth who enter the United States without lawful immigration status and are without a parent or legal guardian in the United States who is available to provide care and physical custody.
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Who are UAC?
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Who are UAC?
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Who are UAC?
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Unaccompanied Alien Children Program
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Quick Guide to Legal Authority
• Flores Settlement: Minimum standards for services; placement of UAC in State licensed shelters; access to legal representation and information; placement of UAC in least restrictive environment
• Homeland Security Act of 2002 § 462: UAC placement, care giving and release authority to ORR; data keeping; defines UAC; pro bono outreach and legal notices.
• Trafficking Victims Protection Reauthorization Act of 2008 §235: UAC transfer to HHS custody within 72 hours upon apprehension or discovery barring exceptional circumstances; releases to sponsors; home study and post‐release service requirements; further restrictions on use of secure care providers
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Flores Settlement Agreement
“Licensed program” absent an emergency or influx
Release order preference of parents/legal guardians for those not a danger, and then other sponsors, including family and family friends, as well as licensed programs
Requires that children receive specific services and have certain rights while in the care of a licensed program
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Flores: Minimum Standards
• Proper physical care and maintenance, living accommodations, food, clothing, personal groom items.
• Case Management and release services (formerly called “family reunification”)
• Individual and Group Counseling • Individualized needs assessments • Medical and dental services, family planning services, immunizations • Educational Services • Recreation/Leisure • Acculturation • Access to Religious Services • Visitation with family/communication with family • Legal Services Orientation and access to legal services • Transportation / Escort
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How are UAC referred to ORR?
In most cases, UAC are apprehended by immigration officials from DHS and then referred to the care and custody of ORR. UAC are also referred to ORR by:
• Port of Entry • State and Local child welfare
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UAC Referrals by Fiscal Year

70000

60000 50000 40000 30000

57431

59170

49631

24668

33726

40810

20000 10000

6658 6089

13625 7383 6560

0 FY08 FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18

Page396

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 15 of 27 Page ID #:5434
UAC Program
ORR has the following responsibilities while caring for UAC entering the United States:
– Making and implementing placement decisions for the UAC – Ensuring the child’s interests are considered in decisions
related to the care and custody of UAC – Providing home assessments for certain categories of UAC
at risk – Conducting follow‐up services for certain categories of
children
Page397

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 16 of 27 Page ID #:5435
Types of Programs
• Shelter: UACs age 13 and over with no or very minimal criminal history. • Staff‐Secure: 1.2.4 of the Policy Guide: UACs who require close supervision,
but do not require placement in a secure care provider facility. • Secure: 1.2.4 of Policy Guide: UAC poses a danger to self or others; or has
been charged with or convicted of a criminal offense, or is chargeable with such an offense. • Residential Treatment Center: 1.4.6 of the Policy Guide: UAC who has a psychiatric or psychological issue that cannot be addressed in an outpatient setting. Licensed psychologist or psychiatrist makes finding. • Transitional Foster Care: UACs under 13, related minors with one minor under 13, pregnant/parenting teens, or UACs with special needs. • Long Term Foster Care: UACs who are expected to have a protracted stay in ORR custody due to a lack of viable sponsorship or due to eligibility for immigration relief.
Page398

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 17 of 27 Page ID #:5436
Care Provider Staff
• Youth care workers spend 24 hours a day with UAC, providing direct supervision of all UAC activities.
• Case Managers work to identify and screen a potential sponsor for UAC to live with while they await their immigration hearing.
• Medical Staff provide routine medical care for UAC, which includes an initial medical examination, appropriate follow‐up care, and vaccinations.
• Mental Health Clinicians meet with UAC in weekly sessions. They screen for trauma, distress, and mental illness.
Page399

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 18 of 27 Page ID #:5437
UAC Programming
• Education: Daily education activities onsite • Know your rights: Presentations from legal services
providers about UAC’s legal rights • Phone calls: Two phone calls a week to family or
potential sponsor • Access to religious services • Access to counseling, pre‐programmed phones, and
legal service providers
Page400

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 19 of 27 Page ID #:5438
Length of Care
On average, UAC spend 60 days in ORR care However, there is no time limit. ORR’s top priority is identifying an appropriate sponsor
Page401

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 20 of 27 Page ID #:5439
Sponsorship Process

Case Manager identifies sponsors
w/UAC and UAC family

Case Manager contacts Sponsor.
Sponsor files application

Sponsor background check and assessments
completed.

FFS Makes release decision or
approves HS be performed

Case Coordinator Third Party
Recommendation

Page402

Case Manager Recommendation

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 21 of 27 Page ID #:5440
Sponsorship Process
Care provider staff work with the UAC’s potential sponsor to complete the family reunification package.
There are four categories of sponsors:
– Category 1 – Category 2 – Category 3 – Category 4
Page403

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 22 of 27 Page ID #:5441
Sponsors
October 2017 through May 2018

11% 42%
47%

Category 1 42% Category 2 47% Category 3 11%

Page404

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 23 of 27 Page ID #:5442
What happens when a UAC is ready to release?
UAC shelter staff coordinate the transportation/ reunification with sponsor UAC are released to sponsor UAC live with their sponsor in the community and go to their immigration court hearings
Page405

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 24 of 27 Page ID #:5443
Monitoring
Page406

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 25 of 27 Page ID #:5444
ORR staff
ORR Staff
– Federal Field Specialist (FFS) – FFS Supervisor – Contract Field Specialist (CFS) – Project Officers
Independent Third Party (non‐ORR)
– Case Coordinator
Page407

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 26 of 27 Page ID #:5445
Monitoring Activities
ORR monitoring is an ongoing, multi‐layered process that includes the following activities:
– Desk Monitoring – Routine site visit monitoring – Site visits in response to a request – Monitoring visits
Most programs are state licensed and are subject to monitoring by the state.
Page408

Case 2:18-cv-05741-DMG-PLA Document 227-18 Filed 03/25/20 Page 27 of 27 Page ID #:5446

Team

Activities Timeframe

ORR Monitoring Team Contractor Field Specialist ORR Project Officer ORR Federal Field Specialist

Review policy and procedures, reports, case files over a five day visit and inspection

Every two years

Routine site visits to observe the facility. Visits may be announced or unannounced.

One or two times per month

Conducts ongoing desk monitoring by reviewing all required documents and reports

Ongoing

FFS are the “eyes and ears” and are in constant communication with the programs

Ongoing

Page409

Case 2:18-cv-05741-DMG-PLA Document 227-19 Filed 03/25/20 Page 1 of 5 Page ID #:5447
EXHIBIT P
Page410

Case 2:18-cv-05741-DMG-PLA Document 227-19 Filed 03/25/20 Page 2 of 5 Page ID #:5448
Page411

Case 2:18-cv-05741-DMG-PLA Document 227-19 Filed 03/25/20 Page 3 of 5 Page ID #:5449
Page412

Case 2:18-cv-05741-DMG-PLA Document 227-19 Filed 03/25/20 Page 4 of 5 Page ID #:5450
Page413

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Page414

 
 Case 2:18-cv-05741-DMG-PLA Document 227-20 Filed 03/25/20 Page 1 of 3 Page ID #:5452

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 LUCAS R., et al.,

Case No. 2:18-CV-05741 DMG PLA

13

Plaintiffs,

14

v.

15 ALEX AZAR, et al.,

16

Defendants.

17

[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
Hearing: None Set Judge: Hon. Dolly M. Gee

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] TEMPORARY RESTRAINING ORDER CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227-20 Filed 03/25/20 Page 2 of 3 Page ID #:5453

1

IT IS ORDERED that Plaintiffs’ ex parte application for a temporary restraining

2 order (ECF No. __) is GRANTED.

3

IT IS ACCORDINGLY ORDERED as follows:

4

1. Absent good cause based on articulable facts to believe that available

5 custodian(s) would harm or neglect a class member, or that an individual class member

6 presents an articulable danger to the public, the Office of Refugee Resettlement

7 (“ORR”) shall immediately release all members of the “unfit custodian class” as defined

8 in the Court’s order of December 27, 2018 (ECF No. 141) (“Unfit Custodian Class

9 Members”) to available custodians, place such class members in non-congregate care

10 that satisfies Centers for Disease Control and Prevention guidelines set forth in

11 paragraph 4 below, or provide all such class members with evidence supporting ORR’s

12 decision not to release them and an opportunity to be heard regarding the grounds for

13 continued congregate detention as provided in Paragraph 2 of this Order.

14

2. Each Unfit Custodian Class Member whom ORR fails to release to an available

15 custodian, or else place in non-congregate care, shall be permitted to appeal continued

16 ORR custody pursuant to the procedure set out in ORR Policy Guide § 2.7.8, available

17 at www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-

18 section-2#2.7 (last visited March 24, 2020), effective immediately, modified as follows:

19

a. All Unfit Custodian Class Members shall have the right of administrative

20 appeal without regard to the degree of family affinity of their available custodians.

21

b. The Assistant Secretary for Children and Families, or his or her designee, shall

22 afford each administratively appealing Unfit Custodian Class Member —

23

i. a reasonable opportunity to examine in advance of hearing ORR’s

24

evidence for continued detention;

25

ii. the right to be represented by counsel;

26

iii. a reasonable opportunity to submit documentary evidence and testimony

27

in support of release;

28

iv. an opportunity to be heard via teleconference or video conference within

1

[PROPOSED] TEMPORARY RESTRAINING ORDER CASE NO. 2:18-CV-05741 DMG PLA

Case 2:18-cv-05741-DMG-PLA Document 227-20 Filed 03/25/20 Page 3 of 3 Page ID #:5454

1

five business days of filing an administrative appeal;

2

v. a hearing in which the government bears the burden of proof; and

3

vi. a written decision issued no later than three business days following

4

hearing directing the Unfit Custodian Class Member’s immediate release,

5

transfer to non-congregate care, or else setting out the reasons for

6

continued custody and placement in congregate care.1

7

3. ORR shall advise all Unfit Custodian Class Members of this Order, either

8 individually or by posting this Order in English and Spanish prominently in all

9 congregate care facilities.

10

4. For purposes of this Order, “non-congregate care” refers to settings in which

11 a class member is permitted to maintain physical distance from others, avoid contact

12 with ten or more individuals, and observe such other measures to avoid contracting

13 COVID-19 as the Centers for Disease Control and Prevention may prescribe as public

14 health policy for the general public during the COVID-19 emergency.

15

IT IS FURTHER ORDERED that Defendants show cause on or before

16 _________, 2020, why they should not be preliminarily enjoined as set out in

17 Paragraphs 1-4 of this Order.

18 19 Dated: _________, 2020
20

United States District Judge

21

22

23

24

25

26

27 1 Plaintiffs assert that due process requires greater protections than currently sought in

28

this Temporary Restraining Order. See First Amended Complaint ¶ 111. Plaintiffs reserve their right to seek such protections through a preliminary injunction.

2

[PROPOSED] TEMPORARY RESTRAINING ORDER CASE NO. 2:18-CV-05741 DMG PLA

 
 Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 1 of 30 Page ID #:5458

1 JOSEPH H. HUNT

Assistant Attorney General

2 United States Department of Justice

Civil Division

3 SCOTT G. STEWART

Deputy Assistant Attorney General

4 AUGUST E. FLENTJE

Special Counsel

5 ERNESTO H. MOLINA, JR.

JEFFREY S. ROBINS

6 Deputy Directors

Office of Immigration Litigation

7 BENJAMIN MARK MOSS

W. DANIEL SHIEH

8 Senior Litigation Counsel

MARINA C. STEVENSON

9

ANTHONY J. MESSURI JONATHAN K. ROSS

10

Trial Attorneys P.O. Box 878

11

Ben Franklin Station Washington, D.C. 20044

12

Telephone: (202) 616-9344 Facsimile: (202) 305-1890

13 Email: Ernesto.H.Molina@usdoj.gov

14 Attorneys for Defendants

15

UNITED STATES DISTRICT COURT

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17

18 LUCAS R. et al.,

19

Plaintiffs,

Case No.: 2-18-CV-05741 DMG (PLA)
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EX PARTE

20

v.

APPLICATION FOR A

21

ALEX AZAR, Secretary of U.S. Dep’t of Health and Human Services, et al.,

TEMPORARY RESTRAINING ORDER [DKT. NO. 227]

22

Defendants. 23

24

25

26

27

28

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 2 of 30 Page ID #:5459

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ................................................................................ iii

3 I. INTRODUCTION AND SUMMARY......................................................... 1

4 II. BACKGROUND ......................................................................................... 6

5

A. ORR’s Robust Actions............................................................................ 6

6

B. Plaintiffs’ TRO Motion..........................................................................10

7 III. ARGUMENT..............................................................................................11

8

A. Plaintiffs Fail to Show a Likelihood of Success on the Merits ...............12

9

1. Plaintiffs’ TVPRA Claim Fails Because ORR is Fulfilling its

10

Obligations Under the TVPRA by Implementing Careful Protocols in

11

Response to COVID-19 and Plaintiffs’ Proposed Relief Would Force

12

ORR to Violate those Obligations .....................................................12

13

2. The Relief Plaintiffs Seek is Barred by the Flores

14

Agreement ........................................................................................15

15

3. Plaintiffs Cannot Succeed on the Merits Because the TRO that they

16

Seek is Beyond the Scope of the Complaint’s Allegations and is

17

Improper for Class-Wide Relief ........................................................17

18

4. Plaintiffs Fail to Show a Due-Process Violation ...............................19

19

5. Plaintiffs Fail to Show That Their Requested Relief Will Mitigate

20

Risk of Harm from COVID-19 .........................................................21

21

B. Considerations of Harm and the Equities Cut Against a TRO ................23

22 IV. CONCLUSION ..........................................................................................24

23

24

25

26

27

28

ii Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 3 of 30 Page ID #:5460

1

TABLE OF AUTHORITIES

2

CASES:

3 Clark v. Bank of Am. N.A.,
4 No. 14-14-232, 2015 WL 1433834 (D. Idaho Mar. 27, 2015)......................17, 18

5 Committee of Cent. Am. Refugee v. INS,
6 795 F.2d 1434 (9th Cir. 1986) ...........................................................................24

7 Estelle v. Gamble, 8 429 U.S. 971 (1976) ..........................................................................................19

9 Flores v. Sessions, 10 No. 85-4544, 2018 WL 10162328 (C.D. Cal. July 30, 2018) .......................16, 17

11 Garcia v. Google, Inc., 12 786 F.3d 740 (9th Cir. 2015) .................................................................11, 17, 24

13 Gonzales v. Gorsuch, 14 688 F.2d 1263 (9th Cir. 1982) ...........................................................................21

15 Los Angeles v. Lyons, 16 41 U.S. 95 (1983) ..............................................................................................21

17 L.W. v. Grubbs, 18 92 F.3d 894 (9th Cir. 1996) ...............................................................................19

19 Martin v. Int'l Olympic Comm., 20 740 F.2d 670 (9th Cir. 1984) .............................................................................24

21 Northern Arapaho Tribe v. LaCounte, 22 Nos. 60-11 & 16-60, 2017 WL 908547 (D. Mont. March 17, 2017) ..................17

23 Orr v. Bank of America, NT & SA, 24 285 F.3d 764 (9th Cir. 2002) .............................................................................10
25 Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.2d 636 (9th Cir. 2015) .............................................................................17
26

27

28

iii Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 4 of 30 Page ID #:5461

1 Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011) .............................................................................19
2

3

Reno v. Flores, 507 U.S. 292 (1993) .......................................................................... 5, 14, 19, 21

4

5

SEC v. Randolph, 736 F.2d 525 (9th Cir. 1984) .............................................................................15

6 Sekerke v. Leo,
7 No.: 3:19-cv-0034-GPC-RBB, 2020 WL 619581 (S.D. Cal. Feb. 10, 2020) .....17

8 Vermont Agency of Nat'l Res. v. United States ex rel. Stevens,
9 529 U.S. 765 (2000) ..........................................................................................22

10

11

12

STATUTES:

13 8 U.S.C. § 1232 .................................................................................................. 1

14 8 U.S.C. § 1232(c)(2)(A) .................................................................................... 1
15 8 U.S.C. § 1232(c)(3)(A) ............................................................... 1, 2, 12, 14, 16
16

17

18

FEDERAL RULES OF CIVIL PROCEDURE:

19 Fed. R. Civ. P. § 56(c)(4) .....................................................................................10

20

21 OTHER MATERIALS:
22
23 Flores Settlement Agreement.....................................................................2, passim

24

25

26

27

28

iv Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 5 of 30 Page ID #:5462

1 I. INTRODUCTION AND SUMMARY

2

This Court should deny Plaintiffs’ extraordinary request for class-wide injunctive

3 relief. Plaintiffs’ claims lack merit, their motion rests on a mistaken view of the facts,

4 and Plaintiffs fail to account for the many equitable and harm-related considerations

5 that weigh strongly against the relief that Plaintiffs seek.

6

The COVID-19 pandemic has presented tremendous challenges for our Nation.

7 But the Executive Branch is responding to those challenges for everyone in the country

8 and for everyone who is entitled to its protection—including for the children at issue in

9 this case. The U.S. Department of Health and Human Service (HHS) Office of Refugee

10 Resettlement (ORR) is carefully, thoroughly, and expeditiously safeguarding the health

11 and interests of the unaccompanied alien children (UACs) entrusted to its care under

12 federal law. See 8 U.S.C. § 1232. Plaintiffs’ claims in their TRO motion are not well

13 taken and do not warrant a disruption of ORR’s careful efforts to fulfill its statutory

14 mandate. And their request for TRO relief is fundamentally improper: The purpose of

15 a TRO is to maintain the status quo, yet the broad and hasty relief that Plaintiffs seek

16 would be highly disruptive and would violate the TVPRA. Indeed, the rushed and

17 sweeping relief that Plaintiffs seek threatens to increase the risk of harm to UACs in

18 ORR custody. The Court should deny this motion for the multiple reasons.

19

Plaintiffs’ arguments fail on the merits. To start, far from showing that ORR is

20 violating the Trafficking Victims Protection Act of 2008 (TVPRA), the government is

21 complying with the TVPRA, and the relief requested by Plaintiffs would violate that

22 statute. The TVPRA imposes robust and thorough procedures that ORR must use, all

23 to the end of safeguarding the welfare of children in its care, which includes both its

24 obligation to safely and expeditiously release children to approved sponsors under 8

25 U.S.C. § 1232(c)(3)(A) and to maintain safe custody of those children under 8 U.S.C.

26 § 1232(c)(2)(A). ORR’s procedures are suited to safeguard these interests during the

27 COVID-19 pandemic. In fulfilling its TVPRA obligations for safe custody, ORR

28 maintains rigorous protocols for handling infectious diseases for children in care,

- 1 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 6 of 30 Page ID #:5463

1 including mandatory staff training requirements, isolation capabilities across ORR’s

2 network of care providers that are suitable for housing children, hygiene education, and

3 medical screenings. See ORR Guide § 3.4.6. ORR also issued extensive field guidance

4 on the COVID-19 pandemic to its care provider network on March 2, March 13, March

5 19, March 20, and March 23, which implements important safety measures such as

6 mandatory temperature checks for children and visitors; placement and travel

7 restrictions to and from at-risk facilities; and heightened medical care. See Ex. R-W.

8

Against the backdrop of ORR’s intensified efforts to protect the health and well-

9 being of UACs in its care and custody during the COVID-19 pandemic, Plaintiffs’

10 miscalculated assertions of injury have led them to ask that this Court impose a

11 truncated and unlawful standard for release of those children (to un-vetted sponsors)

12 and require administrative hearings for all denied sponsors where ORR would need to

13 affirmatively prove that a sponsor would harm or neglect a child to avoid release. Br.

14 21; Pls. Proposed Order 41. That relief would upend the TVPRA’s requirement of safe

15 reunification, which requires that the sponsor be “capable of providing for the child’s

16 physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). The unsubstantiated claims

17 of harm that Plaintiffs allege do not justify the far-sweeping relief they seek. Plaintiffs

18 disregard that the COVID-19 response requires flexibility as the situation develops and

19 given the varying circumstances in different parts of the country. Plaintiffs filed an

20 emergency TRO motion without any real effort to understand the significant actions

21 being taken by ORR in response to this fast-developing challenge. And Plaintiffs

22 indiscriminately lump all congregate-care facilities together, irrespective of size,

23 location, and set-up. These differing circumstances show that class-wide resolution

24 would override the discretion ORR and care facilities need to manage this developing

25 and changing crisis across the country to protect children and would disregard ORR’s

26 statutory obligations of safe and expeditious relief.

27

Plaintiffs’ TRO request also conflicts with the Flores Settlement Agreement.

28 Flores resolved due-process claims concerning the medical care of minors in custody

- 2 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 7 of 30 Page ID #:5464

1 as well as release standards and procedures. Plaintiffs cannot bring claims here alleging

2 that these policies and procedures violate the Due Process Clause; these claims are

3 barred by res judicata. If there are concerns that Flores is now being violated, those

4 claims must proceed in a Flores enforcement action. Plaintiffs cannot avoid that

5 limitation by asserting that their claims have been brought exclusively under the

6 TVPRA or that the TVPRA (or Flores) creates rights that they can enforce under the

7 Due Process Clause. As this Court has held, the TVPRA is coextensive with Flores

8 when it comes to release provisions. And the Agreement’s care provisions are far more

9 detailed than the TVPRA and ORR, under this Court’s ruling, provides medical care

10 that seeks compliance with applicable state laws. Plaintiffs should be precluded from

11 arguing here that the medical care standards they negotiated for, and agreed to, in Flores

12 are insufficient. If Plaintiffs are no longer satisfied with their negotiated and agreed-to

13 rights under Flores, then they should seek to amend that agreement. Having not done

14 so, their claims should fail because Plaintiffs cannot here claim that the medical care

15 being provided does not comply with the Flores Settlement Agreement.

16

All of Plaintiffs’ TRO merits arguments also fail because none of the facts

17 relevant to their TRO request are pleaded in their operative (first amended) complaint

18 (“complaint” or “Compl.,” ECF No. 80), and thus none of the certified classes are

19 appropriate to address their new allegations of injury. The complaint makes no

20 allegations about any of the protocols that ORR has implemented to protect those in its

21 care and custody from COVID-19, or the general conditions, cleanliness, or medical

22 treatment inside any of ORR’s grantee care facilities where UACs reside while awaiting

23 unification with a safe sponsor. And notably, the operative complaint does not seek to

24 address “extraordinary circumstances” like COVID-19—rather, it seeks an

25 administrative appeal for minors denied unification to otherwise qualified sponsors

26 under the TVPRA. Compl. ¶¶ 179-90. Plaintiffs are thus attempting to bring, by TRO

27 motion, new claims based on new facts to seek new relief. Plaintiffs must file a new

28 complaint and withstand the rigorous class-certification procedures before being

- 3 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 8 of 30 Page ID #:5465

1 granted this relief. Given the widely varying circumstances presented by COVID-19,

2 and the quickly changing crisis, class resolution very likely would not be appropriate if

3 it were sought. But in any event, certification of a class for their original claims does

4 not provide roving authority to obtain class-wide oversight on any issue of concern.

5

Even if Flores were disregarded and Plaintiffs could obtain TRO relief in this

6 case on a due-process theory, Plaintiffs fail to show a due-process violation arising from

7 either a lack of adequate medical care or unsafe conditions. The extensive measures

8 that ORR has taken in coordination with the CDC and other components of HHS

9 confirms the contrary. ORR has gone to extraordinary lengths to care for children in a

10 profoundly challenging situation, while also fulfilling its statutory mandate under the

11 TVPRA for expeditious release of children to custodians who will care for them,

12 implementing measures both to prevent the spread of COVID-19 and provide

13 appropriate medical care in the case of infection. ORR: (1) has stopped placements in

14 New York, California, and Washington; (2) has limited air travel to local placements;

15 (3) requires all care providers to conduct temperature checks for every UAC in care

16 twice each day; (4) elevates all medical cases with flu-like symptoms; (5) maintains

17 medically appropriate isolate capabilities at all of its shelters; and (6) restricts access to

18 all visitors who display either an elevated temperature or flu-like symptoms. See Ex.

19 Q-W. For medical care, ORR provides all UACs with testing at the recommendation

20 of medical personnel, has full-time medical staff on-site, and isolates anyone who either

21 tests positive or is suspected of exposure to the COVID-19 virus. Id. ORR is continuing

22 to monitor the fast-developing situation, and will make further changes to policies as

23 warranted. See e.g., Ex. R at 1. These measures show neither a violation of the Due

24 Process Clause’s requirement for adequate medical care, nor deliberate indifference to

25 protecting the safety and well-being of minors in its custody.

26

Plaintiffs also fail to show how their alleged injury would be redressed by the

27 relief they seek. They provide no explanation of how the relevant actors could safely

28 undertake Plaintiffs’ proposed mass transit, within days, of hundreds of children across

- 4 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 9 of 30 Page ID #:5466

1 the country at a time when public transportation is halted or severely restricted given

2 the risks it poses to travelers and others. Nor have they shown why release to un-vetted

3 sponsors who may have differing home situations would be safer than remaining in a

4 facility with a medical staff on call 24 hours a day in conjunction with the normal

5 TVPRA vetting process that Congress required. And Plaintiffs have not shown that

6 their demand for administrative hearings during a time of strained resources for ORR

7 would redress the harm that they allege. Plaintiffs’ requested additional procedures are

8 not required under the Due Process Clause, as explained in Reno v. Flores, 507 U.S.

9 292, 303 (1993), and would take crucial agency employees away from the vital task of

10 releasing children to vetted sponsors and keeping them safe and healthy in the

11 meantime.

12

The remaining injunctive factors weigh against the extraordinary remedy that

13 Plaintiffs seek. As explained, Plaintiffs have not shown on a class-wide basis that every

14 child in ORR care faces the same or a substantially similar risk of injury, given the

15 significant differences in size, location, and capacity across ORR’s network of care

16 providers. Indeed, most of ORR’s facilities are operating far below capacity, facilitating

17 practices recommended by the CDC such as social distancing. Plaintiffs’ claims of

18 harm rely on guidance issued to prisons and jails, not congregate-care facilities housing

19 children that often have to take account of many other factors such as whether the

20 children, who are always in some form of custody, have a safe home in which to be

21 placed. Even then, ORR’s efforts to mitigate the risks of COVID-19 meet or exceed

22 those that the CDC recommends for other types of congregate-care facilities. Ex. AA

23 ¶ 20. Nor have Plaintiffs shown that the public interest weighs in their favor given the

24 operational reality of what they seek would entail. Plaintiffs’ dangerous proposal

25 potentially involves transporting hundreds or thousands of children across the country,

26 contrary to the CDC’s shelter-in-place guidance, to un-vetted potential applicants, some

27 of whom are strangers to the child, along with requiring ORR to implement potentially

28 hundreds of administrative hearings for the remaining children during a pandemic.

- 5 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 10 of 30 Page ID #:5467

1 II. BACKGROUND

2

A. ORR’s Robust Actions

3

Defendants’ official response to COVID-19 dates at least to January 31, 2020,

4 when the Secretary of Health and Human Services declared COVID-19 a public health

5 emergency. See Ex. AA ¶ 13. From the first appearance of COVID-19 in the United

6 States, ORR has monitored the developing public health situation, including both

7 federal and state mandates applicable to the jurisdictions in which ORR grantee care

8 provider facilities—the locations where UAC in ORR custody and care reside—

9 operate. Id. ¶ 17-18. ORR has provided the facilities with regular updates on infection

10 prevention and control protocols, and has issued guidance on the screening and

11 management of potential COVID-19 exposure among UACs, facility personnel, and

12 visitors, consistent with official guidance from the Center for Disease Control (CDC),

13 an agency of the Department of Health and Human Services. Id.

14

ORR is equipped to deal with viral and bacterial outbreaks. It has years of

15 experience in identifying, containing, and treating contagious diseases, including

16 seasonal influenza (flu), measles (rubella), mumps (parotitis), chicken pox (varicella),

17 and tuberculosis. See Ex. Q ¶ 15. Even before the spread of COVID-19, ORR was

18 ahead of the curve in developing protocols, policies, and experience relating to

19 infectious disease containment. See id.

20

ORR’s policies relating to managing communicable diseases are extensive,

21 including policies requiring routine assessment of travel history when a child arrives at

22 a care provider program, as well as medical screenings and vaccinations within 48

23 hours; ability to isolate or quarantine individuals for infectious disease control; hand

24 hygiene and respiratory etiquette educational efforts; and established communicable

25 disease reporting to the local health authority. Ex. Q ¶ 16 (citing ORR Policy Guide §

26 3.4.6 (Management of Communicable Diseases); § 3.4.7 (Maintaining Health Care

27 Records and Confidentiality)).

28

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1

Even accounting for its significant experience successfully managing

2 communicable diseases, ORR’s response to COVID-19 remains highly responsive and

3 adaptable to the particular challenges of COVID-19. See Ex. Q ¶ 14, 17. To enhance

4 its efforts to prevent the risk of exposure to COVID-19, ORR has mandated that all

5 visitors and staff seeking to enter any grantee care provider facility must answer

6 COVID-19 screening questions and submit to a mandatory temperature check. Id. ¶ 18.

7 Except for UACs being processed for admission to the particular facility, grantee care-

8 provider facilities are required to deny access to anyone who has a fever of 100℉ or

9 above; who exhibits symptoms of an acute respiratory infection; who has had contact

10 with someone with a confirmed COVID-19 diagnosis in the previous 14 days; who has

11 been tested for COVID-19 and is awaiting test results; or in the previous 14 days, has

12 traveled to an area identified by the CDC as having widespread, sustained community

13 transmission of COVID-19. Id. All UACs entering ORR care are screened for COVID-

14 19 exposure or symptoms consistent with CDC COVID-19 guidelines. Id. ¶ 19. UACs

15 at risk of COVID-19 exposure based on reported travel history, but without symptoms,

16 are quarantined and monitored for 14 days. Id. ¶ 20. UACs who exhibit COVID-19

17 symptoms will be isolated and tested in consultation with the local health authority. Id.

18

Alongside measures to prevent exposure to COVID-19, ORR has instituted a

19 rigorous monitoring regime to assure that any UAC who exhibits symptoms of COVID-

20 19 is identified and appropriately isolated in consultation with the local health authority.

21 Ex. Q ¶ 20-21. During this time in isolation, a child receives the same services as non-

22 isolated peers in the same facility, which includes recreation and counseling, with

23 adjustments—particularly to education services—to accommodate proper infection-

24 control procedures. Id. ¶ 28. ORR has also required that each grantee care-provider

25 facility monitor the temperature of every UAC in care. Id. ¶ 22. Children’s temperatures

26 are recorded twice daily. Id. If any UAC has a temperature above 100℉, the grantee

27 care provider must immediately alert ORR, and must do so each day any child has a

28 temperature over 100℉. Id. Further, any UAC who exhibit symptoms consistent with

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1 COVID-19 will be immediately isolated and referred for evaluation by a licensed

2 medical provider, in consultation with local health authorities, and tested for COVID-

3 19, if that is the health provider’s guidance. Id. ¶ 23.

4

The isolation procedures are the same for any UAC determined to be at risk for

5 COVID-19 exposure or infection. Ex. Q ¶ 24. More specifically, the affected UAC

6 will be provided a private room, with a closed door and bathroom access, preferably a

7 private bathroom that is not used by others. Id. State and local health officials, along

8 with ORR’s health division, are notified and consulted for additional guidance on risk

9 assessment, symptom monitoring, and isolation/quarantine. Id. Any facility personnel

10 who enter an occupied isolation room are required to wear personal protective

11 equipment, including an N95 respiratory mask and goggles or a face shield, per CDC

12 guidelines. Id. ¶ 25. If a UAC in isolation needs to leave the isolation room for any

13 reason (e.g., to use the bathroom, to attend a medical appointment, etc.), the UAC must

14 wear a surgical mask. Id. ¶ 26. If a UAC needs to be transported to a health clinic or

15 other off-site location, the facility must notify the local health department for guidance

16 on proper precautions during transport. Id. ¶ 27. The facility is also required to alert

17 the intended destination in advance so proper infection control measures may be

18 undertaken. Id. UACs are required to remain in isolation until cleared by appropriate

19 health officials. Id. ¶ 28.

20

Besides extensive procedures to limit exposure to individual facilities and

21 address and treat any affected UAC who may have COVID-19, ORR has also

22 implemented further protocols to limit the overall risk of spreading COVID-19. ORR

23 has stopped the placement of UAC at grantee care facilities in California, New York,

24 and Washington due to COVID-19 outbreaks among the general public in those states.

25 Ex. Q ¶ 32. ORR continues to monitor applicable state guidance to determine whether

26 conditions warrant the suspension of placements in any particular locale, and will make

27 changes as circumstances require. Id. Further, ORR prioritizes local facility placements

28 for UACs in order to limit the need for travel on commercial airliners, but may use

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1 commercial airliners to reunify a UAC with a sponsor, if it is safe to do so. Id. ¶ 33.

2 Care providers must assess the safety of the UAC’s ultimate destination, to anticipate

3 logistical issues associated with COVID-19 disruptions. Id. Care providers also must

4 consult with a Federal Field Specialist (who is an ORR employee) if a UAC will be

5 traveling to a jurisdiction with widespread COVID-19 community transmission and

6 resulting shelter-in-place order. Id. In such cases, release should be postponed until it

7 is safe for the UAC to travel. Id.

8

Before the outbreak, ORR had been working on a telehealth initiative to increase

9 UAC access to healthcare resources. Ex. Q ¶ 34. In light of orders restricting movement

10 in New York and California, ORR rolled out its telehealth program in those locations

11 ahead of schedule in order to ensure care provider facilities are able to provide UACs

12 with access to medical care without leaving facilities. Id.

13

As of March 26, 2020, there were four confirmed cases among UACs in ORR

14 care provider facilities. Ex. Q ¶ 35. All four cases were in a single facility in New York

15 State, and the affected UACs are currently in isolation, per ORR and CDC guidelines,

16 and are receiving appropriate monitoring and medical care. Id. Eighteen UACs in the

17 care provider network had been tested, with at least eleven returning negative results.

18 Ex. Q ¶ 36. While the tests were pending, pursuant to CDC Guidance, any UAC who

19 had undergone COVID-19 testing was considered presumptively positive until results

20 are available (usually, within three or four days after testing). Ex. Q ¶ 37. Eight

21 program staff/contractors or foster parents at five care-provider programs located in

22 New York, Washington, and Texas have self-reported testing positive for COVID-19.

23 ORR’s medical team and the affected programs have worked in close coordination with

24 the local public-health departments on appropriate public-health measures, which

25 typically involve self-quarantine at home, and the tracking and monitoring of the

26 affected staff members’ contacts within the care-provider facility, per CDC guidance.

27 Ex. Q ¶ 38. The protocols discussed above are in place to prevent the further spread of

28

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1 COVID-19, and ORR is providing medical care to those affected children. See Ex. Q

2 ¶ 39.

3

CDC has issued guidance on COVID-19 containment in various congregate

4 settings, including colleges, nursing homes, prisons, and homeless shelters. Ex. Q ¶ 36.

5 ORR considered the CDC guidance when developing its own COVID-19 procedures,

6 vetted its COVID-19 procedures with CDC, and understands that public health experts

7 at CDC agree that the ORR procedures are consistent with CDC guidance. Id. Indeed,

8 CDC has advised that “ORR’s current COVID-19 procedures are consistent with CDC

9 guidances for congregate settings; they direct grantee care-provider facilities to

10 implement both containment and mitigation measures. In some respects, ORR’s current

11 COVID-19 procedures actually exceed those set forth in the CDC guidances to

12 congregate care facilities.” Ex. AA ¶ 20.

13

B. Plaintiffs’ TRO Motion

14

Plaintiffs filed their TRO papers on March 25. Plaintiffs acknowledge that in

15 light of the COVID-19 pandemic, ORR recently adopted safety measures for its

16 congregate-care facilities and the unaccompanied minors in ORR care. Pl. Br. 7-

17 8. They claim, however, that ORR guidelines fail to comply with safety measures

18 from CDC and the medical community. Br. 8. Plaintiffs suggest that “ORR Guidance

19 makes no mention of requiring or encouraging social or physical distancing between

20 children or staff, nor of limiting the gathering of groups of children or staff within

21 facilities.” Br. 8-9 (citing Graves Decl.; Wang Decl.; Ex. K).1 And they suggest that

22 1 The materials submitted with Plaintiffs’ TRO request should be given minimal
23 weight. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773-74 (9th Cir. 2002);

24 L.R. 7-6, 7-7 (mandating that the declarations “shall contain only factual, evidentiary

25

matter and shall conform as far as possible to the requirements of Fed. R. Civ. P. 56(c)(4).”). Plaintiffs’ declarations are replete with hearsay and speculation,

26 improperly attempt to lay the foundation necessary for expert opinion, and are of

27 tenuous relevance to litigation involving UACs in shelters. E.g., Meyers Decl. (prisons and jails); Graves Decl. (populations other than ORR children). These and
28 other exhibits present no factual evidence or expert opinion upon which the Court

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1 ORR’s COVID-19 guidelines “fall far below federal, state, and local mandates to

2 reduce the spread of COVID-19,” highlighting states’ general “shelter in place”

3 orders, as well as protocols for homeless shelters and prisons. Br. 10-12 (citations

4 omitted). Plaintiffs do not cite any state guidance requiring congregate care facilities

5 to release all children in care, nor could they. See Ex. X-Y (NY and CA guidance for

6 children to remain in congregate care).

7

Plaintiffs allege that Defendants are in violation of the TVPRA by continuing

8 to hold unaccompanied minors in shelters, specifically in instances where they have

9 viable sponsors. Br. 13-16. They also claim that ORR is violating the terms of the

10 Flores Settlement Agreement by not releasing UACs to remain in its care, alleging

11 that said facilities are both unsafe and unsanitary. Br. 17. And they claim ORR

12 violated UACs’ procedural and substantive due-process rights by exposing them to

13 dangerous conditions. Br. 18-22.

14

Finally, Plaintiffs claim that because of “the rapid spread of COVID-19 across

15 the country and the impossibility of maintaining proper social distancing in ORR

16 congregate care facilities, Class Members face an unacceptable risk of contracting

17 COVID-19 in ORR custody.” Br. 23. They ask the Court to enter a TRO ordering

18 the immediate release of hundreds of UACs from congregate care.

19 III. ARGUMENT

20

The Court should deny Plaintiffs’ TRO motion. “When ‘a plaintiff has failed

21 to show the likelihood of success on the merits, [the Court] need not consider the

22 remaining three [elements]” for TRO relief. See Garcia v. Google, Inc., 786 F.3d 733,

23 740 (9th Cir. 2015) (en banc) (internal quotations and formatting omitted). Plaintiffs

24

25 should rely in finding facts. Finally, all of Plaintiffs’ exhibits that focus on the nature 26 and infectiousness of COVID-19 (see, e.g., Ex. B; Ex. C; Ex. E) should be afforded
27 minimal weight compared with evidence from HHS, which houses true authorities: the Centers for Disease Control and the Assistant Secretary for Preparedness and
28 Response.

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1 cannot make this showing. And considerations of harms and the equities strongly cut

2 against a TRO, particularly where the sweeping and rushed relief that Plaintiffs seek

3 threatens to increase harm to the UACs in ORR’s care. Finally, Plaintiffs’ request for

4 relief is fundamentally improper. The purpose a TRO or preliminary injunction “is

5 merely to preserve the relative positions of the parties until a trial on the merits can be

6 held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Yet the relief

7 that Plaintiffs seek would not maintain the status quo: it would disrupt the status quo

8 and violate federal law.

9

A. Plaintiffs Fail to Show a Likelihood of Success on the Merits

10

1. Plaintiffs’ TVPRA Claim Fails Because ORR is Fulfilling its

Obligations Under the TVPRA by Implementing Careful Protocols

11

in Response to COVID-19 and Plaintiffs’ Proposed Relief Would

12

Force ORR to Violate those Obligations

13

ORR is addressing the challenges presented by COVID-19 consistently with the

14 TVPRA’s requirements. The TVPRA imposes robust and thorough procedures on

15 ORR, all to the end of safeguarding the welfare of children in its care, which includes

16 both its obligation to safely and expeditiously release children to approved sponsors

17 under 8 U.S.C. § 1232(c)(3)(A), and to maintain safe custody of those children under

18 Section (c)(2)(A). ORR’s procedures are particularly suited to safeguard these interests

19 during the COVID-19 pandemic. In fulfilling its TVPRA obligations, ORR maintains

20 rigorous protocols for handling infectious diseases for children in care, including

21 mandatory staff training requirements, quarantine capabilities across ORR’s network of

22 care providers that are suitable for housing children, hygiene education, and medical

23 screenings. See ORR Guide § 3.4.6. These procedures were formalized in 2015, but

24 have been in place even longer. To further ensure the safety of children in care, ORR

25 also issued extensive field guidance on the COVID-19 pandemic to its care provider

26 network on March 2, March 13, March 19, March 20, and March 23, which implements

27 important safety measures such as mandatory temperature checks for children and

28 visitors; placement and travel restrictions to and from at-risk facilities; and heightened

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1 medical care. See Ex. R-W. These guidelines are consistent with the approaches of

2 state child welfare agencies who have children in congregate care, including New York

3 and California, two epicenters of the COVID-19 pandemic. See Ex. X-Y.

4

Plaintiffs therefore misfire in contending that COVID-19 precautions are “all but

5 impossible” for children in ORR congregate care. Nor have they explained why

6 management of ORR grantee facilities should work differently from the many other

7 types of congregate care facilities like nursing homes and long-term care facilities in

8 the United States. They cite CDC Guidance used for jails and prisons, but the CDC has

9 recognized that appropriate COVID-19 measures can be implemented at certain

10 congregate care settings, including nursing homes and long-term care facilities.

11 https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-

12 long-term-care-facilities.html; see also Ex. AA ¶ 17-18, 20 (CDC declaration).

13

In contending that ORR is violating the TRO (Br. 13-17), Plaintiffs fail to account

14 for these significant measures that ORR has taken. And the arguments they do make

15 lack merit. Plaintiffs principally contend that continuing to keeping the UACs at issue

16 in custody for more than 30 days violates the TVPRA’s prompt-placement mandate

17 because those children “have family or other custodians available to receive them” and

18 “[t]hirty days should be more than enough for ORR to assess post-release risk” to them.

19 Br. 13-14, 16-17; see also Br. 13-17. The TVPRA erects no 30-day requirement, and

20 Plaintiffs have provided no factual basis for grafting one into the statute when Congress

21 has not spoken. Rather, Plaintiffs’ claims are based on mere speculation and hypothesis,

22 citing no evidence that a significant number of periods longer than 30 days are due to

23 improper reasons.

24

Plaintiffs also suggest that ORR takes longer than 30 days to release the children

25 at issue because of “discretionary investigatory measures” or “administrative

26 inefficiency or indifference” and that such grounds are inadequate in the circumstances

27 here. See Br. 15-16. But Plaintiffs cite no evidence to show that those reasons apply to

28 the UACs here—let alone uniformly or on a class-wide basis. And the evidence shows

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1 otherwise, as Plaintiffs are aware given their regular Flores updates on ORR’s

2 population in care.

3

Indeed, far from showing that ORR is violating the TVPRA, the relief that

4 Plaintiffs request itself squarely conflicts with the TVPRA. Plaintiffs ask that the Court

5 order ORR to release a child “[a]bsent good cause based on articulable facts that

6 available custodian(s) would harm or neglect a class member, or that an individual class

7 member presents an articulable danger to the public.” Pls. Proposed Order 1. But this

8 standard conflicts with the TVPRA. The standard states that ORR “may not” place a

9 minor with a proposed custodian “unless” ORR determines that the “proposed custodian

10 is capable of providing for the child’s physical and mental well-being,” which “at a

11 minimum” “shall include verification of the custodian’s identity and relationship to the

12 child, if any, as well as an independent finding that the individual has not engaged in

13 any activity that would indicate a potential risk to the child.” 8 U.S.C. § 1232(c)(3)(A)

14 (emphasis supplied). Plaintiffs ask ORR to release “[a]bsent good cause based on

15 articulable facts that available custodian(s) would harm or neglect a class member, or

16 that an individual class member presents an articulable danger to the public.” Pls.

17 Proposed Order at 1 (emphasis supplied). That is, instead of demonstrating the ability

18 to provide for the child, Plaintiffs request there simply be no articulable evidence the

19 applicant sponsor would harm the child.

20

Plaintiffs also ask the Court to direct ORR to provide an administrative hearing

21 to all applicants for whom a determination has not yet been made. Pls. Proposed Order

22 1. Such a hearing would consist of the right to examine evidence, an opportunity to

23 submit evidence, and a hearing. Id. at 1-2. But Congress did not provide these rights

24 in the TVPRA. (And the Supreme Court has already said these are not required by the

25 Due Process Clause, see Reno v. Flores, 507 U.S. 292, 303 (1993) (rejecting an asserted

26 “right to an individual hearing on whether private placement would be in the child’s

27 ‘best interests’” when “institutional custody (despite the availability of responsible

28

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1 private custodians) is not unconstitutional in itself.”).) There is no basis for engrafting

2 such requirements onto the procedures here.

3

It is true that as of March 26, 2020, there have been four confirmed COVID-19

4 cases among UACs in one ORR care provider facility in New York. Ex. Q ¶ 35. But

5 ORR has been addressing those cases with care and expedition, including providing

6 immediate testing of every individual suspected of exposure, quarantine, and following

7 CDC guidance. And importantly to the current motion seeking class-wide relief, there

8 are no cases elsewhere in the network, and Plaintiffs have not shown that all UACs in

9 ORR custody are at similar risk of injury. Indeed, children in ORR care are not located

10 in just one uniform facility, and children are not all released to comparable homes.

11

2. The Relief Plaintiffs Seek is Barred by the Flores Agreement

12

Plaintiffs contend that ORR has violated the Flores Settlement Agreement (Br.

13 17-18), but the request for a TRO conflicts with the Agreement. As this Court knows,

14 that Agreement remains in force and resolved due-process claims relating to the medical

15 care of minors while in custody as well as standards and procedures for their release.

16 See Flores Settlement Agreement ¶¶ 14, 15A, 17; Flores v. Sessions, 2018 WL

17 10162328 (C.D. Cal. July 30, 2018) (rejecting effort to impose additional release

18 procedures under Flores Agreement or TVPRA). Plaintiffs are “members of the class

19 protected under the settlement in Flores.” Compl. ¶ 2; Order (Nov. 2, 2018).

20 Accordingly, Plaintiffs cannot bring claims here alleging that the policies for providing

21 medical care and policies and procedures for release of minors violate the Due Process

22 Clause. See SEC v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984) (consent decrees have

23 the force of res judicata). Instead, if there are concerns that the Flores Agreement is

24 now being violated, those claims must proceed in an enforcement action in the Flores

25 litigation. See Order (Nov. 2, 2018) (“the interests of judicial economy counsel against

26 permitting them to enforce the Flores Agreement in this action”); id. (citing cases laying

27 out the “prohibition on duplicative actions”).

28

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1

Plaintiffs cannot avoid that limitation by asserting that their claims have been

2 brought exclusively under the TVPRA or that the TVPRA (or Flores Agreement)

3 creates rights that they can now enforce under the Due Process Clause. As this Court

4 has held, the TVPRA is coextensive with the Flores Agreement when it comes to release

5 provisions, as “[b]oth the TVPRA and the Flores Agreement allow ORR to determine

6 a proposed sponsor’s suitability” and in this respect “the Ninth Circuit noted that the

7 TVPRA’s suitability requirements mirror their counterparts in the Agreement.” Flores,

8 2018 WL 10162328, at *2 (citing Flores, 862 F.3d at 878). The Flores Agreement

9 resolved claims relating to the procedures for release, and Plaintiffs should not be re-

10 litigating those procedures here. See id. And under the TVPRA, ORR “may not”

11 release unless it determines that the potential custodian is capable of caring for the

12 minor’s physical and mental well-being. The evaluation “shall, at a minimum, include

13 verification of the custodian’s identity and relationship to the child, if any, as well as an

14 independent finding that the individual has not engaged in any activity that would

15 indicate a potential risk to the child.” 8 U.S.C. § 1232(c)(3)(A). The statute thus both

16 mandates an affirmative determination and vests the responsibility in ORR. Plaintiffs

17 have no basis for departing from that.

18

And the care provisions of the Flores Settlement Agreement—in Exhibit 1 to that

19 Agreement—are far more detailed than the TVPRA. See 2014 WL 7152078 (describing

20 the medical care that must be provided to UAC). In its July 30, 2018 order, however,

21 the Flores Court ruled that this Exhibit requires medical care that complies with

22 applicable state laws. See Order 3 n.5. Plaintiffs should be precluded from arguing here

23 that the standards of medical care they negotiated for, and agreed to, in Flores are

24 insufficient. If Plaintiffs are no longer happy with their negotiated and agreed-to rights

25 under Flores, then they should seek amendment of that agreement either through

26 negotiations with the government or from the Court. See Flores v. Sessions, No. 85-

27 4544, ECF No. 455, at 7 (C.D. Cal. July 9, 2018) (denying the government’s motion to

28 amend the agreement, but noting that “the parties are always free to meet and confer

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1 regarding any contractual amendments on which they can mutually agree”). Further, as

2 we explain, their claims that ORR has violated paragraph 9 of the Flores Agreement by

3 failing to provide “suitable living accommodations” fails on the merits (Br. 17-18), as

4 ORR’s COVID-19 protocol and procedures fully comply with existing CDC and state

5 and local guidance, see supra 12-13, infra 18-20 (¶ 12 does not apply, because it

6 pertains to conditions following apprehension and not for ORR licensed facilities).

7

3. Plaintiffs Cannot Succeed on the Merits Because the TRO that they

Seek is Beyond the Scope of the Complaint’s Allegations and is

8

Improper for Class-Wide Relief.

9

Plaintiffs TRO fails for a further independent reason. To qualify for injunctive

10 relief, Plaintiffs must also show a sufficient nexus between the injury claimed in the

11 motion and the conduct alleged in the underlying complaint. See Pac. Radiation

12 Oncology, LLC. v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015); see also

13 Garcia v. Google, inc., 786 F.3d 733, 744 (9th Cir. 2015) (because of a “mismatch”

14 between the plaintiff’s substantive copyright claim and the dangers she hoped to remedy

15 through an injunction, the district court did not abuse its discretion in denying Garcia’s

16 request for a preliminary injunction). To that end, courts have denied motions for

17 injunctive relief that are based on allegations and claims for relief that are beyond the

18 scope of the complaint. In Sekerke v. Leo, No.: 3:19-cv-0034-GPC-RBB, 2020 WL

19 619581, at *9 (S.D. Cal. Feb. 10, 2020), for example, the court denied plaintiff’s TRO

20 request because it was premised on events that occurred after and outside of the events

21 that gave rise to the complaint. The court ruled that if it were to grant plaintiffs’ TRO

22 request, it “would be required to engage in a factual analysis distinct from the analysis

23 required by the claims,” which would be improper. Id. (citations omitted); see also,

24 e.g., Northern Arapaho Tribe v. LaCounte, Nos. 60-11 & 16-60, 2017 WL 908547, at

25 *3 (D. Mont. Mar. 7, 2017) (where TRO motion and complaint “present[ed] distinct

26 facts and address distinct governing statutes and regulations,” TRO motion fell “beyond

27 the scope of either Complaint in this consolidated action.”); Clark v. Bank of Am. N.A.,

28

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1 No. 14-14-232, 2015 WL 1433834, at *8 (D. Idaho Mar. 27, 2015) (declining to

2 consider TRO or preliminary injunction request raising “new arguments” that related

3 broadly to the mortgage-centered conduct at the heart of complaint, but raised new,

4 specific allegations).

5

The Court should reject the TRO request for the same reasons. Plaintiffs’ TRO

6 motion rests on events that occurred after and outside of events giving rise to the

7 complaint. The complaint in this case has nothing to do with ORR’s response to

8 infectious disease or COVID-19. It does not assert that ORR’s response to this crisis is

9 inappropriate or inadequate under the TVPRA or the Constitution. And it does not lay

10 out facts to establish that the response is improper or inadequate. And because of that,

11 there was never any assessment of whether this Court could properly define or certify a

12 class to address such concerns through class remedies. The complaint makes only

13 general claims about the treatment and care of children, which cannot properly give rise

14 to either a certification order or class-wide injunctive relief addressing COVID-19. See

15 Compl. ¶ 189-90 (“As a matter of policy and practice, Defendants unreasonably and

16 unnecessarily delay or refuse to release children to [proposed custodians]”). Similarly,

17 the class was certified to address timing-based concerns about release; it was not

18 certified to address requirements imposed by the TVPRA or the Due Process Clause on

19 release relating to COVID-19 or concerns related to the spread of infectious diseases.

20 See ECF No. 126 at 16-17 (certifying class where “ORR is refusing or will refuse to

21 release to parents or other available custodians within thirty days of the proposed

22 custodian’s submitting a complete family reunification packet on the ground that the

23 proposed custodian is or may be unfit”).

24

Plaintiffs’ TRO request bears no relationship to the ground for relief in the

25 complaint or the basis for this Court’s class-certification order. The complaint and the

26 certified class challenge purported refusals to release minors to otherwise suitable

27 sponsors within thirty days of receipt of a completed Family Reunification Packet, and

28 the prayer for relief makes no mention of dramatically altering the standard governing

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1 release under the TVPRA for sponsors due to a global pandemic. And there is no nexus

2 to the purported lack of process in sponsor denial adjudication alleged in the complaint

3 and the TRO’s request for a mass release of hundreds of children to individuals who

4 have not been properly vetted and have not shown they will be safe sponsors under the

5 standards of the TVPRA. The newly alleged relief sought here must be sought, if at all,

6 in a new complaint, not shoehorned into the existing one by requesting administrative

7 hearings that are entirely inappropriate in a time of strained agency resources devoted

8 to combatting the pandemic. And any class-wide relief would need to be sought based

9 on such a complaint and only after Plaintiffs establish that they satisfy the rigorous

10 requirements imposed by Rule 23.

11

For scope reasons alone, Plaintiffs lack a likelihood of success on the merits.

12

4. Plaintiffs Fail to Show a Due-Process Violation

13

As explained above, due-process claims relating to conditions and release for

14 minors in ORR care were resolved in Flores, and any claim regarding enforcement of

15 that Agreement would need to be raised in that matter under the terms set forth in the

16 Flores Agreement. In any event, ORR’s extensive and comprehensive response to

17 COVID-19 satisfies the Due Process Clause. Plaintiffs’ arguments to the contrary, Br.

18 18-22, lack merit.

19

Due process requires ORR to provide Plaintiffs with adequate medical care and

20 safe conditions. See Reno v. Flores, 507 U.S. 292 (1993). And due process bars the

21 government from acting with deliberate indifference to a known or obvious danger.

22 Patel v. Kent Sch. Dist., 648 F.3d at 971-72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900

23 (9th Cir. 1996)). Deliberate indifference is a high bar and recognizes the discretion of

24 caregivers to make appropriate treatment decisions—prior cases have explained that it

25 could be met when a caregiver denies access to medical care, interferes with treatment,

26 or fails to respond to a child’s medical needs. Estelle v. Gamble, 429 U.S. 971, 104-05

27 (1976).

28

- 19 Defendants’ Opposition to TRO

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1

ORR has taken extensive measures to address the risks that COVID-19 could

2 present to the UACs in its case. ORR has implemented a number of heightened safety

3 precautions to ensure minors in its custody are not exposed to COVID-19 and that

4 should those precautions not succeed, minors would receive the proper medical care.

5 To prevent infection, ORR guidance to its network of care providers requires any UAC

6 exhibiting symptoms consistent with COVID-19, such as coughing, fever, or difficulty

7 breathing, at any point during their time in ORR care, to be immediately isolated and

8 referred for evaluation by a licensed medical provider, in consultation with the local

9 health authority. Ex. Q ¶ 22. Temperature checks are taken twice a day for UACs in

10 care, with temperatures over 100 degrees requiring elevation to ORR, and visitors may

11 not enter shelters who exhibit any of the above symptoms. Ex T. Further, if a UAC is

12 recommended for testing by the health care provider or public health department, the

13 UAC will receive testing. Ex. Q ¶ 23. ORR has also initiated telehealth capabilities in

14 California and New York to ensure care provider facilities are able to provide UAC

15 with access to medical care without having to leave their facilities. Id. ¶ 34. And for

16 the rare cases where a UAC becomes infected with COVID-19, like the four children at

17 the one NY shelter above, full medical quarantine is available for the other children in

18 care, and the child is guaranteed to receive appropriate medical treatment. Id. ¶ 35; ORR

19 Guide § 3.4.6.

20

Plaintiffs cite no evidence that ORR has acted with deliberate indifference to the

21 impact of the COVID-19 pandemic on UACs in care. And the response shows that

22 ORR has been extremely active and diligent. ORR provided initial COVID-19 guidance

23 to the entire UAC care-provider network on March 2, 2020. Ex. R. It provided

24 additional guidance on COVID-19 to the entire UAC care-provider network on March

25 19, 21, and 23. Ex. R-W. The mere fact that minors remain in congregate care while

26 ORR attempts to safely and expeditiously reunify them with a qualified sponsor does

27 not show that ORR has either failed to provide appropriate medical care required under

28 the Due Process Clause, or that ORR is deliberately indifferent. Plaintiffs therefore

- 20 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 25 of 30 Page ID #:5482

1 cannot prevail in the due process claims either as alleged in the complaint or as

2 reiterated in the TRO and as applied to medical care and treatment.

3

Given these points, there is no basis to Plaintiffs’ argument that ORR has failed

4 to provide reasonable protections from the risks presented by the COVID-19 pandemic.

5 Br. 18-19. Nor is there any merit to Plaintiffs’ claim that ORR is subjecting the UACs

6 at issue to “conditions that amount to punishment” or that are “excessive.” Br. 19; see

7 also Br. 19-20. As shown by the steady stream of guidance issued by ORR to address

8 COVID-19 for its population in care, Ex. R-W, ORR’s protocol for combatting the

9 pandemic is calculated and calibrated to address the risk here—it is not excessive or

10 unjustifiable as Plaintiffs claim.

11

Finally, Plaintiffs contend that ORR’s failure to release the UACs at issue more

12 rapidly violates procedural-due-process requirements for all UACs with an identified

13 sponsor, even if the sponsor is distantly or unrelated to the child. See Br. 20-22. But

14 Congress did not provide these rights under the TVPRA, and the Supreme Court has

15 already held that such a hearing is not required by the Due Process Clause, when

16 ”institutional custody (despite the availability of responsible private custodians) is not

17 unconstitutional in itself.” See Reno, 507 U.S. at 303. For the reasons explained above,

18 supra 18-19, ORR’s medical care for its UAC population during this time of pandemic

19 fully comports with the Due Process clause, and thus, Plaintiffs’ procedural Due Process

20 claims similarly fail.

21

5. Plaintiffs Fail to Show That Their Requested Relief Will Mitigate

Risk of Harm from COVID-19

22 Plaintiffs’ request for relief is barred for another independent reason: Plaintiffs’

23 alleged injury—that they are subject to being exposed to COVID-19 due to their

24 placement in congregate care—will not be redressed by ordering their release on an

25 expedited basis to potential sponsors who have not yet been vetted. “Redressability

26 requires an analysis of whether the court has the power to right or to prevent the claimed

27 injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.). For

28

- 21 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 26 of 30 Page ID #:5483

1 standing purposes, a plaintiff’s injury is redressable where there is “a ‘substantial

2 likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of

3 Nat’l Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted).

4 Plaintiffs have not carried their burden of showing that their desired relief—expedited

5 release from ORR custody based on improperly overriding the TVPRA standard—will

6 likely diminish their risk of exposure to COVID-19.

7

Notably, Plaintiffs do not articulate how release into communities or to sponsors

8 who may already be exposed to COVID-19 will reduce the likelihood that the released

9 minors will be exposed to or contract COVID-19. And in contrast to ORR’s careful

10 procedures for protecting against COVID-19 transmission, Plaintiffs do not explain

11 how a massive number of expedited releases will safely occur. They offer no discussion

12 of how to safely transport children from a facility that does not yet have a single case

13 of COVID-19 into homes and communities that cannot make the same representation

14 to justify class-wide relief. They have not addressed the reality that the situation is

15 vastly different in different parts of the country, and to the contrary, ORR is taking that

16 into account in managing its many grantees and placements with grantees. Ex. Q ¶ 32.

17 Indeed, granting Plaintiffs’ proposed TRO could even increase children’s risk of

18 exposure to COVID-19. ORR should be permitted to fulfill its statutory mandate of

19 assessing whether releasing a child would be safe under all the circumstances, and a

20 blanket order requiring releases on a set timeframe would be the opposite of helping to

21 mitigate risks posed by the COVID-19 pandemic.

22

Moreover, ORR provides medical care at no cost of children in its custody,

23 including Plaintiffs. Ex. Q ¶ 45. By reason of their placement in ORR facilities,

24 Plaintiffs have greater access to robust medical care than does the general public. See

25 id.; ORR Guide § 3.4.6. Aside from the increased risk of placing vulnerable children

26 with un-vetted sponsors, ordering their release from ORR grantee care providers would

27 leave these children without their present access to health care and could put Plaintiffs

28 at greater risk should they contract COVID-19; at a minimum, ORR must be permitted

- 22 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 27 of 30 Page ID #:5484

1 to assess whether proposed sponsors are able to provide adequate medical care.

2 Additionally, transporting unexposed children via airlines to affect unification would

3 increase their risk of exposure—the very harm Plaintiffs fear.

4

B. Considerations of Harm and the Equities Cut Against a TRO

5

Plaintiffs’ TRO request fails on the remaining injunctive factors as well.

6

Plaintiffs fail to establish irreparable injury. An injunction is “unavailable absent

7 a showing of irreparable injury, a requirement that cannot be met where there is no

8 showing of any real or immediate threat that the plaintiff will be wronged []—a

9 ‘likelihood of substantial and immediate irreparable injury.” Los Angeles v. Lyons, 41

10 U.S. 95, 111 (1983). Plaintiffs contend that detaining the children at issue “in

11 congregate facilities that are inherently unsafe in the midst of the COVID-19 pandemic

12 rather than releasing them to available custodians violates both substantive and

13 procedural due process.” Br. 18. But Plaintiffs’ view fails to account for the measures

14 that ORR has put into place (and will continue to put into place) to protect the children

15 committed to its care. As discussed above, ORR has deployed extensive resources and

16 efforts to address the harms that Plaintiffs claim. Given these measures in particular,

17 Plaintiffs have not established that residing at an ORR grantee care provider facility

18 increases risk to UACs of exposure to COVID-19 or presents a sufficient likelihood of

19 irreparable harm. Moreover, many ORR grantee care provider facilities are currently

20 far below capacity, which better enables social distancing. Ex. Q, ¶ 13-14. Notably, 21 States continue to consider congregate care facilities essential.2 Plaintiffs have not

22 shown that Defendants are unprepared to respond to COVID-19 infections in specific

23 grantee care facilities, let alone that they are unprepared to do so on a nationwide basis.

24 Indeed, as shown above, ORR has robust procedures in place to protect children from

25 the disease and provide any needed medical treatment. Further, the CDC indicates that

26 “children do not appear to be at higher risk for COVID-19 than adults; . . . adults make

27

28

2 See, e.g., https://www.gnyha.org/news/executive-order-identifies-essential-healthcare-operations/

- 23 -

Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 28 of 30 Page ID #:5485

1 up most of the known cases to date.”3 Plaintiffs are not entitled to immediate release to

2 un-vetted applicant sponsors or to a transfer in facilities based on a conjectural injury

3 that defies the known facts. As to the equities, the public interest favors not disturbing

4 ORR’s careful and adaptable response to this situation, especially where release

5 threatens the public interest and increases health risks to the very children who Plaintiffs

6 purport to help.

7

Finally, Plaintiffs have not satisfied the standard for a mandatory injunction.

8 “Where a party seeks mandatory preliminary relief that goes well beyond maintaining

9 the status quo pendent lite, courts should be extremely cautious about issuing a

10 preliminary injunction.” Martin v. Int’l Olympic Comm., 740 F.2d 670, 675 (9th Cir.

11 1984); see also Committee of Cent. Am. Refugee v. INS, 795 F.2d 1434, 1442 (9th Cir.

12 1986). For mandatory preliminary relief to be granted, the plaintiff “must establish that

13 the law and facts clearly favor [the plaintiff’s] position.” Garcia v. Google, Inc., 786

14 F.3d 733, 740 (9th Cir. 2015) (emphasis in original). That is, the showing necessary to

15 obtain an injunction that alters the status quo is higher than the showing necessary to

16 merely preserve the status quo. See, e.g., id. Plaintiffs fall far short of making the

17 necessary showing—their TRO motion is beyond the scope of the facts alleged in the

18 complaint, it is unripe, it is not based on a class certified for the claims that Plaintiffs

19 now make, it fails to show a likelihood of success on the merits, it fails to show

20 irreparable injury, and it fails to show that the balance of the public interest factors

21 favors them. Plaintiffs have failed to show that the facts and law “clearly favor” their

22 position, so as to justify a mandatory injunction.

23 IV. CONCLUSION

24

In consultation with a host of federal, state, and local public health authorities,

25 ORR is working day and night to reduce the risk to UACs posed by COVID-19, while

26 complying with ORR’s statutory mandate to release these children to safe sponsors as

27

28 3 https://www.cdc.gov/coronavirus/2019-ncov/faq.html

- 24 -

Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 29 of 30 Page ID #:5486
1 soon as it is safe to do so. Plaintiffs’ requested TRO would cause the agency to violate 2 the TVPRA, undercut the agency’s prodigious efforts, and increase the risk of harm to 3 these children. The Court should deny the TRO motion. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
- 25 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230 Filed 03/27/20 Page 30 of 30 Page ID #:5487

1 DATED: March 27, 2020

2

JOSEPH H. HUNT

3

Assistant Attorney General

Civil Division 4

5

SCOTT G. STEWART

6

Deputy Assistant Attorney General

AUGUST E. FLENTJE

7

Special Counsel

8

BY: /s/ Ernesto H. Molina, Jr.

9

ERNESTO H. MOLINA

10

JEFFREY S. ROBINS

11

Deputy Directors,

Office of Immigration Litigation

12

13

BENJAMIN MARK MOSS

W. DANIEL SHIEH

14

Senior Litigation Counsel

15

16

MARINA C. STEVENSON ANTHONY J. MESSURI

17

JONATHAN K. ROSS

Trial Attorneys

18

Office of Immigration Litigation

19

Civil Division

U.S. Department of Justice

20

P.O. Box 878, Ben Franklin Station

21

Washington, DC 20044

22

Telephone: (202) 616-9344 Facsimile: (202) 305-1890

23

Email: Ernesto.H.Molina@usdoj.gov

24 Attorneys for Defendants
25

26

27

28

Respectfully submitted,

- 26 Defendants’ Opposition to TRO

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 1 of 15 Page ID #:5488
Exhibit Q
Sualog Declaration

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 2 of 15 Page ID #:5489

1

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

2

3
LUCAS R., et al.,
4
Plaintiffs,
5
v.
6
ALEX AZAR, Secretary of U.S. Dep’t of Health
7 and Human Services, et al.,

Case No.: 2:18-CV-5741 DMG (PLAx) District Judge Dolly M. Gee

8

Defendants.

9

10
DECLARATION OF JALLYN SUALOG, DEPUTY DIRECTOR, OFFICE OF REFUGEE

11

RESETTLEMENT

12

I, Jallyn Sualog, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that my testimony

13 below is true and correct:

14

1. I am the Deputy Director of the Office of Refugee Resettlement (“ORR”), an Office within

15 the Administration for Children and Families (“ACF”), U.S. Department of Health and Human Services

(“HHS”).
16
2.

I have held the position of Deputy Director since June 2018. I was previously the Director

17 of Children’s Services from September 2013 through June 2018. I have worked at ORR since February

18 2007. I have a Master’s of Arts in Clinical Psychology. Before joining ORR, I worked as a mental health

19 professional and managed the child welfare and social services programs for Hawaii’s largest non-profit

20 organization.

21

3. As the Deputy Director of ORR, I have responsibility for the oversight of the

Unaccompanied Alien Children (“UAC”) program, including all aspects of operations, planning and
22
logistics, medical services, and monitoring. My job duties include the formulation and implementation of
23
ORR’s response to COVID-19 across its network of grantee care-provider facilities.

24

4. My testimony in this declaration is based upon my personal knowledge of ORR’s response

25 to COVID-19, information obtained from records and systems maintained by ORR in the regular course of

26 performing my job duties, and CDC guidance documents regarding COVID-19, which I obtained from the

27 CDC’s official website and reviewed in connection with the performance of my duties.

28

5. I am testifying in this declaration to the best of my knowledge, and understand that this

declaration is for use in the Lucas R. case.

1 30

Defendants’ Opposition to TRO - Exhibits

002

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 3 of 15 Page ID #:5490

1

Background

2

6. ORR is the agency charged with the care and custody of UAC pursuant to 8 U.S.C. § 1232(c)

and other provisions. As such, ORR is committed to providing for the safety and well-being of all UAC
3
in its care, as well as protecting the health and safety of the communities in which these children live—
4 including from the risk of COVID-19.

5

7. To carry out its mission, ORR relies on a network of grantee care-provider facilities located

6 across the country. There are a total of 107 facilities in the ORR grantee care-provider network that house

7 UAC in a congregate setting: 98 shelters, 6 staff secure facilities, 1 secure facility, and 2 residential

8 treatment centers (“RTCs”).

9

8. Although each care-provider facility is unique in terms of its physical layout and

capabilities, the ORR Guide generally defines a shelter as “a residential care provider facility in which all

10 of the programmatic components are administered on-site, in the least restrictive environment.”1

11

9. A staff secure facility is generally defined as “a facility that maintains stricter security

12 measures, such as higher staff to unaccompanied alien children ratio for supervision, than a shelter in order

13 to control disruptive behavior and to prevent escape. A staff secure facility is for unaccompanied alien
14 children who may require close supervision but do not need placement in a secure facility. Service 15 provision is tailored to address an unaccompanied alien child’s individual needs and to manage the
behaviors that necessitated the child’s placement into this more restrictive setting. The staff secure
16
atmosphere reflects a more shelter, home-like setting rather than secure detention. Unlike many secure
17 care providers, a staff secure care provider is not equipped internally with multiple locked pods or cell
18 units.”2

19

10. A secure facility is generally defined as “a facility with a physically secure structure and

20 staff able to control violent behavior. ORR uses a secure facility as the most restrictive placement option

21 for an unaccompanied alien child who poses a danger to self or others or has been charged with having

committed a criminal offense. A secure facility may be a licensed detention center or a highly structured
22
therapeutic facility.”3

23

11. An RTC is generally defined as “a sub-acute, time limited, interdisciplinary, psycho-

24 educational, and therapeutic 24-hour-a-day structured program with community linkages, provided through

25

26 1 ORR, Children Entering the United States Unaccompanied: Guide to Terms (Mar. 21, 2016), “Shelter care,” available at
https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-guide-to-terms#Shelter Care.
27 2 Id., “Staff secure care,” available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-
unaccompanied-guide-to-terms#Staff Secure Care.
28 3 Id., “Secure care,” available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-
guide-to-terms#Secure Care.

2 30

Defendants’ Opposition to TRO - Exhibits

003

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 4 of 15 Page ID #:5491

1 non-coercive, coordinated, individualized care, specialized services and interventions. Residential

2 treatment centers provide highly customized care and services to individuals following either a community
based placement or more intensive intervention, with the aim of moving individuals toward a stable, less
3
intensive level of care or independence. ORR uses a RTC at the recommendation of a psychiatrist or
4 psychologist or with ORR Treatment Authorization Request (TAR) approval for an unaccompanied alien
5 child who poses a danger to self or others and does not require inpatient hospitalization.”4

6

12. As of March 25, 2020, there are a total of 3,374 UAC in ORR care. This includes 439 UAC

7 in long-term foster care and 374 UAC in transitional foster care, which are not congregate settings. For
8 congregate settings only, there are 2,505 UAC in shelter facilities, 28 in staff secure facilities, 12 in secure 9 facilities, and 16 in RTCs.
13. Currently, ORR’s care-provider facilities are operating significantly below their maximum
10
capacity and historical highs. For example, at this time last year (March of 2019), ORR was receiving
11 approximately 8,000 monthly referrals and had almost 12,000 minors in care with an 87% occupancy rate
12 (including influx and variance beds). In contrast, February referrals from 2020 were approximately 2,000

13 per month with approximately 3,600 minors in care, and a 28% occupancy rate (including influx and

14 variance beds). As a result, ORR currently has additional capacity and more opportunity to ensure social

15 distancing and isolation within the care provider network.
14. In addition, CDC recently issued an order under Public Health authorities suspending
16
introduction of certain persons into the United States.5 As a result, for the near-term, ORR is likely to have
17 sufficient capacity to continue to implement necessary social distancing and/or isolation.

18

ORR Infection Control Measures in Care Provider Facilities

19

15. ORR has significant historical experience with the identification, mitigation, and treatment

20 of contagious diseases affecting UAC, including seasonal influenza (flu), mumps (parotitis), chicken pox
21 (varicella), and tuberculosis. Accordingly, ORR has policies pertaining to infectious disease control that
predate the COVID-19 pandemic.
22
16. ORR’s general, long-standing policies concerning the management of communicable
23 disease require the routine assessment of travel history when a child arrives at a care-provider program;
24 medical screenings and vaccinations within 48 hours of arriving at ORR shelters; ability to isolate or

25

26 4 Id., “Residential Treatment Center (RTC),” available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united27 states-unaccompanied-guide-to-terms#Residential Treatment Center.
5 CDC Order Under Sections 362 and 365 of the Public Health Service Act (42 U.S.C. §§ 265, 268), available at
28 https://www.cdc.gov/quarantine/order-suspending-introduction-certain-persons.html.

3 30

Defendants’ Opposition to TRO - Exhibits

004

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 5 of 15 Page ID #:5492

1 quarantine individuals for the purpose of infectious disease control; hand hygiene and respiratory etiquette 2 education efforts; and established communicable disease reporting to the local health authority.6
17. Since the first reports of COVID-19 in the U.S., ORR has monitored the public health
3
reporting on COVID-19 in the jurisdictions in which grantee care-provider facilities operate. ORR has
4 provided regular updates to grantee care-provider facilities on infection prevention and control, and issued 5 guidance regarding the screening and management of UAC, facility personnel, and visitors who have
6 potentially been exposed to COVID-19. All of these measures are rooted in CDC guidance.7

7

18. To prevent those who may have been exposed to, or who may be infected with COVID-19

8 from entering ORR facilities, ORR has mandated that all visitors and staff seeking to enter any grantee
9 care-provider facility answer COVID-19 screening questions and submit to a mandatory temperature
check. With the exception of UAC who are being processed for admission, grantee care-provider facilities
10
are required to deny access to anyone with a fever of 100℉ or above; or who exhibits signs of symptoms
11 of an acute respiratory infection, such as a cough or shortness of breath; or who has had contact with

12 someone with a confirmed diagnosis of COVID-19 in the previous 14 days; or who has been tested for

13 COVID-19 and is awaiting test results; or who, in the previous 14 days, has traveled to a country identified

14 by the CDC as having widespread, sustained community transmission of COVID-19.

15

19. In addition, UAC entering ORR care are screened for COVID-19 exposure or symptoms

during their initial medical examination (“IME”), which has been expanded to include a COVID-19 health
16
screening protocol consistent with CDC COVID-19 guidelines.

17

20. UAC at risk of COVID-19 exposure based on reported travel history, but without symptoms,

18 are quarantined and monitored for 14 days. UAC who exhibit COVID-19 symptoms during their IME are

19 isolated and tested in consultation with the local health authority.

20

21. ORR has also instituted a rigorous symptom-monitoring regime to ensure that any UAC in

21 any facility who begins exhibiting potential symptoms of COVID-19 after their IME is immediately
identified and appropriately isolated in consultation with the local health authority.
22
22. Since March 19, 2020, ORR has required each grantee care-provider facility to monitor the
23 temperature of every UAC in care. UACs’ temperatures are taken twice daily, once in the morning and

24 again in the evening, and are recorded in a master census temperature report that each facility is required

25 to maintain. If any UAC is found to have a temperature above 100℉, the grantee care-provider is required

26
6 See ORR Policy Guide § 3.4.6 Management of Communicable Diseases, § 3.4.7 Maintaining Health Care Records and
27 Confidentiality, https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-3.

28

7 CDC, Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Cases,

https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.

4 30

Defendants’ Opposition to TRO - Exhibits

005

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 6 of 15 Page ID #:5493

1 to immediately alert ORR. The grantee care-provider is required to alert ORR each day that any child has

2 a temperature over 100℉. So for example, if a UAC has a 101℉ fever for three days, ORR will be alerted

of this fact every day for the duration of the child’s fever. Early identification of potential COVID-19 cases
3

allows for early introduction of appropriate public health measures.

4

23. Any UAC exhibiting symptoms consistent with COVID-19, such as coughing, fever, or

5 difficulty breathing, at any point during their time in ORR care are to be immediately isolated and referred

6 for evaluation by a licensed medical provider, in consultation with the local health authority. If a UAC is

7 recommended for testing by the healthcare provider or public health department, the UAC will receive

8 testing.

9

24. The same isolation procedures are used for any UAC determined to be at risk for COVID-

19 exposure or infection, whether based on information collected during the IME, or through subsequent

10
monitoring. The affected UAC will be provided with a private room, with a closed door and bathroom

11 access, preferably a private bathroom that is not used by other staff or UAC. State and local health

12 departments, along with ORR’s Division of Health for Unaccompanied Children (“DHUC”) are

13 immediately notified and consulted for additional guidance on risk assessment, symptom monitoring, and

14 isolation or quarantine.

15

25. Facility personnel who enter an occupied isolation room are required to wear personal

protective equipment, including an N95 respirator and goggles or a face shield, per CDC guidelines.
16
26. If a UAC in isolation needs to leave the isolation room for any reason (e.g., to attend a

17 medical appointment, etc.), the UAC must wear a surgical mask for the duration of their time outside the

18 isolation room.

19

27. If a UAC must be transported to a health clinic or other off-site location, the facility must

20 notify the local health department for guidance on proper precautions during transport. The facility is also
21 required to alert the intended destination so that proper infection control measures may be implemented
prior to the UAC’s arrival.
22
28. UAC are required to remain in isolation until cleared by the local health department or
23 DHUC. During this time in isolation, UAC receive the same services as their non-isolated peers in the
24 same facility, although services—particularly education services—may be adjusted to accommodate

25 proper infection-control procedures.

26

29. Any room, object, or vehicle used by a UAC in isolation is thoroughly sanitized afterwards.8

27

28 8 See CDC, Disinfecting Your Facility if Someone is Sick, https://www.cdc.gov/coronavirus/2019-ncov/prepare/disinfecting-
building-facility.html.
5 30

Defendants’ Opposition to TRO - Exhibits

006

Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 7 of 15 Page ID #:5494

1

30. To assess whether each grantee care-provider facility has appropriate stores of personal

2 protective equipment (“PPE”) to safely respond in the event COVID-19 is detected within their facility, on
March 13, 2020, ORR inventoried all care providers for their current levels of PPE (e.g., surgical masks
3
and gowns, face shields, N95 respirators) and cleaning/disinfecting supplies, as well as the number of staff
4 who are involved in cleaning and maintenance activities. Any facility that encounters difficulty

5 maintaining adequate levels of COVID-19 related supplies may request additional stores from FEMA, and

6 ORR may assist in facilitating any such requests.

7

31. Program staff will provide an affected UAC with notice of the isolation requirement and

8 address questions or concerns the child may have about medical isolation, as well as potential delays to

9 anticipated transfers or discharge plans. In order to protect the health of UAC and the local community,

UAC cannot be transferred either to another facility or released to a sponsor until cleared by local health
10
authorities and DHUC.

11

ORR Suspensions of Placements and Releases

12

32. Beginning on March 9, 2020, ORR stopped placements of UAC on a rolling basis in the

13 states of California, New York, and Washington due to the ongoing outbreaks of COVID-19 among the

14 general public in those states. ORR is continually monitoring the jurisdictions in which its grantee care-
15 provider facilities operate to determine whether the conditions in the community surrounding the facility
warrant the suspension of placements due to concerns related to COVID-19.
16
33. In addition, ORR is prioritizing local placements for all new referrals from DHS in order to
17 limit the need for UAC to travel on commercial airliners, which poses a risk of exposing passengers
18 (including UAC) to COVID-19. Care providers may still use air travel to reunify a UAC with their sponsor

19 if it is safe to do so. However, care providers are required to assess the safety of the UAC’s ultimate

20 destination, in order to anticipate logistical issues associated with COVID-19 disruptions. Care-provider
21 facilities are required to consult with their Federal Field Specialist (“FFS”), or delegee, if a UAC will be
traveling to a jurisdiction with widespread community transmission of COVID-19 or that is subject to a
22
community-wide “lock down,” such as California. In such cases, release should be postponed until it is
23 determined to be safe for the UAC to travel to their destination. This safety assessment includes
24 consideration of the particular UAC’s unique medical needs and vulnerabilities, and the UAC’s respective

25 medical specialists are consulted in the safety planning process.

26

34. Prior to the COVID-19 pandemic, ORR was working on a telehealth initiative to increase

27 UAC’s access to healthcare resources that may not be physically present in their locality. In light of the
state orders restricting the movement of people generally in California, New York, and elsewhere, ORR
28
has rolled out its telehealth capabilities ahead of schedule in numerous jurisdictions in order to ensure care-

6 30

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1 provider facilities are able to provide UAC with access to medical care without having to leave their

2 facilities. Those jurisdictions are: California, New York, Connecticut, Maryland, Massachusetts, New

Jersey, Pennsylvania, Texas, and Virginia. Further, ORR is awaiting final approval from telehealth
3
providers in Arizona, Florida, Illinois, Michigan, Washington, and Oregon, and anticipates the service will
4 be available in these locations in the near future.

5

COVID-19 Cases in ORR Grantee Care Provider Facilities

6

35. As of March 26, 2020, there have been four confirmed COVID-19 cases among UAC across

7 all ORR care-provider facilities. All four cases were in a single facility in New York state, and the affected

8 UAC are currently in isolation, per ORR and CDC guidelines, and are receiving appropriate monitoring

9 and medical care.
36. Currently, 18 UAC in the care-provider network have been tested. As noted, four tested
10
positive for COVID-19, 11 tested negative for COVID-19, and three have test results pending.

11

37. Pursuant to CDC Guidance, any UAC who has undergone COVID-19 testing is considered

12 presumptively positive until results are available (typically within 3-4 after testing) and are placed in

13 isolation as a precautionary measure.

14

38. In addition, a total of eight program staff, contractors or foster parents at five care-provider

15 programs across New York, Washington, and Texas have self-reported testing positive for COVID-19.
ORR’s medical team and the affected programs have worked in close coordination with the local public
16
health departments on appropriate public health measures, which typically involve self-quarantine at home,
17 and the tracking and monitoring of the affected staff members’ contacts within the care-provider facility,

18 per CDC guidance.9

19

39. In addition to the COVID-19 protocols described above, care-provider facilities are directed

20 to follow any local requirements issued by the state licensing agency or other local public health authority

21 related to the identification, reporting, and control of communicable diseases that are more stringent than

ORR’s protocols.
22
Assessment of Plaintiffs’ Assertions

23

40. In their March 22, 2020 correspondence, Plaintiffs stated that they “are advised that

24 congregate care is inherently incongruent with the recommendations of the Centers for Disease Control

25 and Prevention, state health authorities, and epidemiologists, all of whom recommend (if not mandate)

26 social distancing and related safety precautions that are difficult, if not impossible, to observe in facilities

27

28

9 CDC, Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposures: Geographic Risk and Contacts of Laboratory-confirmed Cases,

https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html.

7 30

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Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 9 of 15 Page ID #:5496

1 housing more than ten Class Members.” See Ltr. from C. Holguin (Ctr. for Human Rights & Const. Law),
2 to D. Shieh (DOJ), dated Mar. 22, 2020, at 2 (emphasis added), attached hereto as “Exhibit A.”
41. CDC, however, has issued guidance on COVID-19 containment in various congregate
3
settings, including colleges,10 nursing homes,11 prisons,12 and homeless shelters.13 ORR has implemented
4 such guidance to the extent that it can be applied to its grantee care-provider facilities. Further, ORR has 5 consulted with CDC regarding ORR’s COVID-19 containment and mitigation strategies and has been told
6 by CDC that they are consistent with CDC’s recommendations.

7

42. I have serious concerns about the proposals in Plaintiffs’ March 22 correspondence that call

8 for the expedited release of UAC to potential sponsors. In particular, the immediate, blanket release of
9 UAC to sponsors located in jurisdictions with widespread community transmission of COVID-19 would
pose a risk to the health and welfare of the UAC. UAC are currently housed in settings where infection
10
control protocols are rigorously enforced. In contrast, upon release, UAC may be exposed to COVID-19
11 in airports or transit systems, or through sponsors who have been exposed to COVID-19, or through

12 circulation in communities with widespread community transmission of COVID-19.

13

43. Many sponsors are also located in states that are currently under “lock down” in which

14 residents’ freedom of movement has been significantly curtailed in an effort to control the spread of
15 COVID-19, such as California, Washington, and New York. If anything, the current ORR approach is
consistent with those “lock down” orders in that UAC are shielded from UAC community transmission.
16
44. ORR’s efforts to safely release UAC to safe, approved sponsors remain ongoing. But
17 Plaintiffs’ proposal to release UAC to sponsors who are still undergoing vetting would materially increase
18 the risk of release to a sponsor who potentially cannot or will not shelter in place with the UAC, or who

19 may not adhere to appropriate infection control practices (e.g., social distancing), or who may circulate

20 with the UAC in areas with widespread community transmission of COVID-19, all of which increase the
21 health risks to the UAC. Plaintiffs’ proposal would also increase the risk of release to a sponsor who,
because vetting has not yet completed, is, or will become unable to financially support the UAC due to
22
COVID-19-related business closures, layoffs, or furloughs.
23

24 10 CDC, Interim Guidance for Administrators of U.S. Higher Education, https://www.cdc.gov/coronavirus/2019-
ncov/community/guidance-ihe-response.html.
25 11 CDC, Preventing the Spread of COVID-19 in Retirement Communities and Independent Living Facilities (Interim
26 Guidance), https://www.cdc.gov/coronavirus/2019-ncov/community/retirement/guidance-retirement-response.html.
12 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,
27 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.

28

13 CDC, Interim Guidance for Homeless Service Providers to Plan and Response to Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/plan-prepare-respond.html.

8 30

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1

45. The immediate, blanket release of UAC to sponsors who are still undergoing vetting would

2 also deprive these UAC of access to the significant medical resources of ORR (including testing for

COVID-19). Once they leave ORR’s care they are limited by the resources of their sponsor’s household
3

and local community, at a time when important medical resources may be in short supply.14

4

46. Plaintiffs propose that ORR can expedite the release of UAC to potential sponsors on

5 Plaintiffs’ terms while adequately vetting the sponsors for the new child welfare and public health concerns

6 that have arisen in recent months and are continuing to evolve. Plaintiffs, however, do not identify the

7 safeguards that ORR can jettison from the sponsor vetting process without putting UAC at risk.

8

47. Plaintiffs also overlook the fact that fingerprinting remains a key component for many

9 sponsors in the sponsor vetting process, particularly sponsors who are not parents or close relatives. Such
fingerprinting has been affected by the recent closures of some digital fingerprinting sites due to COVID-
10
19.

11

48. Thirty-nine digital fingerprinting sites in 21 states15 have, as of March 24, 2020, either

12 closed, curtailed their hours of operation, or switched to an “appointment only” system in response the

13 public health threat posed by COVID-19. Fingerprinting is a key component of the background check

14 process that is needed to fulfill the requirements of the TVPRA and ensure UAC are not released into the

15 custody of sponsors with disqualifying criminal histories, such as convicted human traffickers and

pedophiles. Potential sponsors for whom ORR requires fingerprints (including those who are not Category
16
1 or 2A sponsors)16 must be able to undergo fingerprinting in order for background checks to be performed.

17

49. To compensate for the reduced availability of digital fingerprinting, ORR’s has directed

18 care providers to automatically mail fingerprint cards to all individuals identified in family reunification

19 applications, so that given limited hours at digital fingerprint locations, potential sponsors are aware of the

20 ability to have fingerprints taken on fingerprint cards, including at a local law enforcement agency. While
21 fingerprint cards are often used, this alternative to digital fingerprinting could take longer for potential
sponsors to execute given the additional steps involved, and the reliance on the mail system to transmit the
22
cards.
23

24

25 14 ORR is aware of one instance in which 3 UAC who were recommended for COVID-19 testing were unable to immediately
obtain a COVID-19 test due to the particular community’s system for allocating tests among primary care providers. DHUC
26 is monitoring this situation and will intervene as necessary to assure the UAC have prompt access to COVID-19 testing.
15 Alabama, Arizona, California, Colorado, Florida, Georgia, Illinois, Louisiana, Massachusetts, Maryland, Missouri, North
27 Carolina, Nebraska, New Jersey, New York, Oregon, Pennsylvania, Tennessee, Texas, Virginia, and Washington.

28

16 ORR Policy Guide § 2.2.1, https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompaniedsection-2#2.2.1 (defining Category 2A sponsors; Category 1 sponsors are parents or legal guardians; Category 1 and 2A

sponsors generally do not require fingerprinting, unless there is a special concern).

9 30

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Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 11 of 15 Page ID #:5498

1

50. My opinion is that ORR cannot safely release UAC to sponsors absent vetting that includes

2 the completion of fingerprint-based background checks where required, or other protective measures, such
as home studies, which are required in certain instances by the TVPRA. This is especially true during the
3
current public health emergency. The jettisoning of core safeguards in the sponsor vetting process in order
4 to effectuate the immediate release of UAC would expose UAC to not only public health dangers but also
5 material child welfare and safety risks.

6

51. Plaintiffs also request a full adversarial hearing in order for UAC to challenge failures to

7 (yet) release to individuals applying to be sponsors (including individuals still undergoing vetting). In my
8 opinion, the creation and operation of such an adversarial hearing process during the current public health 9 emergency would require ORR to redeploy federal and grantee staff from program operations, and
materially degrade the ability of ORR to conduct sponsor vetting and work with grantee care-provider
10
facilities to maintain appropriate infection control measures and protect the health and safety of UAC at
11 the facilities. My opinion is that to maximize child welfare during the current public health emergency,
12 the federal and grantee staff need to focus on program operations with the goal of releasing UAC to
13 sponsors only when it is safe to do so.

14 15 Executed on March 27, 2020.

16

17

_______________________________________

18

Jallyn Sualog

19

20

21

22

23

24

25

26

27

28

10 30

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Exhibit Q, Attachment A
March 22, 2020 Letter from Plaintiffs' Counsel

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Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 13 of 15 Page ID #:5500
CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW
256 S. OCCIDENTAL BOULEVARD LOS ANGELES, CA 90057
Telephone: (213) 388-8693 Facsimile: (213) 386-9484 www.centerforhumanrights.org
March 22, 2020
Daniel Shieh Benjamin Mark Moss Marina C. Stevenson Civil Division, Office of Immigration Litigation United States Department of Justice P.O. Box 878 Ben Franklin Station Washington, DC 20044
Via email.
Re: Lucas R. et al. v. Azar et al, 2:18-cv-05741-DMG-PLA.
Dear Counsel:
Plaintiffs request that the parties meet and confer tomorrow, March 23, 2020, to explore ways in which the parties may cooperatively address the grave risk that Class Members1 in the abovereferenced action are now facing, or will shortly face, in ORR congregate care facilities as a result of the COVID-19 pandemic and public health national emergency. Absent a cooperative agreement, Plaintiffs will need to file a temporary restraining order (“TRO”) immediately seeking relief from the Court, as described below.
Plaintiffs are advised that congregate care is inherently incongruent with the recommendations of the Centers for Disease Control and Prevention, state health authorities, and epidemiologists, all of whom recommend (if not mandate) social distancing and related safety precautions that are difficult, if not impossible, to observe in facilities housing more than ten Class Members.
We accordingly wish to discuss expediting the release of Class Members to available custodians. We, of course, appreciate the need to protect children against abuse or neglect following release, but believe that such risks need to be balanced against the substantial and immediate dangers that children would face as COVID-19 spreads through congregate care facilities. See TVPRA, 8 U.S.C. § 1232(c)(2)(A) (requiring ORR “promptly” place detained children “in the least restrictive setting that is in the best interest of the child” (emphasis added)).
We are already aware that Class Members have been exposed to COVID-19 at the MercyFirst and Abbott House programs in New York. We have also been informed that ORR has stopped
1 Class Members include all youth within any of the five classes the Court certified in its order of November 2, 2018 (ECF No. 126), as modified by order entered December 27, 2018 (ECF No. 141).

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Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 14 of 15 Page ID #:5501
Daniel Shieh Benjamin Mark Moss Marina C. Stevenson
March 22, 2020 Page 2 of 3
placing Class Members at numerous other shelters in New York, as well as some in California, Washington, Oregon and Pennsylvania, though we do not know whether Class Members at shelters in these states have likewise been exposed to COVID-19.
As such, it is no longer in the best interest of many, if not all, Class Members to remain housed in congregate care, particularly where recommended and/or mandatory safety precautions are not observed and Class Members’ exposure to COVID-19 is highly likely. See TVPRA, 8 U.S.C. § 1232(c)(2)(A). During this rapidly expanding and unprecedented public health crisis, Class Members’ health and welfare must be paramount, as mandated by the TVPRA and state, local, and national authorities, among others.
We accordingly propose that the parties discuss the following:
1) The steps ORR has taken and is taking to ensure the safety of Class Members in light of the COVID-19 pandemic.
2) Whether, with respect to all members of the “unfit custodian class,” as defined in the Court’s order of December 27, 2018 (ECF No. 141) (“Unfit Custodian Class Members”), absent good cause based on articulable facts to believe that available custodian(s) would harm or neglect a class member, or that an individual class member presents a current danger to the public, ORR would be amenable to expediting release of all Unfit Custodian Class Members to available custodians who have been vetted and meet the safety threshold noted above, or else place such Unfit Custodian Class Members in non-congregate care.
3) Whether, with respect to Unfit Custodian Class Members whom it fails to release or place in non-congregate care, ORR would be amenable to amending Policy Guide § 2.7.8, available at www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-2#2.7 (last visited March 22, 2020), effective immediately, to provide as follows:
a. All Unfit Custodian Class Members shall have the right of administrative appeal without regard to the degree of family affinity of their available custodians.
b. The Assistant Secretary for Children and Families, or his or her designee, shall afford each administratively appealing Unfit Custodian Class Member —
i. a reasonable opportunity to examine ORR’s evidence and reasons for the Unfit Custodian Class Member’s continued detention in advance of any hearing;
ii. the right to be represented by counsel;
iii. a reasonable opportunity to submit documentary evidence and testimony in support of release;

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Case 2:18-cv-05741-DMG-PLA Document 230-1 Filed 03/27/20 Page 15 of 15 Page ID #:5502 Daniel Shieh Benjamin Mark Moss Marina C. Stevenson March 22, 2020 Page 3 of 3
iv. an opportunity to be heard via teleconference or video conference within five business days of filing an administrative appeal; and
v. a written decision issued no later than three business days following the administrative hearing directing the Unfit Custodian Class Member’s immediate release, transfer to non-congregate care, or else setting out the reasons for continued custody and placement in congregate care.
Plaintiffs sincerely hope the parties can work jointly to protect the health and welfare of Class Members under increasingly difficult conditions, but are prepared to pursue all available legal remedies should such cooperation prove unsuccessful. Accordingly, Plaintiffs intend to apply for a TRO and order to show cause re: preliminary injunction by no later than the close of business on March 24, 2020, in the event the parties have not reached an agreement on the above. The requested relief will include all items discussed herein.
Should Defendants decline this invitation to confer, pursuant to Local Rule 7-19, Plaintiffs ask that Defendants advise whether they oppose the application for a TRO.
Thank you,
s/ Carlos Holguín
Carlos Holguín One of the attorneys for Plaintiffs

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Case 2:18-cv-05741-DMG-PLA Document 230-2 Filed 03/27/20 Page 1 of 4 Page ID #:5503

Exhibit R
ORR March 2 Field Guidance

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Case 2:18-cv-05741-DMG-PLA Document 230-2 Filed 03/27/20 Page 2 of 4 Page ID #:5504

DRAFT COVID-19 INTERIM GUIDANCE FOR ORR PROGRAMS
Dear Colleagues –
We are providing interim preparedness and response guidance for coronavirus disease 2019 (COVID-19). This guidance is based on the Centers for Disease Control and Prevention (CDC) recommendations and is adapted for the UAC Program. This is a rapidly evolving situation, and updated guidance may be released in the future, as necessary.
Further guidance on UAC Portal documentation requirements regarding COVID-19 will be distributed in the near future.
Please carefully review the information below, and email DCSMedical@acf.hhs.gov with any questions.
CDC Situation Summary
See: https://www.cdc.gov/coronavirus/2019-ncov/summary.html
An outbreak of respiratory illness caused by a novel (new) coronavirus was first detected in Wuhan City, Hubei Province, China. Tens of thousands of corona virus disease 2019 (COVID-19) cases have been reported in China, with the virus reportedly spreading from person-to-person in parts of the country. Cases of COVID-19, are also being reported in other countries, including the United States. On January 30, 2020, the World Health Organization declared the outbreak a public health emergency of international concern.
Please refer to the CDC website for up-to-date information on COVID-19, including what is currently known about transmission, symptoms, and prevention efforts. https://www.cdc.gov/coronavirus/2019-ncov/about/index.html
Symptoms of COVID-19 Reported illnesses have ranged from mild symptoms to severe illness. Symptoms may appear 2–14 days after exposure and can include:
• Fever • Cough • Shortness of breath
ORR’s Division of Health for Unaccompanied Children (DHUC) Response • DHUC is closely monitoring COVID-19 information and CDC-issued guidance. • DHUC, in collaboration with the Department of Homeland Security/Customs and Border Protection (DHS/CBP) and the ORR Intakes Team, are monitoring when an unaccompanied alien child from a high-risk location as designated by CDC (see list below) is initially referred to ORR care. Subsequently, DHUC will notify and provide guidance to ORR care providers of those children referred for care and custody. Care providers will notify state and local health departments.
General communicable disease prevention and control measures that are already in place across ORR programs that will aid in COVID-19 response

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Case 2:18-cv-05741-DMG-PLA Document 230-2 Filed 03/27/20 Page 3 of 4 Page ID #:5505

• All ORR care providers document a child’s travel history in the Initial Intakes Assessment and the UAC Assessment.
• The health of all UAC in care is routinely assessed by a licensed medical provider during the Initial Medical Exam (IME).
• All ORR care providers must have the ability to medically isolate or quarantine a child in a room to prevent contact with other children. Ideally, this room will be linked to a private bathroom.
• All ORR care providers must educate staff and children on hand-hygiene and respiratory etiquette.
• All ORR care providers must routinely have children with respiratory disease (e.g., influenza) wear a mask when not in an isolation room, such as when visiting a healthcare facility.
• All ORR care providers have a designated way to report potentially reportable diseases to their state or local health department. This same reporting structure is used for COVID-19.
COVID-19 Specific Guidance to ORR Care Providers
1. Identification of Risk • Review jurisdiction-specific COVID-19 guidance from your state or local health department. • Any child found to be at possible risk for COVID-19 based on travel history or contact with a known case must be flagged to DHUC via email within 4 hours to: DCSMedical@acf.hhs.gov. • Information on the child’s location of origin and travel history. The following UAC Portal data fields are used to help determine the child’s epidemiologic risk: o Initial Intakes Assessment: 1) date of departure from home country; 2) date of arrival in the U.S. o UAC Assessment: 1) Additional UAC Info Tab - City of Origin, Neighborhood of Origin (be as specific as the child can provide); 2) Journey and Apprehension Tab- When did you leave your home country (month, day, year)? How long did the trip take? How did you get to the U.S.? Who did you travel with? o ORR/DHUC should be notified if any child is discovered to have been in one of the following countries in the 14 days prior to entering the United States:  China  Iran  Italy  Japan  South Korea  A current list can be found at this link under, “Affected Geographic Areas with Widespread or Sustained Community Transmission”: https://www.cdc.gov/coronavirus/2019-nCoV/hcp/clinical-criteria.html
2. Response • If a child is found to be at risk for COVID-19 exposure and does NOT have symptoms of respiratory disease: o The child must be placed into a private room with a closed door and access to a bathroom (preferably a private bathroom not used by other staff or children). o Notify the state or local health department immediately for additional guidance on risk assessment, symptom monitoring, and quarantine. o Notify DHUC immediately via an email to DCSMedical@acf.hhs.gov for additional guidance on risk assessment, symptom monitoring, and quarantine.

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o Quarantine must be maintained until the child is cleared by the health department and DHUC.
o The child CANNOT be transferred or discharged until cleared by the health department and DHUC.
o Program staff will provide the child notice of the quarantine requirement and address questions or concerns the child may have about medical isolation, as well as potential delays to anticipated transfers or discharge plans.
• If a child is found to be at risk for COVID-19 and HAS symptoms of respiratory disease: o Isolate the child in a negative pressure isolation room. If a negative pressure room is not available, place the child in a private room with a closed door access to a bathroom (preferably a private bathroom not used by other staff or children). o Notify the state or local health department immediately for additional guidance. o Notify DHUC immediately via an email to DCSMedical@acf.hhs.gov for additional guidance. o Personnel entering the room should use standard precautions, contact precautions, airborne precautions (e.g., N95 respirator), and eye protection (e.g., goggles or a face shield). o Ensure the child wears a plain surgical mask if he or she leaves the isolation room (e.g., to the bathroom or to go to a medical appointment). o If the child must be transported to a health clinic or facility, notify the local health department for guidance. Additionally, call ahead to the medical facility and notify them of the situation. This will ensure they can be ready with the necessary infection control measures. o Maintain isolation until cleared by the health department and DHUC. o The child CANNOT be transferred or discharged until cleared by the state or local health department and DHUC. o Program staff will provide the child notice of the quarantine requirement and address questions or concerns the child may have about medical isolation, as well as potential delays to anticipated transfers or discharge plans.
All CDC guidance can be found at: https://www.cdc.gov/coronavirus/2019-ncov/index.html

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 1 of 18 Page ID #:5507

Exhibit S
ORR March 13 Field Guidance

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 2 of 18 Page ID #:5508

From: To: Subject: Date: Attachments:
Importance:

ORR DUCO - All Staff FW: DHUC Dispatch: Documenting Suspect/Confirmed COVID-19 Patients and Exposures in the UAC Portal Friday, March 13, 2020 12:31:57 PM COVID-19 Guidance Initial Medical Exam Documentation 03132020.pdf COVID-19 Guidance Contact Investigation Documentation 03132020.pdf High

FYI - The message below was just sent to all programs.

POs – Please forward to your new programs that may not have made it onto the Distribution List yet. Thanks!

_____________________________________________

From:

(ACF)

Sent: Friday, March 13, 2020 12:26 PM

Subject: DHUC Dispatch: Documenting Suspect/Confirmed COVID-19 Patients and Exposures

in the UAC Portal

Importance: High

Dear Colleagues,

In response to the COVID-19 pandemic, new fields have been added to the Initial Medical Exam, Medical Complaint and Update Visit forms in the Health tab of the UAC Portal. In addition, a new Contact Investigation form has been created to capture COVID-19 exposures. Please ensure that program staff follow this guidance as correct and complete data is critical in order for ORR to track disease transmission.

Please enter reports into the Health tab based on the following:

·       If a minor is suspected of having COVID-19 at the IME because of symptom presentation (fever, cough, shortness of breath) AND an exposure (travel from a country with increased risk and/or contact with a COVID-19 patient), follow the guidance on UAC Portal documentation in the attached document titled COVID-19 Guidance: Initial Medical Exam Documentation.

·       If a minor is asymptomatic, but reports travel from or through a country with increased risk within the past 14 days OR a potential exposure to a confirmed COVID-19 patient, follow the guidance for UAC Portal documentation in the attached document titled COVID-19 Guidance: Contact Investigation Documentation. The document has two sections – Part A covers potential exposures through travel history and/or contact with a non-UAC COVID-19 patient and Part B covers potential exposures to a UAC diagnosed with COVID-19 at your program.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 3 of 18 Page ID #:5509
As the COVID-19 pandemic evolves, updated guidance on documentation will be sent to program staff. Please contact DHUC with questions or concerns, DCSMedical@acf.hhs.gov. Thank you!
, MPH Epidemiologist Office of Refugee Resettlement Divison of Health for Unaccompanied Children Mobile #: 2

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COVID-19 Guidance: Initial Medical Exam Documentation
If a UAC in ORR custody is suspected of having COVID-19 at the IME due to symptom presentation (fever, cough, shortness of breath) and exposure (travel from a country with increased risk and/or contact with a COVID-19 patient):
1) Enter the UAC’s travel history, as reported to the healthcare provider (HCP) performing the initial medical exam (IME), into the field labeled “Travel history (countries visited, date of arrival and departure for each)” in the History and Physical Assessment section. Enter each country, including country of origin, and the dates of arrival and departure for each. NOTE: If the minor reported travel history during a previous ORR assessment (e.g., UAC assessment), provide this information to the HCP before the IME begins.

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2) Document signs/symptoms reported by the UAC or as observed and reported by the ORR care provider or foster parents to the HCP during the exam in the Review of Systems (ROS) field. Ensure that the HCP addresses all signs/symptoms reported by the child or caregiver during the IME and obtains an accurate, or best estimate, onset date for each sign/symptom.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 6 of 18 Page ID #:5512
3) Check the “COVID-19” option under the “Potentially Reportable Infectious Disease” category in the Working Diagnosis field. Do NOT check “Other” and write in different versions of the COVID-19 diagnosis (e.g., R/O Coronavirus, suspect COVID, COVID-19 exposure). Select “COVID-19” as a working diagnosis even if the HCP believes it is low on the differential. As with other conditions listed in the “Potentially Reportable Infectious Disease” category, an auto-notification will be sent to DHUC.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 7 of 18 Page ID #:5513
4) Enter all diagnostic testing related to the COVID-19 diagnosis into the Potentially Reportable Infectious Disease (Non-TB) Lab Testing section on the day the specimens were collected. Select “COVID-19” from the Disease Tested dropdown. Enter the date the specimen was collected and the source. Select “PCR” in the Test column. Update the Result field from “Pending” once the results come back from the lab. Contact DHUC for assistance with interpreting lab results.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 8 of 18 Page ID #:5514
5) If DHUC concurs that the lab results validate the COVID-19 diagnosis, confirm the diagnosis in the Case Wrap-Up panel. Enter the plan details, medications, and public health interventions (e.g., quarantine/isolation, delayed discharge). Notify DHUC if a child’s discharge is delayed for any health reason, including COVID-19. If the lab results are negative, contact DHUC for guidance on documentation requirements, DCSMedical@acf.hhs.gov.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 9 of 18 Page ID #:5515
6) A confirmed COVID-19 diagnosis will generate an Illness of Public Health Concern panel in which public health interventions and potentially exposed UAC contacts should be entered. Click on the Edit icon in the Options column.
7) Complete the top three questions on “public health interventions” – Health department notification, number of staff exposed, and delayed/postponed discharge. If other UACs were exposed to the UAC patient, enter a Contact Investigation report for each. Refer to part B of the document titled, COVID19 Guidance: Contact Investigation Documentation for detailed instructions. NOTE: Notify DHUC before intakes is stopped for a health-related reason.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 10 of 18 Page ID #:5516
8) Upload all documentation (e.g., office notes, lab results) to the Files section of the report. Be specific in the “File Name” field, select the corresponding “File Type” and enter relevant details in the “File Description” field. NOTE: Remove commas from the document’s name before uploading to the UAC Portal.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 11 of 18 Page ID #:5517
COVID-19 Guidance: Contact Investigation Documentation
A. Asymptomatic UAC potentially exposed to COVID-19 through travel from or through a country with widespread or ongoing transmission of COVID-19 within the past 14 days or through contact with a non-UAC COVID-19 patient:
1) On the UAC Health screen, click on the “+” sign next to the Contact Investigations header to expand the section. Click on the “Add New” button.

2) Select “COVID-19” from the Disease dropdown and click on the “Next” button.

3) Complete all fields in the Contact Investigation form. Specify the source of exposure in the field “Relationship to case”: • If the minor travelled from or through a country with widespread or ongoing transmission of COVID-19 within the past 14 days, type “Travel history includes a country at risk for COVID-19 exposure” exactly as written and enter the country name in parentheses. For example, “Travel history includes a country at risk for COVID-19 exposure (Italy)”. • If the minor was potentially exposed to a confirmed COVID-19 patient who was not a UAC in your program, enter “Contact with a non-UAC COVID-19 patient” and enter the relationship in parentheses. For example, “Contact with a non-UAC COVID-19 patient (program staff member)”.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 12 of 18 Page ID #:5518

• If the minor was potentially exposed through travel and contact with a non-UAC COVID-19 patient, write both of the above statements and separate with a semi-colon. For example, “Travel history includes a country at risk for COVID-19 exposure (China, Iran); Contact with a non-UAC COVID-19 patient (foster parent)”.
In the field “Date of first exposure to case”, enter the LAST date of exposure to the country with widespread or ongoing transmission/COVID-19 patient. For quarantine purposes, it is important to capture the day of last exposure. Enter medications, immunizations, lab testing, and public health interventions (e.g., quarantine, delayed discharge).
The field, “Outcome of ORR contact investigation” has four options – Pending, Cleared, Incomplete evaluation, and Diagnosed with illness. Select based on the following:
• Pending: Minor is in quarantine. • Incomplete evaluation: Minor is lost to follow-up prior to the end of the quarantine period (e.g., runaway, picked up by ICE). • Cleared: Minor remained asymptomatic for the entirety of the quarantine period and has been medically cleared by the health department and
DHUC. • Diagnosed with illness: Minor developed related signs/symptoms and was diagnosed with COVID-19. A Medical Complaint must also be entered
to capture the COVID-19 diagnosis and potential exposures. Refer to steps 2 through 7 in the document, COVID-19 Guidance: Initial Medical Exam Documentation for detailed instructions. NOTE: An auto-notification will be sent to DHUC.
Remember to update the “Outcome of ORR contact investigation” with the final outcome (i.e., the Outcome should not be left as Pending).

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031

Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 13 of 18 Page ID #:5519

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032

Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 14 of 18 Page ID #:5520
B. Asymptomatic UAC potentially exposed to a UAC with COVID-19 in your program:
1) If other UACs were potentially exposed to a UAC-patient with confirmed COVID-19, enter the contacts through the COVID-19 patient’s Illness of Public Health Concern panel in the IME. Click on the Edit icon in the Options column to open the panel.
2) Add a contact by clicking the “Add New” link in the Exposures header. NOTE: Discharged UAC who are identified as potentially exposed can be entered up to 45 days after release/transfer.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 15 of 18 Page ID #:5521
3) Enter the minor’s A# and click on the “Search” button. When the correct minor displays, click on the circle in the Select column and click the “Save” button. Repeat this step for every contact.
4) After all contacts have been added, click on the Edit icon in the Contact Investigation column of the first contact to display the Contact Investigation form.

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Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 16 of 18 Page ID #:5522
5) Complete the entire form. Enter the “Relationship to the case” while at your program. In the field “Date of first exposure to case”, enter the LAST date of exposure to the country with widespread or ongoing transmission/COVID-19 patient. For quarantine purposes, it is important to capture the day of last exposure. Enter medications, immunizations, lab testing, and public health interventions (e.g., quarantine, delayed discharge). The field, “Outcome of ORR contact investigation” has four options – Pending, Cleared, Incomplete evaluation, and Diagnosed with illness. Select based on the following: • Pending: Minor is in quarantine. • Incomplete evaluation: Minor is lost to follow-up prior to the end of the quarantine period (e.g., runaway, picked up by ICE). • Cleared: Minor remained asymptomatic for the entirety of the quarantine period and has been medically cleared by the health department and DHUC. • Diagnosed with illness: Minor developed related signs/symptoms and was diagnosed with COVID-19. A Medical Complaint must also be entered to capture the COVID-19 diagnosis and potential exposures. Refer to steps 2 through 7 in the document, COVID-19 Guidance: Initial Medical Exam Documentation for detailed instructions. NOTE: An auto-notification will be sent to DHUC. Remember to update the “Outcome of ORR contact investigation” with the final outcome (i.e., the Outcome should not be left as Pending). NOTE: The Contact Investigation report can be accessed through the contact’s UAC Health screen and the COVID-19 patient’s Illness of Public Health Concern panel.

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035

Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 17 of 18 Page ID #:5523

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036

Case 2:18-cv-05741-DMG-PLA Document 230-3 Filed 03/27/20 Page 18 of 18 Page ID #:5524
6) After saving the Contact Investigation report, the system will automatically return to the COVID-19 patient’s Illness of Public Health Concern panel. Complete the Contact Investigation form for each contact, answer the Health Department notification, number of exposed staff (if known), and delayed/postponed intakes fields at the top of the panel and click the “Save” button. NOTE: Notify DHUC before intakes is stopped for a health-related reason.

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037

Case 2:18-cv-05741-DMG-PLA Document 230-4 Filed 03/27/20 Page 1 of 2 Page ID #:5525

Exhibit T
ORR March 13 Guidance on PPE Capacity

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Case 2:18-cv-05741-DMG-PLA Document 230-4 Filed 03/27/20 Page 2 of 2 Page ID #:5526

From: Subject: Date: Attachments: Importance:

UAC COVID-19 (ACF) RESPONSE REQUIRED: Personal protective equipment capacity for COVID-19 preparedness Friday, March 13, 2020 7:22:42 PM PPE Capacity v20200313 Final.xlsx High

Dear Colleague –

As one step in the continued preparation and response to the COVID-19 pandemic, please take the time to evaluate your program’s supply of personal protective equipment, sanitation supplies, and the number of staff who might be required to use them. Please use the attached spreadsheet (columns A through Z) to return this information about your program to ORR by close of business on TUESDAY, March 17th.

We know that many programs might have their own method of tracking this information, but we aim to use this information to better support programs.

Thank you for your continued efforts in protecting unaccompanied children and yourselves from COVID-19.

Unaccompanied Children Programs Office of Refugee Resettlement Administration for Children and Families U.S. Department of Health and Human Services

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Case 2:18-cv-05741-DMG-PLA Document 230-5 Filed 03/27/20 Page 1 of 3 Page ID #:5527

Exhibit U
ORR March 19 Field Guidance

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Case 2:18-cv-05741-DMG-PLA Document 230-5 Filed 03/27/20 Page 2 of 3 Page ID #:5528

From: Subject: Date: Attachments:

UAC Policy (ACF) ORR FIELD GUIDANCE: COVID-19 Thursday, March 19, 2020 4:19:03 PM UAC Temperature Tracker.xlsx

The below message was just sent to the UAC Care Provider Network.

Dear ORR Care Provider:
ORR is issuing additional field guidance to all programs to take proactive measures and limit the spread of COVID-19. Effective immediately and until further notice ORR requires care providers to:
·        Take two (2) temperature checks of each child in their care daily (once in the morning and once in the evening), following appropriate thermometer disinfection and infection control procedures between each use. Care providers must document children’s temperatures in a master census temperature report to be updated twice daily. ORR recommends you maintain a spreadsheet or hard copy document with UAC’s name, A# and dates which captures the child’s temperature twice daily.
Separately care providers report fevers to ORR Intakes at Orrducs_Intakes@acf.hhs.gov, only if a child has a temperature of 100° or above, and daily there after until no child(ren) have a temperature of 100° or above using the attached UAC Temperature Tracker spreadsheet. Care providers must password protect the UAC Temperature Tracker using the standard password when submitting the spreadsheet to ORR Intakes.
If a child has a temperature above 100°, please also follow guidelines provided in the March 13th COVID-19 Interim Guidance for ORR Programs by submitting the “INTERIM COVID-10 Acute Respiratory Disease Transfer and Discharge Tracker”.
·        Require any staff member or visitor to the care provide facility to undergo mandatory temperature checks prior to entering the facility.
·        Further, ORR care providers are prohibited from allowing entry of any individual (except UAC in the process of admission) who meet any of the following criteria: o   A fever of above 100° or above;
o   Signs of symptoms of an acute respiratory infection, such as a cough, shortness of breath;
o   In the previous 14 days has had contact with someone with a confirmed diagnosis of COVID-19; is under investigation for COVID-19; or
o   In the previous 14 days has travelled internationally to countries with widespread, sustained community transmission. For updated information on affected countries, visit: https://www.cdc.gov/coronavirus/2019-nCoV/travelers/index.html
If your state licensing agency or other health authority has more restrictive requirements please follow the state or locality requirements. However, please report those restrictions to your ORR Project Officer as soon as possible.
Your first master census temperature report must be created today. If you anticipate any problems please immediately contact your ORR Project Officer. Remember you are only required to submit the UAC Temperature Tracker if a UAC in your care has a fever of 100° or above.

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Case 2:18-cv-05741-DMG-PLA Document 230-5 Filed 03/27/20 Page 3 of 3 Page ID #:5529
Thank you for your cooperation during this rapidly evolving time. Your assistance is vital to containing COVID-19 and protecting children, staff, and their families.

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Case 2:18-cv-05741-DMG-PLA Document 230-6 Filed 03/27/20 Page 1 of 5 Page ID #:5530

Exhibit V
ORR March 20 Field Guidance

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Case 2:18-cv-05741-DMG-PLA Document 230-6 Filed 03/27/20 Page 2 of 5 Page ID #:5531

Frequently Asked Questions for Office of Refugee Resettlement (ORR) Programs Related to COVID-19
Updated: March 20, 2020
Personnel:
Q1: May grant funds be used to pay for unscheduled leave taken by grantee care provider (or subrecipient) staff? A1: Yes, if the grantee’s (or sub-recipient’s) written internal policies and procedures allow for such
unscheduled leave, when paid from all funding sources (both Federal and non-Federal). If a formal policy is not in place, then the grantee should adopt one as soon as possible. The policy(ies) should be in compliance generally with 45 CFR Part 75, but more specifically with 45 CFR 75.402-404 (reasonable and allowable costs); 45 CFR 75.432 Compensation – fringe benefits, and 45 CFR 75.437 Employee health and welfare costs.
Q2: Should care provider staff be asked to use their personal leave if they have contracted or been exposed to COVID-19? A2: If the employee reasonably believes they have contracted or been exposed to COVID-19, ORR
strongly recommends that they should NOT be required to use personal leave, but may qualify under your policies for sick or other leave and continue to be paid as normal, consistent with those policies, in order to avoid exposure to the virus. Leave policies should be in compliance generally with 45 CFR Part 75, but more specifically with 45 CFR 75.402-404 (reasonable and allowable costs); 45 CFR 75.432 Compensation – fringe benefits, and 45 CFR 75.437 Employee health and welfare costs.
Q3: Will care providers pay the employee if their illness is COVID-19 associated (diagnosed or exposed)? A3: Yes, if the individual tests positive or remains quarantined due to COVID-19 exposure. If they are
tested and are sick from another illness, appropriate sick or other leave must be used. Again, leave policies should be in compliance generally with 45 CFR Part 75, but more specifically with 45 CFR 75.402-404 (reasonable and allowable costs); 45 CFR 75.432 Compensation – fringe benefits, and 45 CFR 75.437 Employee health and welfare costs.
Q4: How long may grantee staff be paid if quarantined? A4: Currently, ORR recommends paying quarantined staff for the CDC recommendations or for as long
as a doctor recommends.
Q5: May care providers pay their staff overtime during this period? A5: Yes, the care provider must contact their ORR Project Officer and Grants Management Specialist if
they need to move funds in order to compensate staff for overtime.

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Case 2:18-cv-05741-DMG-PLA Document 230-6 Filed 03/27/20 Page 3 of 5 Page ID #:5532

Unification:
Q6: Are care providers able to fly unaccompanied alien children (UAC) for reunification, or should ground transportation be utilized?
A6: At this time, care providers may still use air travel for the purpose of unifying a child with their sponsor. Before traveling, please assess the safety of the locations the minors will be traveling to. If there is a known exposure risk or a community lockdown, please work with your Federal Field Specialist (FFS) to postpone release until it is safe for the minor to travel1. At the time of this writing, the White House and the Centers for Disease Control and Prevention (CDC) have not issued domestic travel restrictions within the United States. Please review the latest recommendations and guidance on the CDC’s website: https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html.
Q7: May care providers reduce the number of staff who escort UACs who are unifying with their sponsors?
A7: Yes, programs may reduce the number of staff who escort children on flights, as long as the ratio is reasonable. Per ORR Policy Guide 3.3.14, to the greatest extent possible under the circumstances, when transporting UAC, care providers will assign transport staff of the same gender as the child or youth. Additionally, the CDC is not recommending individuals to self-quarantine unless exposed directly to COVID-19 per the following guidance: https://www.cdc.gov/coronavirus/2019ncov/travelers/index.html. Care providers may also use the CDC’s risk assessment guidance as a resource when arranging travel for UACs who are unifying with their sponsors: https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html and https://www.cdc.gov/coronavirus/2019-ncov/community/index.html
Q8: Is there any flexibility on the requirement to physically transfer custody of a UAC to a sponsor within 3 days of an approved release?
A8: To the greatest extent possible, care providers should secure transportation for the child within 3 days after ORR approves release. However, if care providers are having issues securing transportation or finding an escort for the reunification, care providers must make a concerted effort to release the child as close to the required time frames as possible, and also note the reasons for the delay in relevant documentation. Alternatively, sponsors can also make arrangements to pick a UAC up directly from the care provider. Please assess the safety of the locations the minor will be traveling to before releasing the minor to their sponsor. If there is a known exposure risk or a community lockdown, please work with your FFS to postpone release until it is safe for the minor to travel.
Services:
Q9: Will care providers still be held to the mandated timeline for certain services (i.e., an initial medical exam within 48 hours), or will there be flexibility given the strain of resources in some communities and programs during this crisis?
A9: To the greatest extent possible, care providers should meet service requirements within ORR’s required time frames. However, if constraints on resources and staffing prevent care providers from meeting the timelines for all services, care providers must make a concerted effort to meet the
1 As outlined in 45 CFR Part 410.301(a) “ORR releases a UAC to an approved sponsor without unnecessary delay, but may continue to retain custody of a UAC if ORR determines that continued custody is necessary to ensure the UAC's safety or the safety of others, or that continued custody is required to secure the UAC's timely appearance before DHS or the immigration courts.”

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Case 2:18-cv-05741-DMG-PLA Document 230-6 Filed 03/27/20 Page 4 of 5 Page ID #:5533
requirements as close to the required time frames as possible, and also note the reasons for the delay in relevant documentation.
Q10: Can Transitional Foster Care programs provide gift cards to compensate Foster Parents for the cost of the meals and snacks that children would normally eat during school hours?
A10: It is ORR’s responsibility to bear the cost of care for UAC. Keeping this in mind, care providers should renegotiate the rate at which they pay the foster parents to include the additional meals. Because the duration of these events is unknown at this time, an alternative approach is for care providers to set up a system by which foster parents can request reimbursement from the care provider for the additional meals, and the care provider can subsequently request reimbursement from ORR for these amounts. In addition, for awareness, USDA is helping school districts across the country set up meal distribution sites where children can pick up meals and take them home. Grantees may encourage foster parents to call their local school district office or social services agency to find out about options available in their area.
Q11: If necessary, can care providers provide remote case management and clinical services through telephone or video conferencing?
A11: Yes, case managers and clinicians may provide remote case management and clinical services, as long as the care provider has that functionality in place. If a minor is in a crisis/emergency situation, the program is expected to provide face to face intervention.
Q12: Can Legal Service Providers (LSPs) provide legal services through telephone or video conferencing? A12: Yes, LSPs may use telephone or video conferencing to provide services to UACs. Care providers
should work in coordination with the LSPs to assure the continuity of legal services as a mission critical requirement to UAC.
Q13: Can care providers still take UACs on community outings at this time? A13: At this time, care providers should generally avoid taking children to public spaces and should
review current guidance and recommendations of “social distancing” by the White House, CDC, and state/local governments. Note: Providers must ensure minors are still going outside for exercise and fresh air as long as shelters are able to maintain social distancing. See CDC’s recommended guidance: https://www.cdc.gov/coronavirus/2019-ncov/community/index.html and the White House’s recommended guidance: https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20 coronavirus-guidance 8.5x11 315PM.pdf
Q14: How long can UACs in TFC and LTFC programs remain out of school? If programs are not prepared for virtual learning are any budget modifications allowed to allow programs to obtain the necessary equipment?
A14: Care providers should follow the educational guidance of their local communities (following recommendations provided by state/local governments, or the local board of education). At this time, if care providers require modification of their budgets to add provisions for interim educational services, they must contact their ORR Project Officer as soon as possible.

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Case 2:18-cv-05741-DMG-PLA Document 230-6 Filed 03/27/20 Page 5 of 5 Page ID #:5534
Medical: Q15: Will assistance be available for maintaining inventory of Personal Protective Equipment (PPE), if
necessary? A15: Programs should use all commercial resources available to them to maintain an appropriate
inventory of PPE, while keeping in mind the nationwide shortage for these materials. If all other efforts have been exhausted, programs should contact the following email, UAC COVID19@acf.hhs.gov and the response team will attempt to assist with PPE shortfalls.
Q16: If a UAC is hospitalized, should the program still visit the child in the hospital? A16: Staff should follow the hospital’s visitation protocols and their state licensing requirements. If the
hospital prohibits visitors, the care provider should be checking in with the UAC by telephone every day and connecting with supervising medical staff on a regular basis.
Staffing and Supervision: Q17: If many staff are absent due to illness, quarantine, or issues with their own childcare, to the point
where they do not meet ORR minimum staffing ratios, what should the program do? A17: If a care provider is at risk of not maintaining required staff supervision ratios, please contact your
assigned ORR Project Officer immediately to discuss next steps.
Q18: To ease any staffing or supervision shortfalls, if a care provider has multiple programs in one concentrated area, can they consolidate children in one shelter, as long as it meets licensing requirements?
A18: Yes, as long as the care provider still meets state licensing requirements. The care provider should contact their ORR Project Officer, FFS, and the Intakes team to discuss.
Q19: Will ORR consider paying for grantee employees’ personal child care while they are working? A19: No, ORR cannot compensate grantee employees for their personal child care expenses.

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Case 2:18-cv-05741-DMG-PLA Document 230-7 Filed 03/27/20 Page 1 of 4 Page ID #:5535

Exhibit W
ORR March 20 Stop Placement

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Case 2:18-cv-05741-DMG-PLA

From:

@Vera.org>

Sent: Friday, March 20, 2020 3:27 PM

To:

Document 230-7 #:5536

Filed 03/27/20

Page 2 of 4

Page ID

Subject: RE: COVID‐19 Stop Placements
Dear Thank you for sharing. We will share with our subcontractors. On the call we were told there was a stop placement for Washington, New York and California. I see a number of other sites outside of those states on the list below but I assume that is a safeguard given the social distancing best practice and the conditions at the program (not because of suspected infection at those sites). Is that correct? We see Canaan New York on the list. Is that operational? We had not yet been informed they were up and running. Thank you,

From:

@acf.hhs.gov>

Sent: Friday, March 20, 2020 11:08 AM

To:

@Vera.org>;

@Vera.org>;

Cc:

Subject: COVID‐19 Stop Placements

Vera.org>; @vera.org>

@Vera.org>;

* PLEASE NOTE: EXTERNAL EMAIL *
Good Afternoon All: Hope all is well. Please see the below stop placements in place as discussed in the earlier email correspondence related to COVID‐19:
Regards,

2

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Case 2:18-cv-05741-DMG-PLA Document 230-7 Filed 03/27/20 Page 3 of 4 Page ID #:5537

3

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050

Case 2:18-cv-05741-DMG-PLA Document 230-7 Filed 03/27/20 Page 4 of 4 Page ID #:5538
Division of Unaccompanied Children Operations Office of Refugee Resettlement Mary E. Switzer Building, 5th Floor 330 C Street SW, Washington, D.C. 20201 (
acf.hhs.gov

4

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051

Case 2:18-cv-05741-DMG-PLA Document 230-8 Filed 03/27/20 Page 1 of 3 Page ID #:5539

Exhibit X
ORR March 23 Field Guidance

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Case 2:18-cv-05741-DMG-PLA Document 230-8 Filed 03/27/20 Page 2 of 3 Page ID #:5540

March 23, 2020
Dear ORR Care Provider:
The Office of Refugee Resettlement (ORR) is issuing additional field guidance to all programs to take proactive measures and limit the spread of COVID-19. Effective immediately and until further notice ORR requires care providers to:
• Take two (2) temperature checks of each child in their care daily (once in the morning and once in the evening) using a no-touch thermometer, or following appropriate thermometer disinfection and infection control procedures between each use until such time as no-touch thermometers can be acquired. ORR authorizes the use of grant funds to purchase no-touch thermometers. The care provider may use the thermometer(s) they currently have on hand, following appropriate thermometer disinfection and infection control procedures between each use, until no-touch thermometers are procured. ORR providers are required to undertake all reasonable efforts to acquire a sufficient number of no-touch thermometers for their population as expeditiously as possible.
Care providers must document children’s temperatures in a master census temperature report to be updated twice daily. ORR recommends you maintain a spreadsheet or hard copy document with UAC’s name, A# and dates which captures the child’s temperature twice daily.
Separately care providers report fevers to ORR Intakes at Orrducs Intakes@acf.hhs.gov, only if a child has a temperature of 100° or above, and daily there after until no child(ren) have a temperature of 100° or above using the attached UAC Temperature Tracker spreadsheet. Care providers will password protect the UAC Temperature Tracker using the standard password when submitting the spreadsheet to ORR Intakes.
If a child has a temperature above 100°, please also follow guidelines provided in the March 13th COVID-19 Interim Guidance for ORR Programs by submitting the “INTERIM COVID-10 Acute Respiratory Disease Transfer and Discharge Tracker”.
• Require any staff member or visitor to the care provide facility to undergo mandatory temperature checks prior to entering the facility. Use no-touch thermometers for staff and visitor temperature checks. ORR authorizes the use of grant funds to purchase no-touch thermometers. The care provider may use the thermometer(s) they currently have on hand until no-touch thermometers are procured.
• Further, ORR care providers must prohibit entry of any individual (except UAC in the process of admission) who meet any of the following criteria:

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Case 2:18-cv-05741-DMG-PLA Document 230-8 Filed 03/27/20 Page 3 of 3 Page ID #:5541
o A fever of above 100° or above; o Signs of symptoms of an acute respiratory infection, such as a cough, shortness of
breath; o In the previous 14 days has had contact with someone with a confirmed diagnosis of
COVID-19; o is under investigation for COVID-19; or o In the previous 14 days has travelled internationally to countries with widespread,
sustained community transmission. For updated information on affected countries, visit: https://www.cdc.gov/coronavirus/2019-nCoV/travelers/index.html. If your state licensing agency or other health authority has more restrictive requirements please follow the state or locality requirements. However, please report those restrictions to your ORR Project Officer as soon as possible. Your first master census temperature report must be created today. If you anticipate any problems please immediately contact your ORR Project Officer. Remember you are only required to submit the Tracker if a UAC in your care has a fever of 100° or above; Thank you for your cooperation during this rapidly evolving time. Your assistance is vital to containing COVID-19 and protecting children, staff, and their families.

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054

Case 2:18-cv-05741-DMG-PLA Document 230-9 Filed 03/27/20 Page 1 of 12 Page ID #:5542

Exhibit Y
NY Guidance

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055

Case 2:18-cv-05741-DMG-PLA Document 230-9 Filed 03/27/20 Page 2 of 12 Page ID #:5543

ANDREW M. CUOMO Governor

SHEILA J. POOLE Commissioner

Dear Provider:
The Governor’s most recent Executive Order, EO 202.7, as well as the associated Guidance issued by the Empire State Development Corporation, sets forth in-person work restrictions, effective as of March 21, 2020 at 8 pm, and until further notice.
These restrictions require all businesses and nonprofit entities to utilize telecommuting and work from home procedures to the extent possible.
Please remember that an essential business is exempt from the restrictions mentioned above.
Essential business includes congregate care facilities operated, licensed or certified by the Office of Children and Family Services (OCFS) including programs for youth in foster care and detention, run away and homeless youth programs, domestic violence programs. child care programs and adult care facilities. The order also identified the following entities as essential businesses: food banks; human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support. All these entities are exempt from the restrictions mentioned above.
We are writing to confirm that your agency, which provide services to youth and/or adults in programs as described above and are operated, licensed or certified by OCFS, qualify for this exemption and should remain in operation to the extent necessary to provide those services. This includes your administrative offices and those employees necessary to support the essential functions of your agency’s mission.
Please remember to continue to maintain good hygiene and precautionary measures, as COVID-19 can be spread from infected individuals to others through close personal contact. Providers must encourage good hygiene and social distancing within the workplace and must keep staff home if they are sick.
Providers should regularly check the NYS DOH and OCFS websites for the latest guidance on COVID-19 as the outbreak evolves. https://www.health.ny.gov/diseases/communicable/coronavirus/providers.htm
https://ocfs.ny.gov/main/news/COVID-19/

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Case 2:18-cv-05741-DMG-PLA Document 230-9 Filed 03/27/20 Page 3 of 12 Page ID #:5544

ANDREW M. CUOMO Governor

SHEILA J. POOLE Commissioner

Guidance for NYS Office of Children and Family Services Programs (funded, operated, licensed, regulated, or designated providers)
Department of Health 24/7 Hotline: 1-888-364-3065

Dear Staff/Providers:
The following guidance is based on the most current Centers for Disease Control and Prevention (CDC) and NYS Department of Health (DOH) recommendations for prevention of the spread the novel coronavirus of 2019 disease (COVID-19) and the management of Persons Under Investigation (PUI). Specific additional guidance for residential programs is documented below. Please review this information, including the links below, with your program’s leadership and staff and make any necessary adjustments to your program policies and protocols. This guidance is not intended to address every potential scenario that may arise as this event evolves. OCFS encourages you to also monitor your Local Health Department guidance and keep in close contact with your OCFS regional office staff who have been instructed to immediately elevate priority issues of concern.

A. Guidance for programs funded, licensed or regulated by OCFS when making home visits (including foster boarding homes oversight):
When preparing or scheduling appointments for home-based visits, be sure to ask all clients or applicable family members the following 3 questions:
1. Have you traveled to a country for which the CDC has issued a Level 2 or 3 travel designation within the last 14 days?;
2. Have you had contact with any Persons Under Investigation (PUIs) for COVID-19 within the last 14 days, OR with anyone with known COVID-19?; and
3. Do you have any symptoms of a respiratory infection (e.g., cough, sore throat, fever, or shortness of breath)?
• If the client or family members respond “Yes” to questions 1 OR 2, but “No” to question 3 (i.e., reports no symptoms of a respiratory infection) immediately consult the provider supervisor/ treatment team to assess whether there are any potentially urgent safety risks or behavioral health needs (e.g., medications, suicide or violence risk, etc.).

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o If there are urgent needs, the provider supervisor/treatment team should assess whether those needs can be safely met remotely (e.g., e-prescribing, telephone assessment, telehealth visit, etc.). If the client must be seen to meet urgent needs, including behavioral health needs, the provider supervisor/treatment team should instruct the client to remain at home and contact their medical professional immediately. Instruct the impacted client or family member to use a mask, if available, place themselves in a separate room with the door closed if possible, and get assessed by a medical professional immediately before any visitation arrangements are made. Please contact your Regional Office to discuss urgent scenarios so they can provide guidance on a case by case basis.
o If the client does not have urgent needs or those needs can be met remotely, please instruct the family/client to stay home and to contact the NYS DOH for further guidance, which may include a recommendation for a self-imposed quarantine for 14 days. The provider supervisor/caseworker supervisor/treatment team should also contact NYS DOH directly to relay the information from question 1 and 2.
• If the client or family members responds “Yes” to questions 1 OR 2, AND 3, (i.e., reports having symptoms): o Instruct the client to remain at home and contact their medical professional immediately.
o Alternatively, the client may be referred to the nearest emergency room for immediate attention.
o In all circumstances above, please instruct the client or family member to notify the receiving medical provider and transporter in advance of potential concern for COVID-19.
o Please contact your Regional Office to discuss any urgent service needs so they can provide guidance on a case by case basis.
B. Guidance for screening visitors/members of the public to OCFS facilities, residential and non-residential programs funded, licensed or regulated by OCFS:
The below protocol is applicable to any facility or program that receives visitors or members of the public as a part of its daily operations. This includes members of the public who attend in-person administrative hearings in OCFS regional offices.
• All facilities, programs and offices receiving regular in-person contact with members of the public should immediately develop policies to schedule and pre-screen over the telephone all visits by nonclient/residents-or-staff entities, including families, attorneys, case managers and social workers, using the three questions above.
o Upon screening, if a potential visitor answers “Yes” to any of the three questions above, please politely instruct them not to visit the facility, program or office until the specific scenario can be further assessed. If a member of the public is scheduled to appear before an administrative law judge for an administrative hearing, the hearing will be adjourned until further notice.

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▪ For those potential visitors who answer “Yes” to questions 1 OR 2, but “No” to question 3 (i.e., reports no symptoms of a respiratory infection), please also instruct them to contact the NYS DOH for further direction.
▪ For those potential visitors who answer “Yes” to questions 1 OR 2, AND also “Yes” to question 3, (i.e., reports having symptoms) please also instruct them to immediately contact their medical provider and Local Health Department, and to call 911 if they are experiencing serious symptoms (e.g., shortness of breath).
▪ Please also instruct the screened individual to notify the receiving medical provider and transporter in advance of potential concern for COVID-19.
• If facilities/program providers receive unscheduled visitors, either politely instruct them to leave and call to schedule a visit, or screen them appropriately before allowing entrance into the facility/program.
o If upon screening, the unscheduled visitor answers “Yes” to any of the questions above, provide them a mask, if available, place them in a separate room with the door closed if possible, and have them assessed by a program medical provider using appropriate Personal Protective Equipment (PPE) if possible. If no qualified program medical provider is available, ask that they contact their own medical professional immediately.
o Alternatively, they may be referred to the nearest emergency room for immediate attention.
o In all circumstances above, please also instruct the screened individual to notify the receiving medical provider and transporter in advance of potential concern for COVID-19.

* PLEASE NOTE – Screening for current residents at OCFS facilities or residential programs funded, licensed or regulated by OCFS (include Runaway and Homeless Youth, Domestic Violence shelters, and Residential Vision Rehabilitation Centers):
All OCFS facilities and residential facilities funded, licensed or regulated by OCFS should be certain to also screen any incoming residents using the guidance above, and should respond accordingly if a resident is experiencing symptoms and responds “Yes” to questions 1 AND 2 above. If a current or incoming resident can answer “Yes” to questions 1, 2, AND 3:
o Provide a mask for the recipient of services/resident;
o Isolate the recipient of services/resident in a private room with the door closed if possible and ensure that they are kept separate from other tenants.
o A program medical provider should then immediately assess the individual using appropriate PPE if possible, or if no qualified program medical provider is available, the person should be asked to contact their own medical professional immediately. The programs should also contact the NYS DOH (1-888-364-3065) for further recommendations including transport to their recommended medical facility if

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necessary. Please also instruct the program to notify the receiving medical provider and transporter in advance of potential concern for COVID-19.
All OCFS facilities and residential facilities funded, licensed or regulated by OCFS should continue to review their own emergency preparedness plans and assess for continued operation in case of an emergency.
o All facilities and programs should assess both their facility and workforce capacity to accommodate the potential need for an increased number of isolations rooms and the potential decrease in staffing availability.
o As a result of the above assessment, programs may need to prioritize service provision and planning.
o If the needs or the facility/program exceed current capacity or ability, please contact the relevant OCFS program lead/Regional Office for further assistance.

C. Guidance for visitors to any childcare setting, including licensors/registrars:
• When preparing to visit or inspect a childcare setting, all childcare licensors/registrars should immediately implement policies to schedule and pre-screen over the telephone all visits using the three questions above.
o If licensors/registrars receive “Yes” answer to any of the questions, they should not visit the program until the specific scenario can be further assessed. If a health and safety issue necessitated the need to visit the provider, please contact your Regional Office to discuss so they can provide guidance on a case by case basis.
o If licensors/registrars receive “Yes” to questions 1 OR 2, but “No” to question 3 (i.e., reports no symptoms of a respiratory infection), they should additionally instruct the provider to contact the NYS DOH for further direction.
o If licensors/registrars receive “Yes” answers to questions 1 or 2, AND also “Yes” to question 3, (i.e., reports having symptoms), the licensors/registrars should instruct the provider to immediately contact their medical provider and Local Health Department, and to call 911 if they are experiencing serious symptoms (e.g., shortness of breath). Please instruct the provider to notify the medical provider and transporter in advance and inform them of potential concern for COVID-19
• In the event there is a serious health and safety need that requires an unannounced visit, licensors/registrars should screen the provider before entering the program and instruct the provider as above if answering “Yes” to any questions.
• The above protocol should be used when parents or family members request to visit a childcare program, and childcare providers should review with program leadership and staff to make any necessary adjustments to program policies and protocols.

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Case 2:18-cv-05741-DMG-PLA Document 230-9 Filed 03/27/20 Page 7 of 12 Page ID #:5548
Additionally, all the above facilities/programs/providers should contact any entities that have staff regularly visiting their programs (e.g., contracted/per diem staffing agencies, pharmacy delivery organizations, itinerant provider staff, cleaning agencies, etc.) to review and approve their screening protocols. If the protocols of outside entities do not meet these standards, providers should take responsibility for screening these visitors. Finally, as a reminder, all Staff/Providers should follow the CDC’s guidelines for infection control basics including hand hygiene:
• Infection Control Basics • Hand Hygiene in Health Care Settings • Handwashing: Clean Hands Save Lives

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061

Case 2:18-cv-05741-DMG-PLA Document 230-9 Filed 03/27/20 Page 8 of 12 Page ID #:5549

ANDREW M. CUOMO Governor

SHEILA J. POOLE Commissioner

Information for Child Care Programs
In an effort to support child care programs and be responsive to the needs of the community during this time, Governor Cuomo has granted OCFS the authority to temporarily waive selective regulatory requirements. The Division of Child Care Services encourages programs who are either experiencing hardship due to COVID-19 or are in a position to assist those experiencing hardship due to COVID-19 to submit a waiver request to your licensor/registrar. Each request will be evaluated on a case-by-case basis and approval will be time limited. For example, in light of school closings, a current FDC who is at capacity (8) might be willing and able to accept two additional school-aged children for the 14 days their school is closed. The program must submit a waiver request for consideration by OCFS which indicates how the health and safety of the children in the program will be maintained. OCFS is committed to reviewing these as expediently as possible. If approval is granted, the waiver would be limited to the duration of the school closure. This program could submit another waiver request in the event the school closure is extended, or other if the program has a new circumstance requiring a waiver. This is just one example of a potential waiver request. Child care programs are encouraged to consider what scenarios (if any) are applicable to them specifically and apply as necessary throughout the duration of this health crisis. OCFS encourages innovative and entrepreneurial thinking to work together to get through this current crisis.
Below are several Frequently Asked Questions compiled to provide guidance to the child care community. OCFS will continue to add to this list as applicable. Please reach out to your regulator with questions.

Updated 3/23/2020

Frequently Asked Questions for Child Care Programs

Q. Are child care programs being ordered to close?
A. Child care programs are NOT being ordered to close. In fact, quite the opposite is true. Governor Cuomo and his administration consider child care to be an essential function critical to enabling parents to go to work.
Q. Who can order an child care program to close due to COVID-19?
A. In certain circumstances, local authorities, mainly local Departments of Health, have the authority to direct programs to close under quarantine or other emergency orders. In addition, child care programs are business entities and can voluntarily close the program.

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Q. Have the requirements regarding staff/child ratios been lifted?
A. OCFS has been granted the authority to waive select regulatory requirements in order to meet the need for child care services. Staff/child ratio is one such requirement. You may contact your regulator and submit a waiver request. For the duration of this emergency, there may be flexibility regarding certain regulatory requirements.
Q. Have the regulations regarding comprehensive background clearance checks been lifted?
A. OCFS has been granted the authority to waive select regulatory requirements in order to meet the need for child care services. Comprehensive background clearance checks are one such requirement. You may contact your regulator and submit a waiver request. For the duration of this emergency, there may be flexibility regarding certain regulatory requirements.
Q. How do child care programs maintain a perimeter of 6 feet while caring for them?
A. Adults must be in close proximity to young children in order to provide proper care. It is important to take universal precautions. Ensure handwashing strategies are being followed including washing with soap and water for at least 20 seconds. When soap and water are not available individual wipes may be used in combination with hand sanitizer. Also, be sure to perform routine substantial cleaning of the childcare program.
Q. Are child care programs required to maintain a group size of 10 or less?
A. The Centers for Disease Control, in its guidance on events and mass gatherings recommends group size to ten or fewer and therefore we ask providers to reconfigure space to limit overall density of rooms to ten or fewer children. See https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/index.html. Your licensed/registered capacity, however, remains in effect unless you’ve been approved for a waiver by OCFS as there may be ways for you to serve a greater number of children while continuing to prioritize their health and safety and that of your employees.
Q. Why haven’t child care programs been closed?
A. Child care is considered an essential service. In a time of crisis, other essential professionals must be able to go to work and have safe and suitable child care available to their children. If you have openings in your program, please use those openings to serve the children of employees who are unable to work from home and must continue to report to their work location. Please reach out to your local Child Care Resource and Referral agency and make them aware of any slots you have available.
Q. How do programs limit access to the program and try to reduce exposure to COVID-19?
A. Programs are encouraged to utilize these screening questions:
1. Within the last 14 days, have you traveled to a country that the federal Centers for Disease Control and Prevention should be avoided for nonessential travel or where travelers should practice enhanced precautions? (China, Iran, Italy, South Korea, Japan)
2. Have you had contact with any person with known COVID-19 or person under investigation for COVID-19?
3. Do you have any symptoms of a respiratory infection (e.g., cough, sore throat, fever, shortness of breath)?

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4. Are you or anyone in your home in active quarantine status?
If an individual responds “yes” to any of the above, do not allow that individual to enter the program. Where staffing allows, programs can implement strategies to reduce traffic in the program including meeting children at the door.
3/16/2020
Q. Is OCFS going to close my child care program because of COVID-19?
A. No. NYS Department of Health and local health departments will instruct a child care programs regarding how to respond to COVID-19. Q. What if my child care program is located in New York City?
A. For child care programs located in NYC, including those regulated by OCFS, additional information can be obtained by going to the NYC Department of Health and Mental Hygiene website at https://www1.nyc.gov/site/doh/index.page. The New York City Health Department will let you know if you are required to close your program. For information about COVID-19 in New York City, including when to call your health care provider if you feel sick, visit: http://nyc.gov/health. Q. If my neighborhood school closes, is my child care program required to close?
A. No, unless the program is told to by a public health official, or if it is located in the school facility.
Q. What if my program is located in the containment bubble? What if there are new containment areas?
A. If a program is in the containment area and is directed to close, you will be contacted by local DOH. At this time, group family and family day care homes are not considered places of mass gatherings. Day Care Centers and School Aged Child Care may or may not be considered places of mass gathering as it is based on their capacity. Your local department of health will direct you. Q. What if I am directed to close, or choose to close?
A. In either case, you must inform your regulator.
Q. Families are contacting me who are needing child care, especially for school-aged children, but my program is full.
A. If you want to take the additional children, and believe your program can handle the additional children, contact your regulator and submit a waiver request. During the duration of this emergency, there may be flexibility regarding certain regulatory requirements. Q. What if I want to expand my license/registration to serve more children temporarily?
A. Contact your regulator and submit a waiver request. During the duration of this emergency, there may be flexibility regarding certain regulatory requirements.

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Case 2:18-cv-05741-DMG-PLA Document 230-9 Filed 03/27/20 Page 11 of 12 Page ID #:5552
Q. What If I want to bring on new assistant/staff during emergency?
A. Contact your regulator and submit a waiver request. During the duration of this emergency, there may be flexibility regarding certain regulatory requirements.
Q. What if hospitals, schools, etc. contact me about taking on additional children?
A. Contact your regulator and submit a waiver request. During the duration of this emergency, there may be flexibility regarding certain regulatory requirements.
Q. What if my program has too many staff absent to continue care?
A. Contact your regulator. There may be possibilities to bring substitutes on board quickly and explore other possibilities in collaboration with other local programs.
Q. What if my program is closed for a period of time? How will I get by?
A. We are receiving ongoing guidance from the federal Office of Child Care and considerations are being made to support programs.
Q. What if a program staff /volunteer is mandated to be quarantined?
A. If the person tests positive for the virus, the program will be contacted by the local Department of Health (DOH) and will be directed on what steps are needed. It is likely the program will be directed to close and selfquarantine the remaining staff and children.
Q. What if a staff person at a child care program is precautionarily quarantined?
A. If a staff member has been exposed to the virus and has self-quarantined but has not tested positive, the individual must not report to work during the quarantine period. The center may continue to operate unless notified otherwise by local DOH.
Q. What if a parent of a child is quarantined?
A. In the event a parent of a child in your program must be quarantined, advise the parent they cannot enter the child care program for any reason, including picking up their child. If the parent is exhibiting signs of illness or has been tested and is positive for the virus, they must utilize an emergency contact authorized by the parent to come pick up the child. If the parent is being quarantined as a precautionary measure, without symptoms or a positive test, child care staff should walk out or deliver the child to the parent outside the child care building. The child must not return to the child care program for the duration of the quarantine.
Q. What if a household member of a home-based provider is quarantined?
A. The program must not operate and must contact local DOH.
Q. What if a child is quarantined?
A. Children who have been quarantined either through exposure to the virus or a positive test must not attend programs for the duration of the quarantine period. If a child has been diagnosed as positive and has attended the program within the past week, the program must contact local DOH.

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Q. What if a family seeks child care for school-aged children whose school has closed? A. When bringing on additional children, for school-aged children, please confirm what school the child attends. OCFS will distribute lists of schools that have been mandatorily closed for quarantine to the regional offices. No children with any symptoms of illness, or children from schools under mandatory quarantine should attend programs. Q. My program serves families who receive child care subsidy, what will happen when children are absent, or my program is forced to close? A. We are receiving ongoing guidance from the federal Office of Child Care and considerations are being made to support programs. This includes allowing counties to pay for absence and closure days.

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Case 2:18-cv-05741-DMG-PLA Document 230-10 Filed 03/27/20 Page 1 of 3 Page ID #:5554

Exhibit Z
CA Guidance

Defendants’ Opposition to TRO - Exhibits

067

Case 2:18-cv-05741-DMG-PLA Document 230-10 Filed 03/27/20 Page 2 of 3 Page ID #:5555

March 4, 2020

PIN 20-02-CRP

TO:

ALL LICENSED CHILDREN’S RESIDENTIAL FACILITIES

FROM:

Original signed by Pamela Dickfoss PAMELA DICKFOSS Deputy Director Community Care Licensing Division

SUBJECT: CORONAVIRUS INFORMATION AND GUIDELINES FOR CHILDREN’S RESIDENTIAL FACILITIES

Provider Information Notice (PIN) Summary
PIN 20-02-CRP provides information and guidance from the California Department of Public Health (CDPH) and Center for Disease Control and Prevention (CDC), for all children’s residential facilities regarding the Coronavirus Disease 2019 (COVID-19).

The California Department of Public Health (CDPH), Center for Disease Control (CDC), and World Health Organization (WHO) have released information on the recent identification of the COVID-19. The coronavirus itself is a large family of viruses that, while not new, have different strains. The COVID-19 strain is a newly identified strain that causes respiratory illness similar to influenza. The purpose of this PIN is to provide you with information relevant to residential settings.

To stop transmission of this virus, recommendations include to: • avoid close contact with people who are sick, • avoid touching your eyes, nose, and mouth, • stay home when you are sick, • cover your cough or sneeze with a tissue, then throw the tissue in the trash,

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• clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipes.
Should you have reason to suspect an outbreak of COVID-19 in your facility, please contact your local health department immediately. Licensees are encouraged to have a plan in place, and ample supplies, to respond to a COVID-19 outbreak in their area. Follow plans for sheltering in place in circumstances where you may need to quarantine. Children’s Residential Program licensees are also required to report outbreaks to your Children’s Residential Regional Office within the next working day during its normal business hours along with a written report within seven days of the occurrence per Title 22 of the California Code of Regulations, 80061(a)(H), 86561(a)(5), and 89361 (a)(5). There are several resources available regarding COVID-19:
• General guidance on the COVID-19 can be found on the CDPH web page • Interim guidance for preventing the spread of COVID-19 in homes and
residential communities can be found on the CDC web page. • More information and new updates regarding COVID-19 can be found on the
WHO web page. If you have any questions, please contact your local Children’s Residential Regional Office.

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Case 2:18-cv-05741-DMG-PLA Document 230-11 Filed 03/27/20 Page 1 of 7 Page ID #:5557

Exhibit AA
Cohn Declaration

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070

Case 2:18-cv-05741-DMG-PLA Document 230-11 Filed 03/27/20 Page 2 of 7 Page ID #:5558

1

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

2

3
LUCAS R., et al.,
4
Plaintiffs,
5
v.
6
ALEX AZAR, Secretary of U.S. Dep’t of Health
7 and Human Services, et al.,

Case No.: 2:18-CV-5741 DMG (PLAx) District Judge Dolly M. Gee

8

Defendants.

9

10
DECLARATION OF DR. AMANDA COHN, CHIEF MEDICAL OFFICER, NATIONAL

11

CENTER FOR IMMUNIZATIONS AND RESPIRATORY DISEASES,

CENTERS FOR DISEASE CONTROL AND PREVENTION
12

13

I, Amanda Cohn, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that my testimony

below is true and correct:
14
1. I am currently on detail serving as the Acting Director, National Center for Birth Defects
15 and Developmental Disabilities. My permanent position is the Chief Medical Officer, National Center for

16 Immunizations and Respiratory Diseases (NCIRD). I also serve as the Executive Secretary, Advisory

17 Committee on Immunization Practices (ACIP), which sets U.S. immunization policy. Since January 3,

18 2020, I have served as a Deputy Incident Manager for the CDC COVID-19 response, which became a full

19 Emergency Operations Activation the week of January 19, 2020.

20

2. I have held the position of Chief Medical Officer, NCIRD since early 2019. Prior to 2019,

I was a Senior Advisor for Vaccines and Executive Secretary, ACIP, and served as the Deputy Director for

21
Immunization Services Division, NCIRD. I have been a medical officer focused on vaccine-preventable

22 diseases and respiratory diseases at CDC since 2004.

23

3. I received my medical degree from Emory School of Medicine in 2001. From 2001-2004,

24 I completed an internship and residency in Pediatrics at Boston Children’s Hospital and Boston Medical
25 Center. From 2004-2006, I was an Epidemic Intelligence Service Officer at CDC, where I received 26 specialized training in epidemiology, outbreak control, and vaccine-preventable diseases.
4. In my current role, I am responsible for the Influenza Coordination Unit and Vaccine Policy
27
in NCIRD. In addition to my role as the Executive Secretary, ACIP, I am an internal CDC subject matter
28 resource for cross-cutting immunization issues, including immunization in shelter settings. Additionally,

1 30

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1 I have led and overseen planning and preparedness for pandemic influenza and other respiratory disease
2 threats. I have been the NCIRD lead for border health issues, including supporting government agencies
in prevention and control of vaccine-preventable diseases among staff and persons in custody of the U.S.
3
government. As the Deputy Incident Manager of the CDC COVID-19 response, I am responsible for
4 guidance related to healthcare settings, worker safety, community mitigation, and at-risk populations. I 5 have also provided oversight on movement and monitoring guidance for persons exposed to COVID-19,
6 as well as the guidance for mass gatherings.

7

5. In the course of performing my job duties, I have reviewed and am familiar with CDC’s

8 guidance regarding COVID-19, including the CDC guidance applicable to various congregate settings 9 including institutes of higher education, detention facilities, nursing homes, and homeless shelters, all of
which is available on CDC’s website.
10
6. In addition, in the course of performing my job duties, I have consulted with the Office of
11 Refugee Resettlement (“ORR”) on multiple clinical issues over the years. As a result of those
12 consultations, I have general familiarity with the structure and operations of ORR, the population of

13 unaccompanied alien children (“UAC”) in ORR care, and the ORR network of grantee care provider

14 facilities.

15

7. In 2014, I was the Vaccines Task Force lead for the CDC’s effort to support ORR’s response

to the influx of UAC at the Southwestern Border. I was a co-author on a report “Multistate Outbreak of
16
Respiratory Infections Among Unaccompanied Children, June 2014-July 2014” published in the journal

17 Clinical Infectious Diseases. I have provided technical comments on many ORR guidance documents over

18 the years and consulted with ORR on multiple issues around immunization, vaccine-preventable disease

19 outbreaks, and influenza prevention and control.

20

8. More recently, I reviewed ORR’s guidance to care provider facilities on COVID-19 to

21 confirm that it aligned with CDC’s guidelines and recommendations, and the best practices for preventing
and controlling the spread of COVID-19 within residential facilities. This includes guidance related to
22
symptom and temperature monitoring of staff and children, cleaning and hygiene guidance, and ensuring
23 the ability to isolate ill UAC and quarantine potentially exposed UAC. As part of my review, I conferred

24 with ORR’s Director of the Division of Health for Unaccompanied Children (“DHUC”), Dr. Michael

25 Bartholomew, on how to best ensure the health and safety of UAC and staff. Over the last two weeks, I

26 have received and responded to multiple requests from ORR for consultation to ensure their guidance is

27 consistent with the most up to date and rapidly evolving CDC guidance.

28

9. My testimony in this declaration is based upon my personal knowledge; information about

ORR’s response to COVID-19 that I received in emails from and phone calls with the relevant ORR

2 30

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1 personnel in the regular course of performing my job duties; and CDC guidance documents regarding

2 COVID-19, which I obtained from the CDC’s official website and reviewed in connection with the

performance of my job duties. In preparing this declaration, I also reviewed the declaration of ORR Deputy
3
Director Jallyn Sualog, and the memorandum of law and declarations submitted by the Plaintiffs in support
4 of their request for a temporary restraining order in the Lucas R. case.

5

10. I am testifying in this declaration to the best of my knowledge, and understand that this

6 declaration is for use in the Lucas R. case.

7

Background Regarding COVID-19

8

11. COVID-19 is a novel coronavirus that originally caused an outbreak of respiratory illness

9 in Wuhan, China. COVID-19 is spread primarily by person-to-person contact through droplets produced
when an infected person coughs or sneezes. COVID-19 may also spread through contact with
10
contaminated surfaces or objects, and there is emerging evidence that there may be asymptomatic or pre-
11 symptomatic transmission.

12

12. Since the initial outbreak in Wuhan, China, COVID-19 has spread across the globe. On

13 January 30, 2020, the Director-General of the World Health Organization declared that COVID-19

14 constitutes a Public Health Emergency of International Concern. On March 11, 2020, the World Health
15 Organization classified COVID-19 as a pandemic.
13. COVID-19 now presents a significant public health risk in the United States. On January
16
31, 2020, the Secretary of HHS declared that a public health emergency exists under section 319 of the
17 Public Health Service Act. On March 13, 2020, the President issued a Proclamation on Declaring a
18 National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak. As of March 16,

19 2020, all 50 states and several local and territorial jurisdictions declared states of emergency.

20

14. There are currently confirmed COVID-19 infections in every state and the number of

21 confirmed infections is increasing on a daily basis. Globally and in the United States, the groups at risk

for severe disease, and a majority of the morbidity and mortality, is older adults and persons with multiple
22
co-morbidities.

23

15. CDC believes that there is currently community-based transmission of COVID-19 ongoing

24 in many communities across the United States. Several cities and states have widespread transmission

25 where the healthcare systems and public health are overwhelmed.

26

CDC Guidances to the Public and Institutions

27

16. To protect the public health, CDC has issued guidance to the general public advising

28 individuals to limit non-essential travel and social contacts, and to practice social-distancing when outside
their homes (i.e., maintain a distance of at least six feet from others while in public). Essentially, this

3 30

Defendants’ Opposition to TRO - Exhibits

073

Case 2:18-cv-05741-DMG-PLA Document 230-11 Filed 03/27/20 Page 5 of 7 Page ID #:5561

1 guidance encourages all Americans to practice the shelter-in-place strategy now mandated in certain states.
2 CDC, however, does not recommend that individuals within the same domicile, or living unit, attempt to
practice social distancing unless there is a known exposure to COVID-19.
3
17. CDC’s guidance to the general public related to limiting the size of gatherings is intended
4 to complement, not supersede, the more detailed guidance intended for specific congregate settings such 5 as institutions of higher education, nursing homes, prisons, and homeless shelters. In all of these guidance
6 documents related to congregate living settings, CDC recommends institutions implement practices

7 tailored to their particular circumstances.

8

18. In general, the various CDC guidance documents for specific congregate settings adopt a

9 two-pronged approach of reducing the potential for a case to occur in a facility (prevention) and limiting
the spread of cases in a facility if a case occurs (containment). Prevention refers to precautions facilities
10
can take to prevent individuals infected with, or possibly exposed to COVID-19, from entering in the first
11 place—thus, reducing the risk of exposure to those inside. Effective prevention measures for congregate

12 settings include screening visitors for COVID-19 risk factors, such as travel to a heavily infected area,

13 contact with a confirmed case of COVID-19, or exhibiting symptoms of the disease (i.e., fever, cough,

14 shortness of breath). Prevention also entails the adoption of rigorous hygiene practices within facilities,
15 including more frequent cleaning, particularly of high-traffic surfaces and shared spaces.
19. Containment focuses on limiting spread from any potential infections that may emerge
16
within a facility, by regularly monitoring the population within the facility for signs of COVID-19
17 infection. In the event any individual exhibits possible symptoms of COVID-19 infection, the individual
18 is to be immediately isolated and tested. In addition, any contacts that individual may have had with others

19 should be traced, and those individuals should be monitored, and possibly isolated depending on the nature

20 of the contact. Like any contagious disease, the risk of acquiring COVID-19 from contact with a confirmed
21 case depends on the nature and extent of the contact.
20. ORR’s current COVID-19 procedures are consistent with CDC guidances for congregate
22
settings; they direct grantee care-provider facilities to implement both prevention and containment
23 measures. In some respects, ORR’s current COVID-19 procedures actually exceed those set forth in the
24 CDC guidances to congregate care facilities. For example, ORR’s twice-daily temperature monitoring

25 regime goes beyond what CDC has recommended for other congregate settings. Additionally, ORR

26 facilities have preparedness plans that ensure immediate care is provided to ill children.

27

21. Further, ORR’s stop-placement orders in California, New York, and Washington are

28 consistent with CDC and other public guidance recommending that non-essential travel and public
movements be avoided, especially to areas in the U.S. with widespread transmission. For example, the

4 30

Defendants’ Opposition to TRO - Exhibits

074

Case 2:18-cv-05741-DMG-PLA Document 230-11 Filed 03/27/20 Page 6 of 7 Page ID #:5562

1 White House recently issued guidance that all persons who recently travelled to New York should be under

2 home quarantine for 14 days. These three states are currently in the acceleration phase of the epidemic;

the expectation is that in the next several days to weeks these areas will be in a deceleration phase and other
3

states may be in the acceleration phase.

4

22. My understanding is that the Plaintiffs in this case have requested the expedited release of

5 UAC in ORR custody to sponsors located throughout the United States. Moving UAC children outside of

6 custody likely increases risk of exposing UAC to COVID-19 relative to remaining in custody, given that

7 they are currently housed in well-controlled environments and may be transferred to areas where there is

8 widespread community transmission, or to homes where there may be persons who have been exposed.

9

23. In addition to the prevention and containment practices ORR has already implemented, it is

my understanding that ORR has adequate space within its facilities to isolate any UAC suspected of or
10
confirmed to be infected with COVID-19, given that the ORR network of grantee care-provider facilities

11 is currently operating at approximately 30% capacity. Moreover, the CDC’s recent order prohibiting the

12 introduction of certain aliens into the U.S. is anticipated to reduce the number of new UAC entering ORR’s

13 care. Given the amount of space within the ORR network and the relatively static nature of its current

14 population, maintaining their current living situation and not releasing UAC to communities with
15 widespread transmission is the most prudent measure to reduce the risk of infection among the current
population of UAC. Although there is a risk of cases of COVID-19 in a UAC facility among UAC or staff,
16
with all of the protective measures ORR has implemented and the current space available in facilities to
17 manage ill UAC, based on currently available information the overall risk to UAC is lower in the facilities
18 than traveling and placing children in home environments in some locations in the U.S. at this time.

19

24. Requiring UAC to travel significant distances (presumably, via plane, train, or bus) and

20 enter new living environments poses a significant risk of exposing UAC to COVID-19 both in transit, and

21 upon arrival into their sponsor’s household, where it is uncertain how vigorously the occupants have
avoided exposure to COVID-19 themselves. Given the high prevalence of COVID-19 in the general
22
community, removing UAC from their current living environments presents a serious risk of exposing them
23 to COVID-19.

24

25. Fortunately, the vast majority of individuals who become infected with COVID-19 will

25 experience only mild symptoms, and there have been very few reports of serious illness among children

26 and adolescents globally. The general advice to those with mild cases of COVID-19 is the same advice

27 that would be given to an individual with a bad cold or flu: stay at home and avoid contact with others;
28 rest; drink plenty of fluids; manage symptoms with over-the-counter-medications, and seek medical
attention if symptoms worsen.

5 30

Defendants’ Opposition to TRO - Exhibits

075

Case 2:18-cv-05741-DMG-PLA Document 230-11 Filed 03/27/20 Page 7 of 7 Page ID #:5563

1

26. The population of UAC in ORR care are not at any significantly increased risk from

2 COVID-19, and have access to strong medical care that is equal to or greater than what they would have

in the community should they need it. UAC are primarily healthy adolescents, which currently available
3
information indicates are not at an increased risk of experiencing serious or severe cases of COVID-19 that
4 would require hospitalization or mechanical respiratory support.

5

27. CDC is committed to continuing to work with ORR to ensure that its COVID-19 procedures

6 are informed by the latest CDC guidance, which in turn is shaped by the latest epidemiological information

7 available about the ongoing pandemic.

8 9 Executed on March 27, 2020.

10

11

_______________________________________

12

Amanda Cohn, MD

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 30

Defendants’ Opposition to TRO - Exhibits

076

 
 Case 2:18-cv-05741-DMG-PLA Document 238 Filed 04/02/20 Page 1 of 1 Page ID #:5638

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. CV 18-5741 DMG (PLAx)

Date April 2, 2020

Title Lucas R., et al. v. Alex Azar, et al.

Page 1 of 1

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN Deputy Clerk

NOT REPORTED Court Reporter

Attorneys Present for Plaintiff(s) None Present

Attorneys Present for Defendant(s) None Present

Proceedings: IN CHAMBERS—ORDER RE CLASS MEMBERS’ EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION [227]

On March 25, 2020, in light of the Coronavirus Disease 2019 (“COVID-19”) public health crisis, Plaintiffs filed an Ex Parte Application for a Temporary Restraining Order (“TRO”) and an Order to Show Cause (“OSC”) why a preliminary injunction should not issue, arguing that the members of the unfit custodian class should be immediately released unless Defendants can justify keeping them in ORR facilities. [Doc. # 227.] On March 27, 2020, Defendants filed their response [Doc. # 230], and the Court held a hearing on the TRO application in conjunction with the hearing on a TRO application filed in the related case of Flores v. Barr, No. 85-4544-DMG (AGRx) (C.D. Cal.). On March 28, 2020, the Court granted in part the Flores Plaintiffs’ ex parte application for a TRO (“the Flores TRO”).

Having duly considered the parties’ written submissions and oral argument in light of the applicable legal standard for mandatory injunctive relief,1 and having issued the TRO in Flores that renders the most urgent portions of Plaintiffs’ request for interim relief moot, the Court DENIES the Ex Parte Application and OSC re preliminary injunction.

IT IS SO ORDERED.

1 Plaintiffs’ “burden here is doubly demanding: Because [the class] seeks a mandatory injunction, [it] must establish that the law and facts clearly favor [its] position, not simply that [it] is likely to succeed. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015); see also Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (the Court must act with caution and deny mandatory injunctive relief “unless the facts and law clearly favor the moving party.”).

CV-90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk KT

 
 Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 1 of 69 Page ID #:5739

1 JEFFREY B. CLARK Acting Assistant Attorney General
2 SCOTT G. STEWART

3 Deputy Assistant Attorney General ERNESTO H. MOLINA, JR.
4 Deputy Director

5 CHRISTOPHER A. BATES

Senior Counsel to the Assistant Attorney General 6 BENJAMIN M. MOSS

7 W. DANIEL SHIEH

8

Senior Litigation Counsel NANCY K. CANTER

9 ANTHONY J. MESSURI

10

JONATHAN K. ROSS Trial Attorneys

11 Office of Immigration Litigation

12

U.S. Department of Justice P.O. Box 878, Ben Franklin Station

13 Washington, D.C. 20044

14 Telephone: (202) 305-9802 Daniel.Shieh@usdoj.gov

15 Counsel for Defendants

16

17

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

18

19 Lucas R., et. al.,

Case No.: 18-cv-05741-DMG-PLA

20

Plaintiffs,

MEMORANDUM OF POINTS AND AUTHORITIES AND

21

EXHIBITS IN SUPPORT OF

22

v.

DEFENDANTS’ MOTION FOR

SUMMARY

JUDGMENT

23 Alex M. Azar,

PURSUANT TO F.R.C.P. 56.

24

Secretary of U.S. Dep’t of Health and

Human Services, et al.

Hearing Date: December 11, 2020

25

Time: 3:00 p.m. PT

26

Defendants.

350 West 1st Street Los Angeles, CA 90012

27

Honorable Dolly M. Gee

28

United States District Judge

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 2 of 69 Page ID #:5740

1 2 I. 3
II. 4 5 III. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 IV. 22 V. 23 24 25 26 27 28

TABLE OF CONTENTS
INTRODUCTION ...........................................................................................1
RELEVANT BACKGROUND.......................................................................6
ISSUES PRESENTED ..................................................................................12
1. Whether the Court should grant summary judgment for Defendants on Plaintiffs’ step-up claim (the second claim for relief, Compl. ¶¶ 183-84), because the claim is barred by res judicata and because there is no genuine dispute of material fact that ORR’s policies and procedures on placement of UACs in restrictive settings comport with due process, the TVPRA, and the APA ..............................................................................12
2. Whether the Court should grant summary judgment for Defendants on Plaintiffs’ unfit-custodian claim (the first claim for relief, Compl. ¶¶-180-81), because the claim is barred by res judicata and because there is no genuine dispute of material fact that ORR’s policies and procedures for release decisions comport with due process, the TVPRA, the APA, and the First Amendment’s Freedom of Association Clause...................12
3. Whether the Court should grant summary judgment for Defendants on Plaintiffs’ legal-representation claim (the fourth claim for relief, Compl. ¶¶ 189-90), because the claim is barred by res judicata and because there is no genuine dispute of material fact that ORR’s policies and procedures regarding legal representation of UACs comport with due process, the TVPRA, the HSA, federal immigration regulations, and the APA. ........12
LEGAL STANDARD FOR SUMMARY JUDGMENT ..............................13
ARGUMENT ................................................................................................. 14
A. Defendants Are Entitled to Judgment as a Matter of Law on the Step-Up Class’s Claim. ............................................................................14
1) Plaintifs’ claim for the step-up class is barred by res judicata. .........14
2) ORR’s policies and procedures for the step-up class satisfy due process as a matter of law. ..................................................................18
i

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VI. 28

a. Private interests...............................................................................19 b. Risk of erroneous deprivation ........................................................25 c. The government’s interest ..............................................................31 d. Balance of Mathews factors ...........................................................32 3) ORR’s policies and procedures for the step-up class comport with the TVPRA and the APA ............................................................33 B. Defendants Are Entitled to Judgment as a Matter of Law on the Unfit-Custodian Class’s Claim.................................................................34 1) The unfit-custodian claim is barred by res judicata. ...........................34 2) ORR’s policies and procedures for the unfit-custodian class satisfy due process as a matter of law. ................................................38 a. Private interests...............................................................................38 b. Risk of erroneous deprivation ........................................................43 c. The government’s interest ..............................................................48 d. Balance of Mathews factors ...........................................................49 3) ORR’s policies and procedures for the unfit-custodian class comport with the TVPRA, the APA, and the First Amendment ........49 C. Defendants Are Entitled to Judgment as a Matter of Law on the Legal-Representation Class’s Claim. .......................................................51 1) The legal-representation class’s claim is barred by res judicata. .......51 2) ORR’s policies and procedures for the legal-representation class satisfy due process as a matter of law. ................................................53 3) ORR’s policies and procedures for the legal-representation class comport with the TVPRA, the HSA, Title 8, and the APA ................57 CONCLUSION..............................................................................................60
ii

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1

TABLE OF AUTHORITIES

2

CASES

3 Al Otro Lado, Inc. v. McAleenan, 4 423 F.Supp.3d 848 (S.D. Cal. 2019) ............................................................. 31, 47

5 Anderson v. Liberty Lobby, Inc., 6 477 U.S. 242 (1986) ...................................................................................... 13, 14

7 Beyene v. Coleman Sec. Servs., Inc.,
8 854 F.2d 1179 (9th Cir. 1988) ........................................................................ 13-14

9

10

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) .............................................................................................50

11

12 Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009) ......................................................................... 20, 53
13

14 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................13
15

16 Connecticut Bd. of Pardons v. Dumschat, 17 452 U.S. 458 (1981) .............................................................................................20

18 Cortez–Flores v. INS, 19 500 F.2d 178 (5th Cir. 1974) ................................................................................43

20 Costantini v. Trans World Airlines, 21 681 F.2d 1199 (9th Cir. 1982) ..............................................................................35

22 D.B. v. Cardall, 23 826 F.3d 721 (4th Cir. 2016) ................................................................................42
24 Dawson v. Delaware,
25 503 U.S. 159 (1992) .............................................................................................50
26 Demore v. Kim,
27 538 U.S. 510 (2003) .............................................................................................40 28

iii

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 5 of 69 Page ID #:5743

1 Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) ..............................................................................13
2
3 DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) .........................................................................................40
4

5 Fiallo v. Bell, 6 430 U.S. 787 (1977) .............................................................................................21

7 Flores v. Lynch, 8 828 F.3d 898 (9th Cir. 2016) ........................................................................... 6, 15

9 Flores v. Barr, 10 No. 2:85-cv-04544 (July 30, 2018). .............................................................. 20, 52

11 Flores v. Sessions, 12 862 F.3d 863 (9th Cir. 2017) ...................................................................... 9-10, 26

13 Flores–Quezada v. Gonzales,
14 134 F. App’x 202 (9th Cir. 2005).........................................................................43

15

16

Gallanosa v. United States, 785 F.2d 116 (4th Cir. 1986) ................................................................................42

17

18 Gault, In re, 387 U.S. 1 (1967) .......................................................................................... 22, 23
19

20 Harris v. Cty. of Orange, 682 F.3d 1126 (9th Cir. 2012) ................................................................. 15, 35, 51
21

22 Hayward v. Marshall, 23 603 F.3d 546 (9th Cir. 2010) ............................................................. 20, 21, 39, 40

24 Ho by Ho v. San Francisco Unified School Dist., 25 965 F. Supp. 1316 (N.D. Cal 1997)......................................................................15

26 Howard v. City of Coos Bay, 27 871 F.3d 1032 (9th Cir. 2017) ........................................................... 16, 35, 47, 52

28

iv

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 6 of 69 Page ID #:5744

1 IDK, Inc. v. Clark Cty., 836 F.2d 1185 (9th Cir. 1988) ..............................................................................50
2
3 J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ..............................................................................53
4

5 J.F.G., Reyna as next friend of v. Hott, 6 921 F.3d 204 (4th Cir. 2019) ................................................................................42

7 Kentucky Dep’t of Corrections v. Thompson, 8 490 U.S. 454 (1989) ........................................................................... 19, 21, 39-40

9 King Cty. v. Rasmussen, 10 299 F.3d 1077 (9th Cir. 2002) ..............................................................................13

11 King v. Atiyeh, 12 814 F.2d 565 (9th Cir. 1987) ......................................................................... 30, 47

13 Mathews v. Diaz,
14 426 U.S. 67 (1976) ...............................................................................................22

15

16

Mathews v. Eldridge, 424 U.S. 319 (1976) ..................................................................................... passim

17

18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .............................................................................................14
19

20 McSherry v. City of Long Beach, 584 F.3d 1129 (9th Cir. 2009) ....................................................................... 13, 56
21

22 New Hampshire v. Maine, 23 532 U.S. 742 (2001) .............................................................................................15

24 Newton v. INS, 25 736 F.2d 336 (6th Cir. 1984) ................................................................................43

26 Olim v. Wakinekona, 27 461 U.S. 238 (1983) .............................................................................................20

28

v

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 7 of 69 Page ID #:5745

1 Parham v. J.R., 442 U.S. 584 (1979) ...................................................................................... 23, 27
2
3 Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999) ................................................................................22
4

5 Payne-Barahona v. Gonzales, 6 474 F.3d 1 (1st Cir. 2007) ....................................................................................43

7 Perez-Funez v. Dist. Dir., INS, 8 619 F. Supp. 656 (C.D. Cal. 1985).......................................................................53

9 Reno v. Flores, 10 507 U.S. 292 (1993) ..................................................................................... passim

11 Robles v. INS, 12 485 F.2d 100 (10th Cir. 1973) ..............................................................................43

13 Rufo v. Inmates of Suffolk Cnty. Jail,
14 502 U.S. 367 (1992) .............................................................................................15

15

16

Santos v. Smith, 260 F. Supp. 3d 598 (W.D. Va. 2017)..................................................................40

17

18 Schall v. Martin, 467 U.S. 253 (1984) .............................................................................................21
19

20 Smith v. Sumner, 994 F.2d 1401 (9th Cir. 1993) ................................................................. 20, 21, 54
21

22 Taylor v. Sturgell, 23 553 U.S. 880 (2008) .............................................................................................15

24 Troxel v. Granville, 25 530 U.S. 57 (2000) ...............................................................................................42

26 United States v. Asarco Inc., 27 430 F.3d 972 (9th Cir. 2005) ................................................................................20

28

vi

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 8 of 69 Page ID #:5746

1 United States v. Johnson, 28 F.3d 151 (D.C. Cir. 1994)................................................................................23
2
3 United States v. Salerno, 481 U.S. 739 (1987) .............................................................................................24
4

5 Western Radio Servs. Co., Inc. v. Glickman, 6 123 F.3d 1189 (9th Cir. 1997) ....................................................................... 37, 53

7

STATUTES

8 6 U.S.C. § 279 .................................................................................................. passim
9

10 8 U.S.C. § 1229c ......................................................................................................22

11 8 U.S.C. §1232................................................................................................. passim 12
13 8 U.S.C. § 1252..........................................................................................................6

14 8 U.S.C. § 1362................................................................................................. 53, 58
15 16 8 U.S.C. § 1522........................................................................................................39

17 31 U.S.C. § 6305........................................................................................................9

18

REGULATIONS

19 8 C.F.R. § 240.25 .............................................................................................. 10, 22
20

21 8 C.F.R. § 287.3 ................................................................................................ 58, 60

22 8 C.F.R. § 1003.62 ............................................................................................. 57-58
23 8 C.F.R. § 1240.10 ............................................................................................. 57-58
24

25 8 C.F.R. § 1292.1 ............................................................................................... 57-58

26

RULES

27

28 Fed. R. Civ. P. 56 ................................................................................................ 1, 13

vii

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 9 of 69 Page ID #:5747

1 I. INTRODUCTION

2

Plaintiffs seek judicially-created policies and procedures regarding the care of

3 unaccompanied alien children (UACs) in Office of Refugee Resettlement (ORR)

4 custody under a procedural-due-process theory that exceed both what they

5 previously negotiated in a nationwide settlement agreement and what Congress has

6 mandated by statute. These additional procedures would alter the policies and

7 procedures that ORR follows in making three vital decisions to safeguard the welfare

8 of UACs entrusted to its legal custody: (1) where UACs are housed; (2) when and

9 how they are released; and (3) the services they receive while in federal custody.

10 Two of the plaintiff classes in this case—the step-up class and the unfit-custodian

11 class—challenge the policies and procedures ORR follows in making those

12 decisions. A third plaintiff class—the legal representation class—seeks additional

13 services not provided by Congress to contest those decisions. Each class’s claims

14 fail as a matter of law. To start, their challenges were conclusively resolved in Flores

15 v. Barr, No. 85-cv-04544, where this Court approved a settlement agreement (the

16 Flores Settlement or Settlement) that “set[ ] out nationwide policy for the detention,

17 release, and treatment of minors in the custody of the INS” (¶ 9) for “[a]ll minors

18 who are detained in the legal custody of the INS” (¶ 10). Even if these claims were

19 not barred by res judicata, ORR’s procedures satisfy due process as a matter of law

20 and withstand all of Plaintiffs’ other challenges. This Court should therefore grant

21 summary judgment for Defendants under Fed. R. Civ. P. 56 on those three classes’

22 claims.

23

First, the Court should grant summary judgment for Defendants on the step-

24 up class’s claim that ORR does not provide adequate notice and an opportunity to

25 be heard for UACs who are placed in a secure, staff-secure, or residential-treatment-

26 center facility within 30 days of a step-up to those facilities. The step-up claim is

27 barred by res judicata. The Flores Settlement conclusively resolved the question of

28 what procedures due process requires be provided to UACs who wish to challenge

1 Memorandum in Support of Motion for Summary Judgment

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 10 of 69 Page ID #:5748

1 ORR placement decisions. Under the Settlement, a minor may seek “a bond

2 redetermination hearing before an immigration judge” (¶ 24A) to determine

3 dangerousness or whether they are a flight risk, and “[a]ny minor who disagrees with

4 the INS’s determination to place that minor in a particular type of facility . . . may

5 seek judicial review in any United States District Court with jurisdiction and venue

6 over the matter to challenge that placement determination” (¶24B). The step-up

7 class’s claim involves substantially the same evidence, alleges infringement of the

8 same rights, and arises out of the same transactional nucleus of facts as the Flores

9 Settlement. Under settled principles of res judicata, the Settlement precludes the

10 step-up class from raising a new procedural due process claim to seek new

11 procedures not required under the Settlement for this class, and imposing such

12 procedures would deprive Defendants of the benefits that they negotiated under the

13 Settlement.

14

Even if res judicata did not bar the step-up class’s claim, the Court should still

15 grant summary judgment to Defendants because ORR’s policies and procedures for

16 that class satisfy due process as a matter of law under Mathews v. Eldridge, 424 U.S.

17 319 (1976). Children, unlike adults, are always in some form of custody, and so

18 their liberty interest is limited. UACs in particular are children who lack an available

19 care provider, and Congress has expressly granted custody of UACs to ORR. ORR,

20 in turn, has developed and follows extensive procedures when placing a UAC in a

21 more restrictive setting. Those procedures include multiple levels of review and

22 opportunities to be heard, and balance important interests such as placing a child in

23 the least restrictive setting appropriate for the child’s needs while also providing for

24 the safety and welfare of other children in ORR care. Additional procedures

25 allowing further challenges to routine child-welfare decision-making in an

26 adversarial proceeding would not meaningfully reduce the (already low) risk of

27 erroneous deprivation of the class members’ diminished liberty interest.

28

2 Memorandum in Support of Motion for Summary Judgment

Case 2:18-cv-05741-DMG-PLA Document 263-1 Filed 10/02/20 Page 11 of 69 Page ID #:5749

1 Accordingly, under Mathews, Defendants are entitled to judgment as a matter of law

2 on the step-up class’s due-process claim.

3

Defendants are also entitled to judgment as a matter of law on the step-up

4 class’s claim that ORR’s policies and procedures on custody decisions violate the

5 Trafficking Victims Protection Reauthorization Act (TVPRA) and the

6 Administrative Procedure Act (APA). Plaintiffs identify no provision under either

7 statute that mandates the procedures they seek, and their claim under both statutes is

8 simply their procedural-due-process claim recast as a statutory violation. So their

9 claims under the TVPRA and the APA fail as a matter of law.

10

Second, the Court should grant summary judgment for Defendants on the

11 unfit-custodian class’s claim that ORR does not provide a timely and meaningful

12 opportunity to be heard when ORR delays or denies release to potential sponsors.

13 Plaintiffs’ unfit-custodian claim is barred by res judicata because the Flores

14 Settlement conclusively resolved what procedures due process requires for release

15 decisions. The Settlement requires ORR to avoid “unnecessary delay” in releasing

16 minors from its custody (¶ 14), sets forth criteria for ORR to consider in making a

17 suitability determination for potential sponsors (¶ 17), requires ORR to “make” and

18 “record” release efforts (¶ 18), and sets forth a procedure for a UAC’s attorney to

19 contact a “juvenile coordinator” to “investigate” any case where “Plaintiffs’ counsel

20 have reasonable cause to believe a minor . . . should have been released” (¶ 28B).

21 The unfit-custodian class’s claim involves substantially the same evidence, alleges

22 infringement of the same rights, and arises out of the same transactional nucleus of

23 facts as Flores, which set forth “nationwide policy for the detention, release, and

24 treatment of minors in the custody of the INS” (¶ 9). Res judicata thus precludes a

25 new due-process claim like this one that seeks additional procedures for minors in

26 immigration custody on claims that could have been raised in Flores.

27

Even if res judicata did not bar the unfit-custodian class’s claim, the Court

28 should still grant summary judgment for Defendants because ORR’s policies and

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1 procedures regarding release satisfy due process as a matter of law. As with the

2 step-up class, the unfit-custodian class’s liberty interest is limited given class

3 members’ status as children and as UACs apprehended at the border without legal

4 immigration status. And ORR has developed and follows extensive procedures

5 involving multiple levels of review in determining whether to release a UAC to a

6 potential sponsor. These processes safeguard the welfare of children in ORR’s care

7 while affording both children and potential sponsors ample opportunities to present

8 information supporting release. These processes, which appropriately balance the

9 competing interests involved in release decisions in a safe and timely manner, satisfy

10 due process as a matter of law.

11

Defendants are further entitled to judgment as a matter of law on the unfit-

12 custodian class’s claim that ORR’s policies and procedures for release decisions

13 violate the TVPRA, the APA, and the First Amendment. Plaintiffs identify no

14 provision under either the TVPRA or the APA that mandates the procedures they

15 seek, and their claims under both statutes are simply their procedural-due-process

16 claims recast as statutory violations. Similarly, Plaintiffs’ claim under the First

17 Amendment fails as a matter of law because it is simply their flawed due-process

18 claim recast under the First Amendment’s Freedom of Association Clause, which

19 does not help them in this context.

20

Finally, the Court should grant summary judgment for Defendants on the

21 legal-representation class’s claim that ORR “blocks” lawyers from representing

22 class members in matters involving ORR’s custody, release, medication, and

23 placement decisions. The legal-representation class’s claim that due process

24 requires ORR to facilitate access to counsel to contest routine ORR decisionmaking

25 is barred by res judicata. The Flores Settlement conclusively resolved this issue:

26 for legal representation, the Settlement expressly provides that UACs must receive

27 information regarding the “right to be represented by counsel at no expense to the

28 government,” but articulates no other requirements for facilitation beyond providing

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1 “[l]egal services information regarding the availability of free legal assistance” (Ex.

2 1, ¶ 14). Like the claims of the step-up and unfit-custodian classes, the legal-

3 representation class’s claim involves substantially the same evidence, alleges

4 infringement of the same rights, and arises out of the same transactional nucleus of

5 facts as Flores. Res judicata therefore precludes Plaintiffs’ due process claim

6 seeking additional legal-representation entitlements for class members beyond those

7 provided in the Flores Settlement.

8

Summary judgment for Defendants is also warranted on the legal-

9 representation class’s claim, even if res judicata did not apply, because ORR’s

10 policies and procedures regarding legal representation of UACs satisfy due process.

11 There is no protected liberty interest in Plaintiffs’ claimed right to access

12 representation by ORR-funded legal service providers to challenge ORR’s step-up,

13 release, and medication decisions. Challenges to routine child-welfare

14 decisionmaking have never been interpreted to mean “legal proceedings or matters”

15 under § 235(c)(5) of the TVPRA, and there is no evidence that ORR blocks legal

16 service providers from using non-ORR funds to independently represent UACs.

17 And even if there were some minimal interest, any risk of erroneous deprivation is

18 low given ORR’s extensive policies and procedures to ensure that UACs can obtain

19 information about the ability “to be represented by counsel at no expense to the

20 government” (Ex. 1, ¶ 14).

21

Defendants are also entitled to judgment as a matter of law on the legal-

22 representation class’s claim that ORR’s policies and procedures for legal

23 representation of UACs contravene the TVPRA, the Homeland Security Act (HSA),

24 federal immigration regulations, and the APA. None of these statute and regulations

25 mandate the right to access government-funded counsel to represent UACs in

26 matters unrelated to immigration proceedings, government-funded or not, nor do the

27 uncontroverted facts show that ORR blocks attorneys of record from representing

28 their clients. Thus, Plaintiffs’ legal-representation claims fail as a matter of law.

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1

For all these reasons, Defendants are entitled to judgment as a matter of law

2 on the step-up, unfit-custodian, and legal-representation classes’ claims.

3 II. RELEVANT BACKGROUND

4

The Flores Litigation and Its Resolution of Issues for UACs. Flores v. Barr,

5 No. 85-cv-04544 (C.D. Cal.), was filed in 1985. The Flores plaintiffs brought suit

6 on behalf of a class of certain alien minors detained by the INS because “a parent or

7 legal guardian [had] fail[ed] to personally appear to take custody of them.” Reno v.

8 Flores, 507 U.S. 292, 296 (1993). In 1986, the district court certified two classes:

9

(1) All persons under the age of eighteen (18) years who have been,

10

are, or will be arrested and detained pursuant to 8 U.S.C. § 1252 by

11

[INS] within the INS’ Western Region and who have been, are, or will be denied release from INS custody because a parent or legal

12

guardian fails to personally appear to take custody of them; and

13

(2) All persons under the age of eighteen (18) who have been, are or

will be arrested and detained pursuant to 8 U.S.C. § 1252 by [INS]

14

within the INS’ Western Region and who have been, are, or will be

15

subjected to any of the following conditions: a. inadequate

16

opportunities for exercise or recreation; b. inadequate educational instruction; c. inadequate reading materials; d. inadequate

17

opportunities for visitation with counsel, family, and friends;

18

e. regular contact as a result of confinement with adult detainees

unrelated to such minors either by blood, marriage, or otherwise;

19

f. strip or body cavity search after meeting with counsel or at any

20

other time or occasion absent demonstrable adequate cause.

21 Flores v. Lynch, 828 F.3d 898, 902 (9th Cir. 2016). In May 1988, the INS published
22 rules governing the detention and release of juveniles, 53 Fed. Reg. 17449, which
23 the Supreme Court upheld. Flores, 507 U.S. at 315. The Supreme Court held that 24 the new rules were a “reasonable response to the difficult problems presented when 25 the [INS] arrests unaccompanied alien juveniles” and “accord[ed] with both the 26
Constitution and the relevant statute.” Id. at 315. 27

28

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1

In 1997, the Flores district court approved a settlement agreement between

2 the federal government and a class of “[a]ll minors who are detained in the legal

3 custody of the INS” (¶ 10). The Settlement “sets out nationwide policy for the

4 detention, release, and treatment of minors in the custody of the INS” (¶ 9) and
5 provides detailed procedures and standards for the release and placement of UACs
6 in federal custody (Ex. 1). The Settlement states that “upon execution of this 7 Agreement in their representative capacities, the principals, agents, and successors 8
of such principals and agents shall be fully and unequivocally bound hereunder to 9
the full extent authorized by law” (¶ 41). 10
On placement of UACs in federal custody, the Settlement provides that “[a] 11
minor may be held in or transferred to a suitable State or county juvenile detention 12
facility” whenever the relevant agency official “determines that the minor” has met 13
certain criteria, including being chargeable with a crime, making credible threats of 14
violence, engaging in unacceptably disruptive behavior, or being an escape risk 15
(¶ 21). The Settlement additionally allows challenges to certain agency custodial 16
decisions: it specifies procedures for a bond hearing before an immigration judge 17
(¶ 24A), allows for judicial review in a court with jurisdiction and venue to challenge 18
placement in a particular type of facility, such as a secure facility (¶ 24B), and 19
articulates an “abuse of discretion” standard of review for such placements (¶ 24C). 20
It also delegates review and approvals of placements in secure facilities to agency 21
personnel and does not require further process within the agency (¶ 23). 22
On release, the Settlement provides that release shall be considered only 23
where the agency “determines that detention . . . is not required . . . to secure . . . 24
appearance before the . . . immigration court, or to ensure the minor’s safety or that 25
of others.” In such a case, the agency “shall release a minor from its custody without 26
unnecessary delay” to an approved custodian (¶ 14), and the agency “shall make and 27
record the prompt and continuous efforts on its part toward . . . release” (¶ 18). The 28

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1 Settlement also provides the agency with broad authority to conduct suitability

2 determinations of potential custodians, which “may” include a number of

3 “components,” before releasing a class member (¶ 17). The Settlement specifies that

4 if “Plaintiffs’ counsel have reasonable cause to believe that a minor in INS legal

5 custody should have been released pursuant to Paragraph 14, Plaintiffs’ counsel may

6 contact the Juvenile Coordinator to request that the Coordinator investigate the case

7 and inform Plaintiffs’ counsel of the reasons why the minor has not been released”

8 (¶ 28B).

9

Finally, the Settlement provides that UACs are to be provided with a list of

10 free legal services that may be available to them, and that UACs in licensed programs

11 should be informed of their “right to be represented by counsel at no expense to the

12 government” (¶ 24D; Ex. 1, ¶ 14). The Settlement provides no right to counsel,

13 government-funded or not.

14

Legislative Developments to Address UACs. In 2002, Congress enacted the

15 HSA, Pub. L. No. 107-296, 116 Stat. 2135 (codified in relevant part at 6 U.S.C.

16 § 279). The HSA abolished the INS, established the Department of Homeland

17 Security (DHS), and transferred several functions with respect to the care of UACs

18 from the INS to ORR, an office within the Department of Health and Human

19 Services (HHS). 6 U.S.C. §§ 279(a), (b)(1)(A), (g)(2). Under the HSA, ORR is

20 responsible for the care and placement of UACs who enter the United States illegally

21 and who are “in Federal custody by reason of their immigration status.” Id.

22 § 279(b)(1)(A). The HSA charges ORR with “coordinating and implementing the

23 care and placement of unaccompanied alien children,” “ensuring that the best

24 interests of the child are considered in decisions and actions relating to the care and

25 custody of an unaccompanied alien child,” and identifying “a sufficient number of

26 qualified individuals, entities, and facilities to house” such children. Id. § 279(b)(1).

27 The HSA provides that ORR “shall not release” unaccompanied minor children

28 “upon their own recognizance.” 6 U.S.C. § 279(b)(2)(B). The HSA includes a

8 Memorandum in Support of Motion for Summary Judgment

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1 savings clause that preserves “administrative actions” to which INS was a party, id.

2 § 552(a)(1) (incorporated by reference in 6 U.S.C. § 279(f)(2)), which has been read

3 to include the Flores Settlement.

4

In 2008, the TVPRA was enacted, Pub. L. No. 110-457, 122 Stat. 5044

5 (principally codified in relevant part at 8 U.S.C. § 1232), “to enhance the efforts of

6 the United States to prevent trafficking in persons,” to reflect Congress’s goal of

7 ensuring that UACs “are safely repatriated to their country of nationality or of last

8 habitual residence,” and to avoid incentives that would lead to alien smuggling and

9 dangerous travel for minor children. 8 U.S.C. § 1232(a). The TVPRA defines a

10 UAC as a person under age 18 who lacks lawful immigration status in the United

11 States and for whom (a) no parent or legal guardian is in the United States, or (b) no

12 parent or legal guardian is available to provide care and physical custody. 8 U.S.C.

13 § 1232(g); see also 6 U.S.C. § 279(g)(2). Under the TVPRA, UACs from countries

14 not contiguous to the United States and certain UACs from contiguous countries are

15 placed into HHS custody. See 8 U.S.C. §§ 1232(a)(3)-(4), (a)(5)(D), (d)(8). The

16 TVPRA further directs HHS to place UACs “in the least restrictive setting that is in

17 the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), while the UAC is in HHS

18 ORR custody—that is, until the UAC is released to a suitable sponsor, obtains lawful

19 status, or leaves the country, see 6 U.S.C. § 279(g); 8 U.S.C §§ 1232(b)(1), (g). In

20 placing children in the least restrictive setting that is in the child’s best interests,

21 HHS is to “consider danger to self, danger to the community, and risk of flight.” 8

22 U.S.C. § 1232(c)(2)(A). Organizations that provide shelter and services to UACs

23 do so with substantial ORR involvement pursuant to a cooperative agreement with

24 ORR, see 31 U.S.C. § 6305, and must comply with ORR’s policies and procedures.

25 Defendants’ Statement of Uncontroverted Facts (U.F.) ¶¶ 8-9; Joint Stipulation

26 Regarding Motion and Cross-Motion for Summary Judgment (J.S.) ¶ 93.

27

The ORR Guide specifies several mechanisms for obtaining a UAC’s release.

28 See generally ORR Guide § 2; Flores v. Sessions, 862 F.3d 863, 871, n.8 (9th Cir.

9 Memorandum in Support of Motion for Summary Judgment

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1 2017). “Parents, relatives, or close family friends may apply to have the child

2 released to their care.” ORR Guide § 2.2. In the rare situation where release is

3 denied to a parent or legal guardian, special procedures apply, a formal decision

4 letter is sent, and the parent or legal guardian may appeal and request a hearing

5 before the Assistant Secretary for Children and Families. ORR Guide § 2.7.8. The

6 Ninth Circuit has additionally interpreted the Flores Settlement to provide UACs in

7 ORR custody the right to challenge in an immigration-court bond hearing continued

8 custody that is based solely upon the danger the UAC would present upon release.

9 Flores, 862 F.3d at 881.1 A UAC can decide to leave ORR’s custody at any time by

10 seeking voluntary departure to his or her country of origin, at no cost to the UAC.

11 See 8 U.S.C. § 1232(a)(5)(D)(ii); 8 C.F.R. § 240.25.

12

This Case. On June 29, 2018, seven individual plaintiffs and two institutional

13 plaintiffs filed this lawsuit challenging ORR’s policies and practices regarding

14 UACs in its custody. In their operative, amended complaint, Plaintiffs brought five

15 claims. Amended Complaint, ECF. No. 81 (Compl.). First, Plaintiffs claim that—

16 in violation of the Flores Settlement, the TVPRA, the APA, the Due Process Clause,

17 and the First Amendment’s Freedom of Association Clause—“[a]s a matter of policy

18 and practice Defendants unreasonably and unnecessarily delay or refuse to release

19 children to parents, close family members, and other available custodians on the

20 ostensible grounds that such custodians are or may be unfit, and they do so without

21 affording detained minors or their proposed custodians a timely, prompt, or

22 meaningful opportunity to be heard regarding such custodians’ fitness.” Compl. ¶¶

23 180-81. Second, Plaintiffs claim that—in violation of the Flores Settlement, the

24 TVPRA, the APA, and the Due Process Clause—“[a]s a matter of policy and

25 practice, Defendants place Plaintiffs and those similarly situated in [residential

26 1 The United States respectfully disagrees with the Ninth Circuit’s interpretation of 27 the Flores Settlement. A favorable finding at a Flores bond hearing does not 28 automatically entitle a UAC to release, as ORR must still determine the suitability
of the sponsor to be a custodian. Flores, 862 F.3d at 878.
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1 treatment centers], secure facilities, and medium-secure facilities without affording

2 them a meaningful opportunity to be heard either prior or subsequent to such

3 placement.” Id. ¶¶ 183-84. Third, Plaintiffs claim that—in violation of the Flores

4 Settlement, the TVPRA, the APA, and the Due Process Clause—“[a]s a matter of

5 policy and practice, Defendants administer children psychotropic drugs without

6 procedural safeguards, including: obtaining informed consent or the lawful

7 equivalent; involving a neutral decision maker in the initial determination of whether

8 to prescribe psychotropic medications to children in ORR custody; and conducting

9 a periodic review of such treatment decisions to ensure that youth are not

10 administered psychotropic medications unnecessarily or at harmful dosage levels or

11 in harmful combinations.” Id. ¶¶ 186-87. Fourth, Plaintiffs claim that—in violation

12 of the Flores Settlement, the TVPRA, the HSA, the APA, and the Due Process

13 Clause—“[a]s a matter of policy and practice, ORR blocks [Vera Institute of Justice

14 (VIJ)]-funded lawyers from representing Plaintiffs and those similarly situated in

15 legal matters and proceedings involving ORR’s decisions regarding custody, release,

16 medication, and placement.” Id. ¶¶ 189-90. Fifth, Plaintiffs claim that—in violation

17 of the Rehabilitation Act—(1) “[a]s a matter of policy and practice, ORR places

18 Plaintiffs who have or are perceived to have behavioral, mental health, intellectual

19 and/or developmental disabilities in restrictive settings, such as secure facilities,

20 medium secure facilities, or [residential treatment centers], because of their

21 disabilities”; and (2) “[a]s a matter of policy and practice, ORR delays or obstructs

22 the release of Plaintiffs who have or are perceived to have behavioral, mental health,

23 intellectual and/or developmental disabilities to parents, close family members, and

24 other available custodians because of their disabilities.” Id. ¶¶ 192-94.

25

In September 2018, Defendants moved to dismiss Plaintiffs’ complaint in its

26 entirety and Plaintiffs moved for class certification. ECF No. 97, 101. The Court

27 granted Defendants’ motion to dismiss “only insofar as it seeks the dismissal without

28 prejudice of Plaintiffs’ claims to enforce the Flores Agreement, but not insofar as it

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1 requests the dismissal of Plaintiffs’ claims that ORR failed to provide sufficient

2 procedural safeguards for alien minors to exercise their Flores rights.” Amended

3 Order, ECF No. 126 at 27 (Order). The Court also certified five classes: (1) a step-

4 up class, based on Plaintiffs’ second claim—that UACs are denied due process when

5 they are placed in secure, staff-secure, and residential-treatment-center facilities; (2)

6 an unfit-custodian class, based on Plaintiffs’ first claim for relief—that UACs are

7 denied due process when they are denied release to potential sponsors; (3) a drug-

8 administration class, based on Plaintiffs’ third claim—that UACs are administered

9 psychotropic drugs without appropriate safeguards; (4) a legal-representation class,

10 based on Plaintiffs’ fourth claim—that ORR blocks legal assistance to UACs in

11 matters relating to their custody, medication, and release; and (5) a disability class,

12 based on Plaintiffs’ fifth claim—that ORR discriminates against UACs on the basis

13 of disability in placement and release decisions. Id. at 27-28.

14 III. ISSUES PRESENTED

15 1. Whether the Court should grant summary judgment for Defendants on

16

Plaintiffs’ step-up claim (the second claim for relief, Compl. ¶¶ 183-84),

17

because the claim is barred by res judicata and because there is no genuine

18

dispute of material fact that ORR’s policies and procedures on placement of

19

UACs in restrictive settings comport with due process, the TVPRA, and the

20

APA.

21 2. Whether the Court should grant summary judgment for Defendants on

22

Plaintiffs’ unfit-custodian claim (the first claim for relief, Compl. ¶¶ 180-81),

23

because the claim is barred by res judicata and because there is no genuine

24

dispute of material fact that ORR’s policies and procedures for release

25

decisions comport with due process, the TVPRA, the APA, and the First

26

Amendment’s Freedom of Association Clause.

27 3. Whether the Court should grant summary judgment for Defendants on

28

Plaintiffs’ legal-representation claim (the fourth claim for relief, Compl.

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1

¶¶ 189-90), because the claim is barred by res judicata and because there is

2

no genuine dispute of material fact that ORR’s policies and procedures

3

regarding legal representation of UACs comport with due process, the

4

TVPRA, the HSA, federal immigration regulations, and the APA.

5 IV. LEGAL STANDARD FOR SUMMARY JUDGMENT

6

“The court shall grant summary judgment if the movant shows that there is no

7 genuine dispute as to any material fact and the movant is entitled to judgment as a

8 matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of

9 demonstrating the absence of any genuine issue of material fact. Devereaux v.

10 Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). A fact is material if it may affect the

11 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

12 “Once the moving party carries its initial burden,” the non-moving party must

13 provide evidence that “set[s] forth specific facts showing that there is a genuine issue

14 for trial.” Devereaux, 263 F.3d. at 1076 (quoting Fed. R. Civ. P. 56(e)).

15

At summary judgment, the Court should draw evidentiary inferences in the

16 light most favorable to the non-moving party. King Cty. v. Rasmussen, 299 F.3d

17 1077, 1083 (9th Cir. 2002). But the moving party need not disprove matters on

18 which the opponent has the burden of proof at trial. Celotex Corp. v. Catrett, 477

19 U.S. 317, 322 (1986). Summary judgment is appropriate “against a party who fails

20 to make a showing sufficient to establish the existence of an element essential to the

21 party’s case, and on which that party will bear the burden of proof at trial.” Id. at

22 322. “Only disputes over facts that might affect the outcome of the suit under the

23 governing law will properly preclude the entry of summary judgment.” Anderson,

24 477 U.S. at 248.

25

To create a genuine issue of material fact, a party must rely on facts, not

26 unsupported statements. McSherry v. City of Long Beach, 584 F.3d 1129, 1138 (9th

27 Cir. 2009). “[O]nly admissible evidence may be considered by the trial court in

28 ruling on a motion for summary judgment.” Beyene v. Coleman Sec. Servs., Inc.,

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1 854 F.2d 1179, 1181 (9th Cir. 1988). To defeat a motion for summary judgment,

2 the non-moving party must present “evidence on which the [factfinder] could

3 reasonably find for the” non-moving party. Liberty Lobby, 477 U.S. at 252. Thus,

4 where the record taken as a whole could not lead a rational trier of fact to find for

5 the non-moving party, there is no genuine issue for trial and summary judgment is

6 appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

7 (1986).

8 V. ARGUMENT

9

As a matter of law, Plaintiffs cannot prevail on their claims for the step-up,

10 unfit-custodian, and legal-representation classes. The Court therefore should grant

11 summary judgment for Defendants on the first, second, and fourth claims in the

12 operative complaint.

13 A. Defendants Are Entitled to Judgment as a Matter of Law on the Step-Up

14

Class’s Claim.

15

The Court should grant summary judgment for Defendants on Plaintiffs’

16 claim that ORR’s step-up procedures are unlawful because ORR allegedly does not

17 provide adequate notice and an opportunity to be heard for UACs placed in secure,

18 staff-secure, and residential-treatment-center facilities within 30 days. Compl.

19 ¶¶ 122, 182-84. Plaintiffs’ step-up claim is barred by res judicata. And ORR’s

20 policies and procedures for stepping up UACs to more restrictive settings satisfy due

21 process and other legal requirements as a matter of law.

22 1) Plaintiffs’ claim for the step-up class is barred by res judicata.
23

24

Plaintiffs’ step-up challenge—including the purported statutory aspects of

25 their claim that simply replicate their due-process challenge—is barred by res

26 judicata. Their claim that due process requires additional procedures to challenge

27 placement decisions was conclusively resolved in Flores. “Under the doctrine of

28 claim preclusion [res judicata], a final judgment forecloses ‘successive litigation of

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1 the very same claim, whether or not relitigation of the claim raises the same issues

2 as the earlier suit.’” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New

3 Hampshire v. Maine, 532 U.S. 742, 748 (2001)). “Claim preclusion requires three

4 things: (1) identity of claims; (2) a final judgment on the merits; and (3) the same

5 parties, or privity between the parties.” Harris v. Cty. of Orange, 682 F.3d 1126,

6 1132 (9th Cir. 2012).

7

The last two requirements are straightforwardly satisfied here. On the second

8 requirement, the Ninth Circuit has treated the Flores Settlement as a consent decree,

9 and it is therefore a final judgment on the merits. See Flores v. Lynch, 828 F.3d 898,

10 905 (9th Cir. 2016) (stating “[t]he Settlement is a consent decree”); see also Rufo v.

11 Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992) (a consent decree is “an

12 agreement that the parties desire and expect will be reflected in, and be enforceable

13 as, a judicial decree that is subject to the rules generally applicable to other

14 judgments and decrees”). The Flores Settlement additionally states that it

15 “constitutes a full and complete resolution of the issues raised in th[e] action.”

16 Flores Settlement, pp. 3-4.

17

On the third requirement, the members of the step-up class are Flores class

18 members, so they are in privity with the Flores class. See Ho by Ho v. San Francisco

19 Unified School Dist., 965 F. Supp. 1316, 1321 (N.D. Cal 1997) (in a class action, the

20 judgment “binds all class members on every matter which was or could have been

21 offered to sustain or defeat the claims sued upon”). Paragraph 10 of the Flores

22 Settlement defines the Flores class as “[a]ll minors who are detained in the legal

23 custody of” ORR (previously the INS).2 The Lucas R. step-up class comprises “all

24

25 2 As explained, the HSA transferred responsibilities for the care of UACs from the 26 INS to ORR, see 6 U.S.C. §§ 279(a), (b)(1)(A), (g)(2), and the HSA’s savings clause
preserves administrative actions to which INS was a party, see id. § 552(a)(1) 27 (incorporated by reference into 6 U.S.C. § 279(f)(2)). This includes agreements to 28 which INS was a party, such as the Flores Settlement, as set forth in paragraph 41
of the Settlement. See id. § 552(a)(2).
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1 minors in ORR custody . . . who are or will be placed in a secure facility, medium-

2 secure facility, or [residential treatment center], or whom ORR has continued to

3 detain in any such facility for more than 30 days, without being afforded notice and

4 an opportunity to be heard before a neutral and detached decisionmaker regarding

5 the grounds for such placement.” Order at 27. All step-up class members are in

6 ORR custody. The step-class is therefore a subset of the Flores class, and there is

7 privity between the parties in the two suits.

8

On the first requirement for res judicata, there is an identity of claims between

9 the step-up class’s claim and the claims resolved in the Flores Settlement. In

10 assessing whether there is an identity of claims between suits, the Court considers:

11 (a) whether rights or interests established in the prior judgment would be destroyed

12 or impaired by prosecution of the second action; (b) whether substantially the same

13 evidence is presented in the two actions; (c) whether the two suits involve

14 infringement of the same right; and (d) whether the two suits arise out of the same

15 transactional nucleus of facts. Howard v. City of Coos Bay, 871 F.3d 1032, 1039

16 (9th Cir. 2017). “These criteria are not applied mechanistically,” and “[t]he fourth

17 criterion is the most important.” Id. (internal quotation marks omitted).

18

All four factors establish an identity of claims between Flores and the step-up

19 class. First, rights established under the Flores Settlement would be impaired by the

20 step-up class’s claim. The Flores Settlement authorizes the government, in

21 resolution of Plaintiffs’ due process claim, to place a minor in a restrictive facility

22 “whenever” ORR determines the minor has met the criteria articulated in the

23 Settlement (¶ 21), subject to two provisions: (1) that “[a]ll determinations to place a

24 minor in a secure facility will be reviewed and approved by the regional juvenile

25 coordinator” (¶ 23) and (2) that placement determinations may potentially be

26 challenged through bond hearings (¶ 24A). ORR’s placement authority, and the

27 limitations on that authority, are thus part of the Flores Settlement. Upsetting that

28

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1 authority—as Plaintiffs here seek to do—would impair rights established under

2 Flores. See Compl. ¶ 126.

3

Second, the two actions involve substantially the same evidence. Both Flores

4 and the step-up class’s claim involve the procedures due process requires ORR to

5 provide minors for challenging the government’s decision to place a minor in a more

6 restrictive facility. This is articulated in paragraph 69 of the original Flores

7 complaint, which challenges the government’s procedures for placing detained

8 minors in restrictive settings, and in the preamble of the Settlement, which states that

9 “Plaintiffs have filed this action against Defendants, challenging, inter alia, the

10 constitutionality of Defendants’ policies, practices and regulations regarding the

11 detention and release of unaccompanied minors.” Settlement at 3 (emphasis added).

12 The parties also agreed in the Settlement that, in making placement decisions, the

13 government will consider whether the minor poses a danger to self or others,

14 including whether the minor “has been charged with, is chargeable, or has been

15 convicted of a crime” or “is chargeable with a delinquent act” (¶ 21). This is the

16 same standard articulated in the ORR Guide § 1.2.4, which also considers whether

17 the minor “poses a danger to self or others.” Thus, the question of what evidence

18 the government should consider and what procedures it should follow in making

19 placement decisions, as well as what processes it must provide to minors seeking to

20 challenge such a decision, is the same in both cases.

21

Third, Flores and the step-up class’s claim involve alleged infringement of

22 the same right—the minor’s asserted due-process right to contest the agency’s

23 placement decision. The Flores parties agreed that minors were entitled to a bond

24 hearing, and further agreed that minors could challenge individual placement

25 decisions in a court with jurisdiction and venue to hear their claims (¶ 24), which the

26 parties agreed satisfied due process in order to resolve the suit, which was also

27 brought on due-process grounds. Further, in holding that the immigration bond

28 hearings under ¶ 24A were not terminated by the TVPRA, the Ninth Circuit reasoned

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1 that these hearings were necessary because they “provide an opportunity to contest

2 the basis of such confinement” and “ensure[ ] that [UACs] are not held in secure

3 detention without cause,” and that these hearings “provide[ ] meaningful

4 protections” against arbitrary decisionmaking. Flores, 862 F.3d at 868.

5

Finally, the two actions arise out of the same transactional nucleus of facts.

6 Both Flores and the step-up class ask the Court to address the procedures that due

7 process requires when a minor wants to challenge his or her placement in a restrictive

8 setting while in federal custody. The Flores Settlement sets forth processes for such

9 placement decisions and for review of those decisions (¶¶ 21-24). In both Flores

10 and this case, the factual scenario before the Court—the placement of a minor in a

11 restrictive setting and the processes for review of such a placement—is the same.

12 Accordingly, there is identity of claims between Flores and the step-up class.

13

All the requirements for claim preclusion are satisfied for the step-up class’s

14 claim. Thus, res judicata applies and bars the step-up class from seeking additional

15 procedures beyond those already provided in the Flores Settlement without the

16 Court first terminating the Flores Settlement.3 Order 9-11.

17

2) ORR’s policies and procedures for the step-up class satisfy due

18

process as a matter of law.

19

Defendants are also entitled to judgment as a matter of law on the step-up

20 class’s due-process claim because ORR’s policies and procedures for placement of

21 minors in a restrictive setting satisfy due process as a matter of law. The Court

22 weighs three factors in assessing whether the procedures the government provides

23 comport with due process: “First, the private interest that will be affected by the

24 official action; second, the risk of an erroneous deprivation of such interest through

25 the procedures used, and the probable value, if any, of additional or substitute

26 3 If Plaintiffs are actually asserting that ORR is violating the Flores Settlement, e.g., 27 Compl. ¶ 126 (“ORR regularly places children in RTCs, secure and medium-secure 28 facilities . . . contrary to immigration judges’ determinations”), they must bring those
claims in an enforcement action in Flores itself.
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1 procedural safeguards; and finally, the Government’s interest, including the function

2 involved and the fiscal and administrative burdens that the additional or substitute

3 procedural requirement would entail.” Mathews, 424 U.S. at 335. The

4 government’s strong interests in protecting children in its care and the thorough

5 procedures ORR follows in making placement decisions demonstrate that ORR’s

6 step-up procedures satisfy due process as a matter of law.

7

a. Private interests

8

To start, the private interests that Plaintiffs allege have limited force as applied

9 to ORR step-up decisions. Plaintiffs contend that minors in ORR care have two

10 protected liberty interests that are relevant to the step-up claim: (1) a statutory

11 interest under the TVPRA and a related contractual interest under the Flores

12 Settlement to be placed in the “least restrictive setting”; and (2) a due-process

13 interest in being free from “unnecessary physical restraints, including placement in

14 RTCs, medium-secure or secure facilities.” Comp. ¶¶ 117-19, 122. Both interests

15 have limited weight as applied to Plaintiffs’ step-up claim and, as explained below,

16 are decisively outweighed by the other Mathews factors.

17

First, Plaintiffs have at most a limited interest under the TVPRA in placement

18 “in the least restrictive setting that is in the best interest of the child.” 8 U.S.C.

19 § 1232(c)(2)(A). A statute creates a protected liberty interest only when it:

20 (1) establishes “‘substantive predicates’ to govern official decision-making,” and

21 (2) uses “‘explicitly mandatory language,’ i.e., specific directives to the

22 decisionmaker that if the regulations’ substantive predicates are present, a particular

23 outcome must follow.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,

24 462-63 (1989) (internal citations omitted). Even if the TVPRA establishes

25 “substantive predicates”—i.e., that a UAC “shall be promptly placed in the least

26 restrictive setting that is in the best interest of the child,” subject to considerations

27 of “danger to self, danger to the community, and risk of flight”—it contains no

28 “explicitly mandatory language” that provides that, when “substantive predicates are

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1 present, a particular outcome must follow.” 8 U.S.C. § 1232(c)(2)(A). The

2 TVPRA’s use of the word “shall” does not mandate a particular outcome. See

3 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 466 (1981). The

4 “‘expectation of receiving process is not, without more, a liberty interest protected

5 by the Due Process Clause’ of the Fourteenth Amendment.” Carver v. Lehman, 558

6 F.3d 869, 875 (9th Cir. 2009) (quoting Olim v. Wakinekona, 461 U.S. 238, 250-51

7 n. 12 (1983)). Here, the TVPRA uses broad language that directs the Secretary to

8 consider “danger” to self or others in making placement decisions and delegates to

9 the Secretary equally broad authority to “prescribe” the “procedures” used to review

10 secure placements and determine if the “placement remains warranted.” 8 U.S.C.

11 § 1232(c)(2)(A). The statute does not mandate a particular outcome or require ORR

12 to adopt a particular set of procedures. See Hayward v. Marshall, 603 F.3d 546, 560

13 (9th Cir. 2010) (holding that because parole is a discretionary, predictive decision,

14 it does not create a protected liberty interest) (en banc). Thus, the TVPRA does not

15 create a protected liberty interest in placement in a non-restrictive setting.

16

Plaintiffs’ claimed liberty interest under the Flores Settlement similarly fails.

17 Even if a consent decree could confer a protected liberty interest in limited instances,

18 it does not do so here. To begin, although the Ninth Circuit has suggested that

19 Thompson’s two-part test for ascertaining protected liberty interests can, under some

20 circumstances, be applied to consent decrees, see Smith v. Sumner, 994 F.2d 1401,

21 1405-06 (9th Cir. 1993), the Ninth Circuit has never held that a consent decree can

22 expand on itself, creating protected liberty interests that mandate additional

23 procedures the parties never negotiated or agreed upon. To hold otherwise would

24 be to contravene the rule that a “consent decree, like a contract, must be discerned

25 within its four corners.” United States v. Asarco Inc., 430 F.3d 972, 980 (9th Cir.

26 2005). It would also conflict with this Court’s ruling in Flores that procedural

27 remedies (like the ones sought here) are not available to Plaintiffs for violations of

28 the Settlement. See Flores v. Barr, Case No. 2:85-cv-04544, ECF No. 470 at 2-3

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1 (July 30, 2018). Further, Smith was a case about jury instructions, not nationwide

2 injunctive relief, and the court in that case ruled that the consent decree at issue did

3 not create the claimed liberty interest. Smith, 994 F.2d at 1407 (holding “the right

4 to retain counsel conferred by the consent decree is not itself a protected liberty

5 interest.”).

6

And in any event, the Flores Settlement does not create a protected liberty

7 interest under Thompson’s two-part test because as with the TVPRA, it does not

8 contain “explicitly mandatory language” that when “substantive predicates are

9 present, a particular outcome must follow.” Thompson, 490 U.S. at 463. Paragraph

10 19 of the Settlement provides that UACs “shall be placed temporarily in a licensed

11 program until such time as release can be effected in accordance with Paragraph 14”

12 except in circumstances articulated under Paragraph 21. Paragraph 21 in turn

13 delegates broad authority to the government to place a UAC in a secure facility,

14 including when the minor “has committed, or has made credible threats to commit,

15 a violent or malicious act” or “has engaged, while in a licensed program, in conduct

16 that has proven to be unacceptably disruptive of the normal functioning of the

17 licensed program” (¶¶ 24B, 24C), and again does not mandate a particular outcome

18 or set of procedures. See Hayward, 603 F.3d at 560. Thus, like the TVPRA, the

19 Flores Settlement also does not create a protected liberty interest in placement in a

20 non-restrictive setting.

21

Second, Plaintiffs’ asserted due-process interest in freedom from

22 “unnecessary physical restraint” has limited force as applied to ORR step-up

23 decisions. The Supreme Court has recognized that children, “unlike adults, are

24 always in some form of custody.” Reno v. Flores, 507 U.S. at 302; Schall v. Martin,

25 467 U.S. 253, 265 (1984). Thus, every child’s interest in freedom from custody is

26 constrained, whether that child is in ORR custody by statutory mandate or in the

27 custody of a private guardian.

28

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1

Further, even if UACs in ORR care have a general liberty interest in freedom

2 from “unnecessary physical restraint,” this liberty interest is different from (and

3 weaker than) the liberty interests of minors in other juvenile detention contexts. See

4 Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Mathews v. Diaz, 426 U.S. 67, 79-

5 80) (1976) (“[I]n the exercise of its broad power over immigration and

6 naturalization, ‘Congress regularly makes rules that would be unacceptable if

7 applied to citizens.’”). In other juvenile detention contexts, the minor is coercively

8 confined with no ability to secure his or her release. See, e.g., In re Gault, 387 U.S.

9 1 (1967). The minor thus has no control over the length (or terms) of his or her

10 detention, and additional, procedural safeguards are warranted to ensure that the

11 greater loss of liberty comports with due process. Minors in the ORR context, by

12 contrast, lack the same liberty deprivation, because a UAC can obtain release from

13 custody by applying for and obtaining lawful immigration status, voluntarily

14 departing the United States, or obtaining ORR approval for a sponsor to take custody

15 of the UAC—none of these options are available in the juvenile detention context.

16 8 U.S.C. §§ 1229c, 1232(a)(5)(D); 8 C.F.R. § 240.25; cf. Parra v. Perryman, 172

17 F.3d 954, 958 (7th Cir. 1999) (“An alien in Parra’s position can withdraw his defense

18 of the removal proceeding and return home to his native land, thus ending his

19 detention immediately. He has the keys in his pocket.”). A UAC remains in ORR

20 custody only until the UAC (or a person acting on the UAC’s behalf) accomplishes

21 one of the above actions. And until the UAC does so, ORR is charged by Congress

22 with overseeing the UAC’s care and custody, which includes placing the minor in a

23 setting that ensures the minor is not a danger to themselves or others. 8 U.S.C.

24 § 1232(c)(2)(A).

25

Minors in ORR care who are stepped-up to more restrictive settings are also

26 already subject to a form of governmental custody prior to step-up. This differs

27 from minors in the domestic juvenile-justice context. Unless the minor is already in

28 a state child welfare system, prior to placement in an institutional setting, such

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1 minors are not in any sort of institutional care, as was the case in Gault, 387 U.S. at

2 4-5, where the minor resided with his parents. Thus, the comparative loss of liberty

3 for minors in ORR care who are stepped up to more restrictive settings is generally

4 less than for domestic minors entering the juvenile-justice system from living with

5 their parents or legal guardians. Cf. United States v. Johnson, 28 F.3d 151, 155 (D.C.

6 Cir. 1994) (noting that under D.C. law, “judges may impose a wide range of

7 dispositions on juveniles who are adjudged delinquent. The nature of confinement

8 may vary considerably. Juveniles may be placed in foster care, or in group homes,

9 or in residential treatment centers, or in secure prison-like facilities.”).

10

Plaintiffs’ asserted interest in freedom from “unnecessary physical restraint”

11 is also weaker for members of the step-up class who are in ORR state-licensed

12 residential treatment centers as compared to domestic juveniles who are

13 involuntarily committed to mental hospitals. Unlike the mental-hospital context

14 described in Parham v. J.R., 442 U.S. 584 (1979), the two residential treatment

15 centers in the ORR network are based on a group home model where residents sleep

16 without locked doors and there is a higher staff-to-minor ratio than in shelters. U.F.

17 ¶ 48.4 An ORR residential treatment center also differs significantly from the

18 involuntary psychiatric hospitalization described in Parham because it is more

19 home-like and less institutionalized than a hospital, while providing comprehensive

20 inpatient care. See U.F. ¶¶ 44-45. In addition, unlike involuntary commitment at a

21 psychiatric hospital, care at an ORR residential treatment center has community

22 connections that provide holistic support to treat UACs with significant emotional,

23 intellectual, or developmental needs. U.F. ¶ 44. And residential treatment centers,

24

25 26 4 Parham, like Gault, was decided long before the Flores Settlement was entered
into in 1997. Plaintiffs’ counsel in Flores did not negotiate for the procedures 27 recognized in Parham or Gault, and Congress did not mandate those procedures for 28 UACs in ORR care in the TVPRA or the HSA. Both features weigh against the
conclusion that, 23 years later, due process now mandates those procedures.
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1 with greater staff training and ratios, are better equipped to care for youth with more

2 serious psychiatric problems when compared with shelters. U.F. ¶ 76.

3

Plaintiffs’ asserted interest in freedom from “unnecessary physical restraint”

4 is even weaker for members of the step-up class who are in staff-secure facilities.

5 Notably, no class representative was stepped up to a staff-secure facility. Further,

6 staff-secure facilities do not impose physical restraints, with the main difference

7 from a shelter being that the staff-to-child ratio is higher in staff-secure facilities.

8 U.F. ¶¶ 37-39. Compared to shelters, staff-secure facilities merely provide a

9 heightened level of staff supervision, increased communication, and services to

10 control problem behavior and prevent escape. U.F. ¶ 38. Staff-secure facilities are

11 not equipped internally with multiple locked pods or cell units, and, in almost all

12 states, staff-secure providers maintain an identical type of license as a non-secure

13 care provider, and for such purposes are not viewed as different from a non-secure

14 care provider. U.F. ¶¶ 39-40. Notably, Congress did not require any additional

15 procedures under the TVPRA for staff-secure placements, mandating only that ORR

16 undertake monthly review of the “placement of a child in a secure facility.” 8 U.S.C.

17 § 1232(c)(2)(A). Accordingly, given the limited force of Plaintiffs’ asserted liberty

18 interests as applied to the step-up claim, the first element of the Mathews test, the

19 private interests at stake, weighs against finding that ORR’s step-up procedures

20 violate procedural due process.

21

To the extent that Plaintiffs assert a substantive-due-process right to “freedom

22 from unnecessary physical restraint” (Compl. ¶ 122), that claim also fails as a matter

23 of law. A substantive-due-process right is one “so rooted in the traditions and

24 conscience of our people as to be ranked as fundamental.” United States v. Salerno,

25 481 U.S. 739, 751 (1987) (internal quotations omitted). If Plaintiffs assert a

26 substantive-due-process right here, the Fifth Amendment “forbids the government

27 to infringe [upon that right] at all, no matter what process is provided, unless the

28 infringement is narrowly tailored to serve a compelling state interest.” Reno v.

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1 Flores, 507 U.S. at 302 (emphasis in original). Among other things, such a claim

2 would be inconsistent with Plaintiffs’ requested relief in their complaint, which only

3 seeks additional procedures: “Due process requires that ORR give Plaintiffs and

4 their proposed class members meaningful notice and an opportunity to be heard

5 before it places them in RTCs, medium-secure or secure facilities and an ongoing

6 review with commensurate protections every thirty days.” Compl. ¶ 122. Even

7 assuming Plaintiffs assert a substantive-due-process right for the step-up class, such

8 a claim cannot be squared with the Supreme Court’s holding in Reno v. Flores.

9 There, the Court ruled that the plaintiffs’ asserted substantive-due-process right to

10 “freedom from physical restraint” failed because “where the government does not

11 intend to punish the child, and where the conditions of governmental custody are

12 decent and humane, such custody surely does not violate the Constitution.” 507 U.S.

13 at 303. As explained, when ORR places a child in a secure, staff-secure, or

14 residential-treatment-center facility, it does so to protect the welfare of the child (and

15 other children in ORR care) and to prevent flight risk, not to punish the child. See

16 U.F. ¶¶ 36, 52; 8 U.S.C. § 1232(c)(2)(A). Nor do any of these facilities involve

17 inhumane conditions as described in Reno v. Flores. See U.F. ¶¶ 8, 10-11. Thus,

18 any substantive-due-process claim for the step-up class fails as a matter of law. See

19 also Reno v. Flores, 507 U.S. at 305 (“If we harbored any doubt as to the

20 constitutionality of institutional custody over unaccompanied juveniles, they would

21 surely be eliminated as to those juveniles . . . who are aliens.”).

22

b. Risk of erroneous deprivation

23

The second Mathews factor, “the risk of an erroneous deprivation of [a

24 protected] interest through the procedures used, and the probable value, if any, of

25 additional or substitute procedural safeguards,” strongly weighs in Defendants’

26 favor. 424 U.S. at 335. ORR provides thorough, effective procedures that balance

27 numerous important child-welfare considerations while also providing UACs with

28

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1 notice and a meaningful opportunity to be heard regarding their placement within 30

2 days.

3

First, ORR provides notice to minors who are stepped-up. ORR policy and

4 practice requires that every minor placed in a staff-secure, secure, or a residential-

5 treatment-center facility receive a Notice of Placement within 48 hours of placement,

6 which is provided to counsel on demand. U.F. ¶¶ 54-55; J.S. ¶ 76. This Notice

7 explains why the minor has been placed in a more restrictive setting, the minor’s

8 ability to seek review in court, and the minor’s ability to seek review before the ORR

9 Director. U.F. ¶¶ 54, 56, 64; J.S. ¶ 76. The Notice is provided in English and

10 Spanish, and is translated and explained for children who do not speak either

11 language. U.F. ¶¶ 54, 57.

12

Second, ORR provides UACs who are stepped up with multiple opportunities

13 to be heard before a neutral and detached decisionmaker. A UAC may seek a Flores

14 bond hearing before an immigration judge at any time. U.F. ¶ 65; J.S. ¶ 83.

15 Although the immigration judge’s decision in bond hearings does not bind ORR,

16 ORR considers the decision in setting the level of placement. U.F. ¶ 66. “The [bond]

17 hearing is a forum in which a child has the right to be represented by counsel, and to

18 have the merits of his or her detention assessed by an independent immigration

19 judge.” Flores, 862 F.3d at 867. Paragraph 24B of the Flores Settlement also

20 provides UACs the ability to seek judicial review of placement decisions, which are

21 reviewed for abuse of discretion (¶ 24C). U.F. ¶ 63. Flores bond hearings and

22 judicial proceedings are both hearings before a neutral decisionmaker, and both can

23 take place within 30 days of placement at the UAC’s request.

24

ORR also provides UACs placed in a secure or residential-treatment-center

25 facility with an internal administrative appeal process 30 days after placement,

26 through which the UAC can either request a hearing or submit a written statement.

27 See U.F. ¶¶ 67, 70-71. The appeal panel comprises three experienced ORR staff

28 members with extensive child-welfare and mental-health backgrounds, and ORR

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1 provides the minor and the minor’s attorney of record with any evidence supporting

2 the minor’s continued placement before the hearing. U.F. ¶¶ 68-69. UACs without

3 an attorney are appointed a child advocate or can ask the juvenile coordinator—a

4 contractor appointed to monitor compliance with the terms of the Flores

5 Settlement—to assist them, and the panel issues a written decision at the conclusion

6 of the hearing. U.F. ¶¶ 72-74.

7

ORR has additional procedures that it follows before transferring a minor to

8 a residential treatment center. Because Congress has assigned ORR the role of the

9 child’s custodian, ORR may, as a general matter, consent to the child’s placement in

10 a residential treatment center. Cf. Parham, 442 U.S. at 619 (“the state agency having

11 custody and control of the child in loco parentis has a duty to consider the best

12 interests of the child with respect to a decision on commitment to a mental hospital,”

13 and thus “the State may constitutionally allow that custodial agency to speak for the

14 child, subject, of course, to the restrictions governing natural parents”). Further,

15 before placing a child in residential treatment, ORR also requires a licensed

16 psychologist or psychiatrist to determine that the decision is medically indicated,

17 and a UAC may remain in residential treatment only if the licensed psychologist or

18 psychiatrist determines the child remains a danger to self or others. See U.F. ¶¶ 46-

19 47; J.S. ¶¶ 54-55. Notably, for each class representative placed in a residential

20 treatment center, a licensed psychologist or psychiatrist determined that such a

21 placement was necessary because the child had serious mental health needs that

22 made them a danger to themselves or others. See U.F. ¶¶ 109 (Lucas R.), 125

23 (Daniela Marisol T.), 140 (Gabriela N.), 143-44 (Sirena P.), 145-46 (Benjamin F.).

24 This satisfies due process. Cf. Parham, 442 U.S. at 606-07 (“some kind of inquiry

25 should be made by a ‘neutral factfinder’ to determine whether statutory requirements

26 for admission are satisfied,” and “a staff physician will suffice, so long as he or she

27 is free to evaluate independently the child’s mental and emotional condition and

28 need for treatment”).

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1

Third, step-up decisions are subject to extensive internal review procedures,

2 both before and after step-up, involving multiple decisionmakers to ensure that

3 placements reflect sound clinical judgment. U.F. ¶¶ 24, 79. Any request that a case

4 manager makes to transfer a minor to a more restrictive setting must be reviewed by

5 a case coordinator and approved by the federal field specialist.5 U.F. ¶¶ 13-16, 49-

6 51; J.S. ¶¶ 7-10. In deciding whether to approve a step-up request, the federal field

7 specialist may consult with numerous individuals, including a supervisor, a federal

8 field specialist supervisor for special populations, and the senior federal field

9 specialist supervisor, as well as the ORR Division of Policies and Procedures. U.F.

10 ¶ 53. Further, ORR Guide § 1.4.2 requires step-up determinations to be reviewed

11 by the case manager, case coordinator, and federal field specialist at least every 30

12 days to determine whether the child should remain in his or her current placement,

13 and § 1.4.7 allows a UAC to seek reconsideration of placement at a secure or

14 residential-treatment-center facility from the ORR Director (the only review

15 expressly required under the TVPRA § 235(c)(2)(A)). U.F. ¶¶ 60, 64. Before their

16 30-day review, case managers meet with the UAC to discuss their behavior and

17 needs, inform them of their upcoming review, and inform them of the bases for

18 determining whether their continued placement remains warranted. U.F. ¶ 61. If a

19 decision is made to continue the UAC’s current placement, the case manager, case

20 coordinator, and federal field specialist must document the reasons why in a new

21 Notice of Placement. U.F. ¶ 62. At least every 30 days, ORR also separately reviews

22 each Notice of Placement through an internal monitoring panel for compliance with

23 5 Case managers are grantee facility employees who are approved by ORR, and are
24 required to take 40-hours of annual training on all aspects of the UAC program. U.F. 25 ¶¶ 14-15; J.S. ¶ 8. Case coordinators are third-party contractors who are assigned to 26 one or more ORR care provider facilities to review children’s cases and provide
independent recommendations to ORR staff on transfer and release. U.F. ¶¶ 16, 29; 27 J.S. ¶¶ 9-10. Federal field specialists are located throughout the country and 28 assigned to a group of ORR grantee care providers within a particular geographic
region. J.S. ¶ 6.
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1 ORR policies and procedures, including whether the Notice was completed within

2 the required timeframe, whether the Notice was reviewed with the minor in the

3 minor’s preferred language, and whether the placement decision continues to meet

4 ORR criteria. U.F. ¶¶ 58-59. And if a UAC has resided in a secure or residential-

5 treatment-center facility for more than 90 days, ORR requires the federal field

6 specialist to consult with supervisory ORR staff about the reasons for the continued

7 placement. J.S. ¶ 86.

8

Given ORR’s extensive procedures for determining whether a child in ORR

9 care should be stepped up to a more restrictive setting, and the multiple levels of

10 review that ORR provides UACs to challenge placement decisions, “the risk of an

11 erroneous deprivation of such interest through the procedures used” is low.

12 Mathews, 424 U.S. at 334. There is no genuine dispute of material fact that the

13 probability of step-up to a more restrictive facility for any individual UAC is

14 exceedingly low, particularly when compared to children in domestic child-welfare

15 systems. See U.F. ¶¶ 98-103; J.S. ¶ 91. In fiscal year 2020 (through June 2020),

16 only 56 out of 14,421 placements were to secure settings (0.39%). U.F. ¶¶ 98, 101.

17 Even when UACs in residential treatment centers are included, the percentage of

18 UACs in ORR care who have been stepped up is 0.55%: through June 2020 (80 out

19 of 14,421 placements). U.F. ¶¶ 98, 100-01. And even when UACs in staff-secure

20 facilities are included, the percentage of UACs who have been stepped up is only

21 1.6%: through June 2020 (236 out of 14,421 placements). U.F. ¶¶ 98, 99-101. This

22 is compared to a step-up rate of approximately 14 percent for children in the

23 domestic child-welfare context. U.F. ¶ 103; Dr. Ryan Expert Report ¶ 35 (“one

24 would likely conclude, as I do, that stepping UAC up to more secure settings is not

25 overused”). Thus, the risk of erroneous deprivation based on ORR step-up decisions

26 is very low.

27

Further, of the small fraction of children in ORR care who are stepped up, the

28 overwhelming majority are stepped up only after more than two months in shelter

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1 care (86%), indicating that shelter staff and ORR work to accommodate the needs

2 of children before placing them in a more restrictive facility. See U.F. ¶ 104. Of the

3 named Plaintiffs, only one, Jaime D., was stepped up to a secure facility, and that

4 happened only after he told shelter staff that he was a gang member and had

5 murdered 4 people in his home country on their behalf—a placement decision with

6 which both the third-party case coordinator and the federal field specialist concurred.

7 See U.F. ¶¶ 114-17. Importantly, Jaime D. was stepped back down within about 30

8 days after he recanted those statements, showing that ORR’s robust review process

9 was both responsive and efficient. See U.F. ¶¶ 119-22. And as noted above, of the

10 named Plaintiffs who were stepped up to a residential treatment center, all were

11 stepped up only at the authorization of a qualified medical professional, and only

12 after a recommendation was made by the third-party case coordinator and shelter

13 staff, and approved by ORR. See U.F. ¶¶ 109, 125, 130-32, 140, 143-46. These

14 undisputed facts further confirm that the risk of erroneous deprivation under ORR’s

15 current procedures is low. See U.F. ¶ 79.

16

The “probable value, if any, of additional or substitute procedural safeguards,”

17 Mathews, 424 U.S. at 335, is also low, particularly given that ORR already provides

18 UACs what Plaintiffs claim that due process requires: notice and an opportunity to

19 be heard within 30 days of step-up. See Compl. ¶ 122 (“Due process requires that

20 ORR give Plaintiffs and their proposed class members meaningful notice and an

21 opportunity to be heard before it places them in RTCs, medium-secure or secure

22 facilities and an ongoing review with commensurate protections every thirty days.”).

23 Although Plaintiffs identify a number of procedures that ORR allegedly does not

24 provide, including “an opportunity to present evidence and witnesses” and “the right

25 to counsel” (Compl. ¶ 124), they do not contend that due process requires these other

26 procedures, or that they are asking the Court to order those specific procedures. See

27 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“All causes of action alleged in

28 an original complaint which are not alleged in an amended complaint are waived.”).

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1 Thus, any claim for procedures beyond notice and an opportunity to be heard within

2 30 days of step-up are not properly before the Court.

3

Indeed, the Court’s certified class definition makes no mention of these other

4 procedures, as it comprises only “minors in ORR custody pursuant to 6 U.S.C.

5 section 279 and/or 8 U.S.C. section 1232 who are or will be placed in a secure

6 facility, medium-secure facility, or RTC, or whom ORR has continued to detain in

7 any such facility for more than 30 days, without being afforded notice and an

8 opportunity to be heard before a neutral and detached decisionmaker regarding the

9 grounds for such placement . . . .” Order at 27. And as explained, ORR satisfies the

10 relief set forth in the class definition, providing minors numerous opportunities to

11 be heard before a neutral and detached decisionmaker within 30 days of step-up.

12 Any additional procedures Plaintiffs might seek are outside the class definition and

13 beyond the scope of this case. See Al Otro Lado, Inc. v. McAleenan, 423 F.Supp.3d

14 848, 878 (S.D. Cal. 2019) (holding that “the scope of the injunctive relief is limited

15 by the class definition”). In any event, the probable value of such additional

16 procedures is very low. The second Mathews factor strongly favors Defendants.

17

c. The government’s interest

18 The final Mathews factor, the government’s interest, also strongly favors
19 Defendants and, when balanced against the other factors, confirms that Defendants
20 are entitled to judgment as a matter of law. ORR, acting in loco parentis, has an
21 interest in each UAC’s welfare as the child’s custodian and in the safety and well-
22 being of other children in its care. Congress prescribed by statute ORR’s interest
23 regarding all children in its care when it directed ORR to consider children’s safety
24 when making placement decisions: “In making such placements, the Secretary may
25 consider danger to self, danger to the community, and risk of flight.” 8 U.S.C.
26 § 1232(c)(2)(A). To promote the safety of all children in its care, ORR must be able
27 to place children in appropriate settings, promptly and without undue delay, to avoid
28

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1 serious harm to the child and others in ORR’s care. U.F. ¶¶ 41-43, 75-78. As

2 explained, ORR’s robust procedures already minimize the risk of erroneous

3 deprivation; any additional procedures would delay ORR’s ability to provide needed

4 care and services. And “[n]ormally when children are stepped up, particularly to a

5 secure juvenile detention, but also to staff-secure, there is already considerable

6 evidence that their behaviors are problematic, and time is of the essence. Any delay

7 in moving them . . . would put the children themselves at risk, other minors, and

8 staff.” Antkowiak Declaration ¶ 33; U.F. ¶¶ 77-78; see also Dr. Lubit Expert Report,

9 ¶ 3(b) (“When UACs pose a threat to the health and safety of themselves or others,

10 and the UACs cannot be maintained safely in a less restrictive setting, the UACs

11 should go to a higher level of care. Delaying step-ups to RTCs in these situations is

12 contrary to acceptable practice because serious avoidable harm could occur during

13 the period of delay.”). Further, the financial burden on ORR in providing the

14 additional procedures that Plaintiffs seek would be substantial. In contrast with

15 DHS, which has approximately 1,100 attorneys and 350 support personnel funded

16 by congressional appropriations to represent DHS in administrative proceedings,

17 ORR has traditionally funded only two dedicated attorneys, so any appreciable

18 increase in administrative hearings would massively burden the agency. U.F. ¶ 80.

19 Accordingly, the third Mathews strongly favors Defendants as well.

20

d. Balance of Mathews factors

21

In sum, the balance of Mathews factors conclusively favors Defendants. First,

22 the step-up class’s asserted liberty interests have limited force: (1) the TVPRA and

23 Flores Settlement do not create a protected liberty interest because they do not

24 mandate any particular outcome or procedures for placing UACs in restrictive

25 settings; and (2) Plaintiffs’ interest in being free from unnecessary physical restraints

26 is weaker in the ORR setting than in other juvenile-detention or involuntary

27 commitment settings because UACs in ORR custody have multiple paths to obtain

28 release from a restrictive placement. Second, the risk of erroneous deprivation under

32 Memorandum in Support of Motion for Summary Judgment

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1 ORR’s procedures is low, as is the probable value of mandating additional

2 procedures. UACs in ORR care have multiple avenues to challenge placement

3 decisions, and ORR already provides step-up class members with notice and an

4 opportunity to be heard within 30 days. UACs receive notice of the reasons for their

5 placement within 48 hours, and UACs can challenge their placements at a bond

6 hearing or in federal court. U.F. ¶¶ 54, 63, 65; J.S. ¶¶ 76, 83. UACs placed in secure

7 and residential-treatment-center facilities also can seek an administrative hearing

8 within 30 days before a three-member panel, and separately seek direct review by

9 the ORR Director. U.F. ¶¶ 64, 67. Such placements are also reviewed at least every

10 30 days by the federal field specialist, case coordinator, and case manager, and are

11 separately reviewed by an ORR monitoring group within the same timeframe. U.F.

12 ¶¶ 58, 60. Third, ORR’s interest in being able to make prompt placement decisions

13 without unnecessary delay is substantial and outweighs the probable value of

14 imposing additional procedures that will delay needed care and treatment and

15 consume government resources without significantly reducing the likelihood of an

16 erroneous deprivation. ORR’s procedures for stepping up children in its care to more

17 restrictive settings thus fully comport with due process, and Defendants are entitled

18 to judgment as a matter of law on Plaintiffs’ step-up claim.

19

3) ORR’s policies and procedures for the step-up class comport with the

20

TVPRA and the APA.

21

ORR’s policies and procedures for the step-up class also satisfy the TVPRA

22 and APA as a matter of law. First, ORR’s step-up policies and procedures comport

23 with the TVPRA. Plaintiffs’ claim that ORR’s “policy and practice individually and

24 collectively violate” TVPRA § 235(c)(2)(A) is just their procedural-due-process

25 claim recast as a purported statutory violation. Compl. ¶ 184. Plaintiffs

26 acknowledge that the TVPRA does not articulate a right to additional procedures to

27 contest placement, but only mandates a review of secure placements every 30 days—

28 which Defendants already provide. See Compl. ¶ 119. Rather, what Plaintiffs claim

33 Memorandum in Support of Motion for Summary Judgment

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1 is that the TVPRA creates a liberty interest in being placed in the “least restrictive

2 setting,” and that procedural due process therefore requires the imposition of the

3 additional procedural remedies they might seek. See Compl. ¶ 118. But as explained

4 above, ORR’s thorough procedures satisfy due process, balancing important child-

5 welfare considerations with safety, while also providing UACs with notice and a

6 meaningful opportunity to be heard within 30 days. Second, ORR’s policies and

7 procedures for the step-up class also comport with the APA. Compl. ¶ 184.

8 Plaintiffs make no independent claim under the APA beyond their procedural-due-

9 process claim, which fails for the reasons described above, and the relief they seek

10 under the APA is the same as the relief they seek on their due-process claim—notice

11 and an opportunity to be heard. Further, like the TVPRA, the APA does not

12 separately impose additional procedural requirements on ORR placement decisions.

13 Thus, Plaintiffs’ step-up claims under the TVPRA and APA fail as a matter of law.

14 B. Defendants Are Entitled to Judgment as a Matter of Law on the Unfit-

15

Custodian Class’s Claim.

16

The Court should grant summary judgment on the unfit-custodian class’s

17 claim that ORR’s procedures for making release decisions are unlawful because

18 ORR does not provide a timely, meaningful opportunity to be heard when ORR

19 delays or denies release to potential sponsors. Compl. ¶¶ 179-81. Plaintiffs’ unfit-

20 custodian claim is barred by res judicata. And ORR’s policies and procedures for

21 this class satisfy due process and other legal requirements as a matter of law.

22

1) The unfit-custodian claim is barred by res judicata.

23

The Court should grant summary judgment for Defendants on the unfit-

24 custodian claim because the claim——including the purported statutory aspects of

25 their claim that simply replicate their due-process challenge—is barred by res

26 judicata. Their claim that due process requires the imposition of additional

27 procedures to challenge release decisions was conclusively resolved in Flores.

28

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1

As noted above, claim preclusion requires: (1) identity of claims; (2) a final

2 judgment on the merits; and (3) privity between the parties. Harris, 682 F.3d at

3 1132. The second and third requirements are clearly satisfied here. The Flores

4 Settlement is a final judgment. See supra Part A. And there is privity between the

5 parties: the unfit-custodian class comprises all UACs in ORR custody “whom ORR

6 is refusing or will refuse to release to parents or other available custodians within 30

7 days of the proposed custodian’s submission of a complete family reunification

8 packet on the ground that the proposed custodian is or may be unfit.” Order at 27.

9 The unfit-custodian class is therefore a subset of the Flores class—“‘[a]ll minors

10 who are detained in the legal custody of the INS’” (¶ 10).

11

There is also identity of claims. All four factors for assessing identity of

12 claims favor that conclusion. See Howard, 871 F.3d at 1039. First, rights established

13 under the Flores Settlement would be destroyed or impaired by the unfit-custodian

14 claim. The Flores Settlement, in resolution of Plaintiffs’ due process claim, sets

15 forth procedures governing release for all UACs in ORR care. These procedures

16 include that ORR must avoid “unnecessary delay” (¶ 14) and must “record” its

17 release efforts (¶ 18). Neither paragraph contains any requirement that ORR provide

18 a hearing for class members who remain in custody more than thirty days.

19 Mandating different or additional procedures for the unfit-custodian class beyond

20 those provided in the Flores Settlement would therefore impair or destroy rights

21 established under the Settlement. See Costantini v. Trans World Airlines, 681 F.2d

22 1199, 1201 (9th Cir. 1982) (“[T]he doctrine of res judicata (or claim preclusion)

23 ‘bar(s) all grounds for recovery which could have been asserted, whether they were

24 or not, in a prior suit between the same parties . . . on the same cause of action.’”)

25 (internal citations omitted).

26

Second, the two actions involve substantially the same evidence. Again, this

27 is articulated in the Settlement: “Plaintiffs have filed this action against Defendants,

28 challenging, inter alia, the constitutionality of Defendants’ policies, practices and

35 Memorandum in Support of Motion for Summary Judgment

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1 regulations regarding the . . . release of unaccompanied minors.” Settlement at 3

2 (emphasis added). To assess whether to release a minor to a potential sponsor, ORR

3 conducts a suitability analysis, which may include consideration of various factors

4 outlined in ¶ 17 of the Settlement, such as the living conditions and the standard of

5 care the UAC would receive with the proposed sponsor. The additional hearings

6 that Plaintiffs now request here would involve reconsidering substantially the same

7 evidence that would apply in an enforcement action under the Flores Settlement.

8

Third, the two suits involve infringement of the same right—an asserted due-

9 process right to contest ORR’s decisions regarding release. Significantly, the Flores

10 Settlement did not include an internal administrative appeal process; rather, the

11 parties in Flores agreed that ORR must avoid “unnecessary delay” and must

12 “record” its release efforts (¶¶ 14, 18), which the parties agreed satisfied the

13 requirements of due process to resolve the suit, which was brought on due-process

14 grounds. The Settlement also sets forth a procedure for the UAC’s attorney to

15 contact a “juvenile coordinator” to “investigate” any case where “Plaintiffs’ counsel

16 have reasonable cause to believe a minor . . . should have been released” (¶ 28B).

17 Plaintiffs now seek different procedures under the same procedural-due-process

18 theory to protect their asserted right to challenge ORR’s release decisions. See

19 Compl. ¶ 110 (noting that “in all fifty states and their subdivisions . . . allegations of

20 unfitness” are “tested via trial-like procedures and any ensuing finding of

21 unsuitability . . . be based on competent evidence”). But the alleged right is the same

22 in both actions.

23

Finally, the two actions arise out of the same transactional nucleus of facts.

24 Both Flores and the unfit-custodian class’s claim ask the Court to address what

25 procedures due process requires for decisions regarding whether to release a UAC

26 from government custody and reunify the UAC with a potential sponsor. As

27 explained, the Flores Settlement sets forth specific criteria for sponsor assessments

28 (¶ 17) and specific requirements the government must follow in making

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1 reunification decisions (¶ 18). The Settlement also expressly states that it “sets out

2 nationwide policy for the detention, release, and treatment of minors in the custody

3 of the INS” in order to resolve the due-process claims raised in the original Flores

4 complaint regarding release (¶ 9). Thus, both Flores and this case arise out of the

5 same transactional nucleus of facts, and Plaintiffs’ claim that due process requires

6 additional procedures for the unfit-custodian class is barred by res judicata.

7

Plaintiffs contend that the Flores Settlement does not expressly address what

8 procedures apply when ORR declines to release a UAC because of questions

9 regarding a potential sponsor’s suitability. See Compl. ¶ 105 (“[N]either the Flores

10 Settlement nor the TVPRA prescribe what process is due where ORR unreasonably

11 prolongs a juvenile’s detention or refuses to release him or her because ORR

12 questions whether an available parent or other potential custodian is capable of

13 providing for the child’s physical and mental well-being.”). But that does not change

14 the res judicata analysis. As explained, ¶¶ 14, 17, and 18 of the Flores Settlement

15 set forth the procedures that apply to release decisions, and ¶ 28B sets forth a

16 procedure for the child’s attorney to seek further review of a release decision. The

17 Flores Plaintiffs could have negotiated a process for challenging such decisions as

18 they did for step-up decisions (¶¶ 21-24), and did not do so. Indeed, Plaintiffs had

19 unsuccessfully sought these same procedures in Reno v. Flores, 507 U.S. at 308-09

20 prior to entering the Settlement. Thus, to the extent that Plaintiffs allege that the

21 procedures they agreed to in the Flores Settlement are insufficient to satisfy due

22 process, such an allegation is barred because res judicata “bars litigation in a

23 subsequent action of any claims that were raised or could have been raised in the

24 prior action.” Western Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th

25 Cir. 1997) (emphasis added). Plaintiffs’ apparent dissatisfaction with the bargain

26 they struck in Flores does not allow them to bring the same claims in subsequent

27 litigation to seek a different result.

28

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1

2) ORR’s policies and procedures for the unfit-custodian class satisfy

due process as a matter of law.

2

3

The Court should also grant summary judgment for Defendants on the unfit-

4 custodian class’s due-process claim because ORR’s policies and procedures for

5 release decisions satisfy due process as a matter of law. The governing factors—the

6 private interests at stake, the risk of erroneous deprivation, and the government’s

7 interest, Mathews, 424 U.S. at 335—establish that ORR’s policies and procedures

8 for the unfit-custodian class satisfy the requirements of procedural due process.

9

a. Private interests

10

Plaintiffs allege that children in ORR care have three protected liberty

11 interests that are affected by ORR’s release decisions: (1) a statutory interest under

12 the TVPRA and related contractual interest under the Flores Settlement to be placed

13 in the least restrictive setting; (2) an interest in being free from government custody;

14 and (3) an interest in family unity or family association. Compl. ¶¶ 103-07. These

15 interests have limited weight as applied to ORR release decisions and are decisively

16 outweighed by the other Mathews factors.

17

To start, Plaintiffs claim a liberty interest in release because the TVPRA

18 provides that UACs must be placed “in the least restrictive setting that is in the best

19 interest of the child,” 8 U.S.C. § 1232(c)(2)(A). See Compl. ¶ 104 (alleging that the

20 TVPRA “requires ORR to ‘promptly’ place detained children ‘in the least restrictive

21 setting that is in the best interest of the child,’ generally, with ‘a suitable family

22 member”). But that provision of the TVPRA concerns the level of restrictiveness of

23 the facility in which a minor is placed, and not when they are released. Immediately

24 after the language quoted by Plaintiffs, the statute reads: “In making such

25 placements, the Secretary may consider danger to self, danger to the community, and

26 risk of flight.” 8 U.S.C. § 1232(c)(2)(A) (emphasis added). Although the provision

27 later refers to the availability of a “suitable family member,” it does so in the context

28 of placement decisions—not release—for a particular subcategory of UACs (child

38 Memorandum in Support of Motion for Summary Judgment

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1 trafficking victims), and even then does not require placement with family members.

2 See id. (“Placement of child trafficking victims may include placement in an

3 Unaccompanied Refugee Minor program, pursuant to section 412(d) of the

4 Immigration and Nationality Act (8 U.S.C. § 1522(d)), if a suitable family member

5 is not available to provide care.”). Thus, the TVPRA does not impose an affirmative

6 obligation on ORR to expeditiously release UACs to potential sponsors, nor does it

7 create procedural rights for UACs to contest the denial of release.

8

Indeed, the TVPRA provision applicable to release decisions provides broad

9 discretion to the Secretary. It provides that “an unaccompanied alien child may not

10 be placed with a person or entity unless the Secretary of Health and Human Services

11 makes a determination that the proposed custodian is capable of providing for the

12 child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A) (emphasis

13 added). And the TVPRA sets only a minimum standard for release: “Such

14 determination shall, at a minimum, include verification of the custodian’s identity

15 and relationship to the child, if any, as well as an independent finding that the

16 individual has not engaged in any activity that would indicate a potential risk to the

17 child.” Id. The TVPRA thus contains no “explicitly mandatory language” imposing

18 a maximum timeframe for when release decisions must be made, nor does it provide

19 “specific directives to the decisionmaker” that if release does not occur within a set

20 timeframe, “a particular outcome must follow.” Thompson, 490 U.S. at 462-63.

21 Rather, the TVPRA entrusts release determinations to ORR’s discretion and

22 expertise to ensure the safety and well-being of UACs in ORR custody and care. See

23 Hayward, 603 F.3d at 560 (holding that because parole is a discretionary, predictive

24 decision, it does not create a protected liberty interest). Thus, Plaintiffs’ claimed

25 liberty interest in release under the TVPRA fails.

26

Plaintiffs’ asserted liberty interest under the Flores Settlement in release also

27 fails. As explained, supra Part A, Plaintiffs may not seek injunctive relief to rewrite

28 a settlement they negotiated to include additional procedures they never bargained

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1 for. And even if they could, there is no additional liberty interest created by the

2 Flores Settlement. As with the TVPRA, the Flores Settlement contains no

3 “explicitly mandatory language” regarding release decisions that provides that when

4 “substantive predicates are present, a particular outcome must follow.” Thompson,

5 490 at 463. Paragraph 14 provides that “the INS shall release a minor from its

6 custody without unnecessary delay,” but the phrase “without unnecessary delay” is

7 broad and permissive, does not mandate a particular set of procedures, and is cabined

8 by Paragraph 17, which gives the agency wide discretion to conduct a “positive

9 suitability assessment” prior to release. Hayward, 603 F.3d at 560. Thus, the Flores

10 Settlement also does not create a protected liberty interest in release.

11

Second, Plaintiffs’ asserted liberty interest in being free from government

12 custody is also, at most, limited. To start, the Court in Reno v. Flores has already

13 held that there is no substantive-due-process right for children to be in a “non-

14 custodial” setting, and that any procedural-due-process argument for a hearing is

15 merely “the substantive due process argument recast in procedural terms.” 507 U.S.

16 at 302-03, 306; see also Santos v. Smith, 260 F. Supp. 3d 598, 611-12 (W.D. Va.

17 2017) (framing the constitutional issue not as a right of the minor to live outside a

18 state-licensed facility, but rather, as a “familial right to be raised and nurtured by . .

19 . parents”). Further, Plaintiffs’ claimed liberty interest in freedom from government

20 custody is limited by their lack of lawful immigration status and apprehension at the

21 border between ports of entry. See Demore v. Kim, 538 U.S. 510, 521-22 (2003);

22 U.F. ¶ 4. As the Supreme Court has emphasized, “the Constitution gives the political

23 department of the government plenary authority to decide which aliens to admit, and

24 a concomitant of that power is the power to set the procedures to be followed in

25 determining whether an alien should be admitted.” DHS v. Thuraissigiam, 140 S.

26 Ct. 1959, 1982 (2020) (internal quotations and citations omitted). Here, Congress

27 created a detailed scheme for the UAC program, and determined not to create an

28

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1 administrative appeal process for ORR decisions regarding the suitability of

2 applicant sponsors. Such an appeal process is precisely what Plaintiffs now seek.

3

Finally, Plaintiffs’ asserted liberty interest in family unity has limited weight

4 as applied to the unfit-custodian class. The relationships between the named

5 Plaintiffs and their proposed sponsors vary substantially. Only one named Plaintiff,

6 Sirena P., had a proposed sponsor who is a parent, and she is not a class

7 representative for the unfit-custodian class. Order at 28. Neither of the class

8 representatives for the unfit-custodian class, Lucas R. and Gabriela N., had a parent

9 as a proposed sponsor. U.F. ¶¶ 106, 111, 134, 139. And to the extent that Plaintiffs

10 assert a liberty interest in family unity with “other available custodians” who are not

11 close relatives, a parent, or a legal guardian (Order at 27), their asserted interest fails

12 as a matter of law. In Reno v. Flores, the Supreme Court explained that “[w]here a

13 juvenile has no available parent, close relative, or legal guardian, where the

14 government does not intend to punish the child, and where the conditions of

15 governmental custody are decent and humane, such custody surely does not violate

16 the Constitution.” 507 U.S. at 303. This is because retaining custody to preserve

17 and promote the child’s welfare is “rationally connected” to a legitimate government

18 interest. Id. Thus, to the extent that Plaintiffs claim a protected liberty interest in

19 family unity (or reunification) with distant relatives or unrelated adult individuals,

20 Reno v. Flores forecloses that claim. And given the substantially varied

21 relationships between the named Plaintiffs and their proposed sponsors, Plaintiffs’

22 assertion that they have a general liberty interest “in preserving their family unity

23 and the ability for their family to care for them, and in family association” has limited

24 weight. Compl. ¶¶ 106-07.

25

To the extent that Plaintiffs assert a substantive-due-process right to family

26 unity, that claim also fails as a matter of law. As a preliminary matter, the unfit-

27 custodian class includes members who have no available parent, close relative, or

28 legal guardian. See Order at 27 (class includes UACs “whom ORR is refusing or

41 Memorandum in Support of Motion for Summary Judgment

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1 will refuse to release to parents or other available custodians”). UACs in ORR

2 custody are also held in humane conditions at state licensed grantee facilities (U.F.

3 ¶¶ 8, 10-11). Thus, finding a substantive-due-process right to family unity for the

4 entire certified class would contravene the Supreme Court’s holding in Reno v.

5 Flores. 507 U.S. at 303 (“We are unaware, however, that any court—aside from the

6 courts below—has ever held that a child has a constitutional right not to be placed

7 in a decent and humane custodial institution if there is available a responsible person

8 unwilling to become the child’s legal guardian but willing to undertake temporary

9 legal custody.”).

10

Further, although “the interest of parents in the care, custody, and control of

11 their children” has been recognized as a “fundamental liberty interest[ ],” Troxel v.

12 Granville, 530 U.S. 57, 65 (2000), that right is qualified, and in most cases, “the

13 constitutionality of state actions that interfere with family integrity depends on the

14 adequacy of the procedures available to contest them.” D.B. v. Cardall, 826 F.3d

15 721, 741 (4th Cir. 2016). And in the context of immigration proceedings, the Fourth

16 Circuit recently held that there is no “substantive due process right to family unity

17 in the context of immigration detention pending removal.” Reyna as next friend of

18 J.F.G. v. Hott, 921 F.3d 204, 210 (4th Cir. 2019). Thus, to the extent that Plaintiffs

19 assert that ORR’s policies and practices regarding release violate a substantive-due-

20 process right to family unity, that claim fails. Compl. ¶ 181; see, e.g., Payne-

21 Barahona v. Gonzales, 474 F.3d 1, 3 (1st Cir. 2007) (“[D]eportations of parents are

22 routine and do not of themselves dictate family separation. If there were such a right,

23 it is difficult to see why children would not also have a constitutional right to object

24 to a parent being sent to prison or, during periods when the draft laws are in effect,

25 to the conscription of a parent for prolonged and dangerous military service”);

26 Gallanosa v. United States, 785 F.2d 116, 120 (4th Cir. 1986) (“The courts of

27 appeals that have addressed this issue have uniformly held that deportation of the

28 alien parents does not violate any constitutional rights of the citizen children.”);

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1 Cortez–Flores v. INS, 500 F.2d 178, 180 (5th Cir. 1974) (“[D]eportation of a parent

2 does not deprive the child of any constitutional rights.”); Newton v. INS, 736 F.2d

3 336, 342 (6th Cir. 1984) (stating that courts of appeals have “uniformly” held that

4 the deportation of parents does not deprive their children of constitutional rights);

5 Flores–Quezada v. Gonzales, 134 F. App’x 202, 203 (9th Cir. 2005) (unpublished)

6 (holding that deportation does not result in deprivation of due process where a child

7 would be denied the Arizona constitutional right to education); Robles v. INS, 485

8 F.2d 100, 102 (10th Cir. 1973) (rejecting the argument that it is unconstitutional to

9 break up a family and deprive children of “their constitutional right to a continuation

10 of the family unit”).

11

b. Risk of erroneous deprivation

12

The second Mathews factor— “[t]he risk of an erroneous deprivation of such

13 interest through the procedures used, and the probable value, if any, of additional or

14 substitute procedural safeguards,” 424 U.S. at 335—likewise favors the government.

15 ORR provides robust processes that safeguard the welfare of children in its care

16 while also affording children and potential sponsors continuous opportunities to

17 provide information in favor of release and sponsorship.

18

First, ORR’s release process is a collaborative endeavor that acts as a

19 significant safeguard against erroneous and arbitrary decisionmaking. U.F. ¶¶ 24,

20 79. The federal field specialist, case manager, and case coordinator (a

21 nongovernmental third-party reviewer) all work together in making release decisions

22 and meet weekly to discuss the status of each child’s case. U.F. ¶¶ 24-25, 27, 29;

23 J.S. ¶¶ 94-95. The case coordinator provides an independent evaluation of whether

24 a child should be released to a potential sponsor, and case managers and federal field

25 specialists can elevate the concerns of sponsors up the chain, ultimately to the

26 Deputy Director of the Division of Policy and Procedure. U.F. ¶¶ 25, 29; J.S. ¶¶ 7-

27 10. ORR has also implemented numerous child-welfare policies to promote timely

28 release, including immediately searching for a potential sponsor upon the child’s

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1 arrival, and performing concurrent sponsor vetting when there is more than one

2 potential sponsor. U.F. ¶¶ 20-23. Lastly, ORR supervisors regularly monitor the

3 work of federal field specialists and coordinate with staff on any matters related to

4 release that require additional supervision or oversight. U.F. ¶ 26. As one child

5 welfare expert testified, “But you’re presuming that ORR doesn’t have checks and

6 balances. What I see here is a great deal of concern about doing home studies, about

7 contacting sponsors, about vetting sponsor, about having reviews of who the sponsor

8 is. . . . I think that those are - - that’s a very appropriate process in order to ensure

9 that release of the child to a situation where you can be at least assured that you made

10 every effort possible to ensure that that child will be safe once [they are] out of your

11 care.” Dr. Earner Dep. 146:23-147:14; U.F. ¶ 24.

12

Second, ORR provides multiple opportunities for potential sponsors to be

13 heard. Case managers are required to communicate regularly with potential sponsors

14 and other relevant individuals in formulating release recommendations. U.F. ¶ 28.

15 Potential sponsors and children are able to present their side of the story and to share

16 any information they believe would place their case for sponsorship in the best

17 possible light with the case manager, the home study provider (when applicable),

18 and ORR. U.F. ¶¶ 17-18, 28, 30, 33. ORR requires case managers to engage the

19 potential sponsor throughout the process, explain the process to them, and invite the

20 potential sponsor to participate, freely ask questions, and submit any additional

21 information for consideration—including information that could mitigate any

22 potential concerns. U.F. ¶¶ 22, 28, 30, 33.

23

Third, ORR provides a process for appealing denial decisions: “The

24 parent/legal guardian may seek an appeal of the ORR Director’s denial decision by

25 submitting a written request to the Assistant Secretary for Children and Families

26 within 30 business days of receipt of the final decision from the ORR Director.” J.S.

27 ¶¶ 21-29. The parent or legal guardian may request either a written appeal or a

28 hearing, and “[a]ny evidence submitted to the Assistant Secretary by ORR is shared

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1 with the requester in compliance with privacy protections.” J.S. ¶¶ 21, 26. UACs

2 can also seek judicial review of their continued custody in federal court. U.F. ¶ 63.

3

Given ORR’s extensive, collaborative process for assessing potential sponsors

4 and the multiple opportunities for review of denial decisions, “the risk of an

5 erroneous deprivation” under ORR’s current procedures is very low. See U.F. ¶ 124.

6 Further, there is no genuine dispute of material fact that, excluding data from April

7 and May 2020 distorted by the COVID-19 pandemic, length of stay for UACs in

8 ORR care has been consistently brief. U.F. ¶ 95. From June 2019 through March

9 2020, the average length of stay was less than two months (48.4 days). U.F. ¶ 96.

10 Even including the outlier months of April and May 2020, the average length of stay

11 was only 54 days. U.F. ¶ 97. In cases where children are in ORR case for longer

12 lengths of time, both a review conducted by expert witnesses of case files the parties

13 negotiated in discovery, and consistent testimony from ORR headquarter staff, case

14 managers, and federal field specialists, show that release delays are generally not

15 attributable to tardiness on the part of ORR, but rather a UAC’s lack of a sponsor or

16 unresponsiveness from potential sponsors. U.F. ¶ 34. For comparison, in the foster-

17 care context, in states where a guardian who is related to a foster child needs to be

18 licensed to accept the child, it can take up to 6 months to place a child with the

19 relative. See, e.g., http://icpcstatepages.org/california/licensingcertificationapproval

20 (in California, foster parents who are relatives of the child must be licensed, and the

21 process can take 3-6 months). Indeed, as a further safeguard, ORR-contracted

22 facilities have no financial incentive to keep children in care longer than appropriate

23 because they are paid on a funded capacity basis regardless of how many or long

24 minors remain in care. U.F. ¶ 7.

25

The experiences of the only two named Plaintiffs who are class

26 representatives for the unfit-custodian class, Gabriela N. and Lucas R., see Order 28,

27 confirm that delays in release are not normally attributable to arbitrary or dilatory

28 decision-making on ORR’s part. Neither representative’s potential sponsor is a

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1 parent or legal guardian. U.F. ¶¶ 106, 111, 134, 139. Gabriela N.’s potential

2 sponsor, her grandfather, had never been her primary caregiver, had not seen her in

3 14 years, had a serious medical condition, did not timely provide exonerating

4 evidence of a kidnapping charge from his home country, and received a negative

5 recommendation from a TVPRA-mandated home study. U.F. ¶¶ 134-38. Lucas R.’s

6 potential sponsor, his sister, had left their home country only a year before he did,

7 had another non-relative adult living in her home who would not come in for

8 fingerprinting (contrary to ORR policy), and similarly received a negative

9 recommendation from a TVPRA-mandated home study. U.F. ¶¶ 19, 106-08. These

10 undisputed facts confirm that Plaintiffs do not face a “risk of an erroneous

11 deprivation” under ORR’s current procedures.

12

The value of additional procedures is also low. As one child-welfare expert

13 writes, “[I]f only one clinical staff member were responsible for making the release

14 or placement decision, or if individual children’s cases were not reviewed on a

15 regular basis, I would favor additional safeguards to ensure that placements and

16 transfers reflected sound clinical practice. Yet, as discussed above, each child’s case

17 is jointly reviewed on a regular basis by a team of program staff and supervisors in

18 consultation with ORR federal representatives.” Dr. Ryan Expert Report ¶ 46; U.F.

19 ¶ 79. Thus, “it is unclear what problem would be solved by injecting additional

20 requirements of consulting with a child’s legal representative at any instance that a

21 potential step-up or step-down, or release was under consideration.” Id.; see also

22 Expert Report of Dr. Earner, ¶ 30, p. 9 (“The proposal for a quasi-judicial ‘fair’

23 hearing would do nothing to further the safety of the UAC. Hearings are court-like

24 processes that create an adversarial environment and only prolong the length of time

25 that UAC spend in care.”).

26

Indeed, it is unclear from Plaintiffs’ complaint what alternative procedures

27 they even seek. Plaintiffs claim that they “are informed and believe that in all fifty

28 states and their subdivisions, children may not be detained for want of a qualified

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1 custodian without affording them and/or their parents or other potential custodians

2 a prompt hearing before a judge or other neutral and detached decisionmaker, during

3 which allegations of unfitness are tested via trial-like procedures and any ensuing

4 finding of unsuitability must be based on competent evidence.” Compl. ¶ 110.6 But

5 they do not clarify whether they are seeking “trial-like procedures” for UACs in

6 ORR custody, what that means, or whether they are claiming that due process entitles

7 them to such “trial-like procedures.” Plaintiffs also claim that ORR fails to “afford[ ]

8 detained minors or their proposed custodians a timely, prompt, or meaningful

9 opportunity to be heard regarding such custodians’ fitness.” Id. ¶ 180. But they do

10 not identify any specific procedures they are denied other than “a meaningful

11 opportunity to be heard,” which, as explained, ORR already provides. Accordingly,

12 to the extent that Plaintiffs assert that additional procedures are required beyond a

13 meaningful opportunity to be heard, any such claim is waived. King, 814 F.2d at

14 567 (“All causes of action alleged in an original complaint which are not alleged in

15 an amended complaint are waived.”).

16

Further, as with the step-up class, the scope of relief for the unfit-custodian

17 class is “limited by the class definition.” Al Otro Lado, 423 F.Supp.3d at 878. Based

18 on Plaintiffs’ complaint, the Court certified a class of “all minors in ORR custody

19 pursuant to 6 U.S.C. section 279 and/or 8 U.S.C. section 1232 whom ORR is

20 refusing or will refuse to release to parents or other available custodians within 30

21 days of the proposed custodian’s submission of a complete family reunification

22 packet on the ground that the proposed custodian is or may be unfit.” Order at 27-

23 28. So any additional procedures Plaintiffs may seek that go beyond a “meaningful

24

25 6 Further, unlike domestic foster care, ORR does not remove children from their 26 current custodians; rather, ORR places them with such custodians in the first
instance after the child arrives unaccompanied. U.F. ¶¶ 4-5. Thus, ORR makes an 27 affirmative determination the custodian is able to provide for the child’s physical
28 and mental well-being, and not a finding that the custodian is unfit and the child should be removed. U.F. ¶ 2; J.S. ¶ 5.

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1 opportunity to be heard” after 30 days are outside the class definition and thus

2 beyond the scope of available relief.

3

c. The government’s interest

4 The final Mathews factor, the government’s interest, also heavily favors the
5 government. ORR has its own statutorily prescribed interest in child welfare, and
6 acts in loco parentis to protect UACs’ interests in safety and permanency. Congress
7 codified ORR’s interest at 8 U.S.C. § 1232(c)(3)(A), mandating that “an
8 unaccompanied alien child may not be placed with a person or entity unless the
9 Secretary of Health and Human Services makes a determination that the proposed
10 custodian is capable of providing for the child’s physical and mental well-being.”
11 Congress further directed that “[s]uch determination shall, at a minimum, include
12 verification of the custodian’s identity and relationship to the child, if any, as well
13 as an independent finding that the individual has not engaged in any activity that
14 would indicate a potential risk to the child.” Id. Congress did not impose any similar
15 mandate that ORR speedily release children in its care, although ORR seeks to
16 timely release UACs. U.F. ¶ 1. Further, the potential risks to children from release
17 to a sponsor who has not been adequately evaluated are significant. Indeed, the
18 TVPRA was enacted in response to child-trafficking concerns. U.F. ¶¶ 4-7. The
19 government’s interest in safe release is also heightened by the fact that, unlike
20 domestic child welfare agencies, ORR does not maintain custody of the child after
21 release. U.F. ¶ 12. And again, the financial burden on ORR in staffing more
22 hearings would be substantial. U.F. ¶¶ 35, 80. ORR thus has a strong interest both
23 in avoiding the burden and delay of unnecessary additional procedures, and in
24 efficiently directing its resources to ensure the safe and prompt release of children
25 in its care to suitable sponsors. See U.F. ¶¶ 2-6; Expert Report of Dr. Earner ¶ 31
26 (“Screening potential sponsors of UACs is a serious child safety issue. Safety cannot
27 be sacrificed for speed of release of a UAC.”); id. ¶ 32 (“For UACs who may have
28

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1 no viable sponsor, or a sponsor claiming a distant or vague relationship, the question

2 then becomes one of whether the UAC is being trafficked for some other purpose.”).

3

d. Balance of Mathews factors

4

The balance of Mathews factors weighs conclusively in the government’s

5 favor. First, the unfit-custodian class’s asserted liberty interests are limited. The

6 TVPRA and Flores Settlement do not create a liberty interest in release. Plaintiffs’

7 asserted interest in family unity is already limited in the immigration custody

8 context, and such an interest carries even less weight here given the widely varying

9 relationships between the Plaintiffs and their potential sponsors. Second, the risk of

10 erroneous deprivation under ORR’s current procedures is low, as is the probable

11 value of more procedures. UACs and potential sponsors already have multiple

12 opportunities to present their case for release, and ORR’s release procedures involve

13 multiple levels of review and oversight. U.F. ¶¶ 24-32. Case managers and federal

14 field specialists can elevate the concerns of sponsors, and supervisors regularly

15 monitor the cases of the federal field specialists under them. U.F. ¶¶ 24-25.

16 Plaintiffs do not explain how additional procedures would increase the accuracy of

17 ORR’s sponsor suitability assessments. Finally, ORR’s statutorily-mandated

18 interest in safely placing children with approved sponsors is substantial. See U.F.

19 ¶¶ 3-6. The balance of these factors conclusively establishes that ORR’s existing

20 procedures satisfy due process as a matter of law. The Court should therefore grant

21 summary judgment for Defendants on the unfit-custodian class’s due-process claim.

22

3) ORR’s policies and procedures for the unfit-custodian class comport

23

with the TVPRA, the APA, and the First Amendment.

24

ORR’s policies and procedures for the unfit-custodian class also satisfy the

25 TVPRA, the APA, and the First Amendment as a matter of law.

26

First, ORR’s policies and procedures for release comport with the TVPRA.

27 Plaintiffs’ claim that ORR’s “policy and practice individually and collectively

28 violate . . . TVPRA § 235(c)(2)(A)” (Compl. ¶ 181) is again simply their flawed

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1 procedural-due-process claim recast as an alleged statutory violation. The TVPRA

2 does not specify any procedures for challenging ORR’s release decisions, which

3 Plaintiffs acknowledge. Id. ¶ 105; 8 U.S.C. § 1232(c). And, as explained, to the

4 extent that Plaintiffs raise a procedural-due-process claim based upon a claimed

5 liberty interest in the TVPRA, the TVPRA gives rise to no such interest. But even

6 if the TVPRA did, ORR’s robust procedures satisfies procedural due process,

7 balancing the need to safeguard the welfare of children in its care while affording

8 both children and potential sponsors continuous opportunities to provide information

9 in favor of sponsorship, thereby minimizing the risk of erroneous deprivation. Thus,

10 ORR’s release policies and procedures satisfy the TVPRA as a matter of law.

11

Second, ORR’s policies and procedures for the unfit-custodian class also

12 comport with the APA. Compl. ¶ 181. Plaintiffs similarly make no independent

13 claim under the APA beyond their procedural-due-process claim, which fails for the

14 reasons described above, and the relief they request under the APA is the same as

15 the relief they request on their due-process claim—an opportunity to contest the

16 denial of release to any potential sponsor. Further, like the TVPRA, the APA does

17 not separately impose additional procedural requirements on ORR release decisions.

18 The unfit-custodian class’s APA claim fails as a matter of law.

19

Third, to the extent that the unfit-custodian class asserts a claim under the

20 Freedom of Association Clause of the First Amendment, that claim fails. See Compl.

21 ¶ 106. The First Amendment protects a person’s right to associate with others so as

22 to protect the person’s right to engage in group activities like speech, that are

23 themselves protected under the First Amendment. Dawson v. Delaware, 503 U.S.

24 159, 163 (1992); see also IDK, Inc. v. Clark Cty., 836 F.2d 1185, 1193 (9th Cir.

25 1988). The First Amendment right of association also protects the right to band

26 together to pursue a common goal. See Boy Scouts of America v. Dale, 530 U.S.

27 640, 647-48 (2000). Nothing in the complaint alleges that class members have been

28 prevented by ORR from associating with others to exercise other First Amendment

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1 rights. Plaintiffs also have not alleged that they are part of any group that has been

2 prevented by ORR from pursuing a common goal. Rather, their First Amendment

3 claim is simply their substantive-due-process claim to family unity recast under the

4 First Amendment. See Compl. ¶ 116 (“The government’s refusing to release

5 children to their parents’ custody, or to the custody of adult siblings and other family

6 members . . . violates the freedom of association clause of the First Amendment.”).

7 That claim fails for the reasons described above.

8

Thus, Plaintiffs’ unfit-custodian claims under the TVPRA, the APA, and the

9 First Amendment fail as a matter of law.

10 C. 11 12

Defendants Are Entitled to Judgment as a Matter of Law on the LegalRepresentation Class’s Claim.
Finally, the Court should grant summary judgment for Defendants on

13 Plaintiffs’ claim that ORR unlawfully prevents access to lawyers from representing

14 class members in proceedings involving ORR decisions on custody, placement,

15 release, and medication. Compl. ¶¶ 188-90. The legal-representation class’s claim

16 is barred by res judicata. And Defendants’ procedures on legal representation of

17 UACs satisfy due process and other legal requirements as a matter of law.

18

1) The legal-representation class’s claim is barred by res judicata.

19

The legal-representation class’s claim—including the purported statutory

20 aspects of their claim that simply replicate their due-process challenge—is barred by

21 res judicata. Flores conclusively resolved their claim that due process requires the

22 imposition of additional procedures for legal representation. As explained, claim

23 preclusion requires: (1) identity of claims; (2) a final judgment on the merits; and

24 (3) privity between the parties. Harris, 682 F.3d at 1132. The Flores Settlement is

25 a final judgment. See supra Part A. And there is privity between the parties. The

26 legal-representation class comprises minors “to whom ORR is impeding or will

27 impede legal assistance in legal matters or proceedings involving their custody,

28 placement, release, and/or administration of psychotropic drugs.” Order at 28. This

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1 class is a subset of the Flores class, which comprises “[a]ll minors who are detained

2 in the legal custody of the INS” (¶ 10).

3

There is also identity of claims. All four factors of the Howard test support

4 that conclusion. First, Plaintiffs’ claimed right to access counsel—in particular, the

5 right to access representation by ORR-funded legal service providers to challenge

6 ORR decisions on placement, release, and medication (Compl. ¶ 148)—would

7 impair rights and obligations established under the Flores Settlement. The Flores

8 Settlement expressly provides, consistent with due process, that UACs must be

9 provided with information regarding their “right to be represented by counsel at no

10 expense to the government” (Ex. 1, ¶ 14) (emphasis added). The Settlement also

11 states that ORR is to provide UACs a “list of free legal services available in the

12 district pursuant to INS regulations (unless previously given to the minor)” (¶ 24D).7

13 The second and third factors—whether the two actions involve substantially the

14 same evidence and infringement of the same right—also favor finding an identity of

15 claims. Both Flores and this case involve the same claimed right to access counsel

16 and the same evidence regarding whether the government must facilitate such access

17 for UACs wishing to challenge their “detention, release, and treatment.” Compare

18 Settlement ¶ 9 (“This Agreement sets out nationwide policy for the detention,

19 release, and treatment of minors in the custody of the INS . . .”) with Compl. ¶ 189

20 (seeking legal access “involving ORR’s decisions regarding custody, release,

21 medication, and placement”). Finally, the fourth factor—whether the two actions

22 arise out of the same transactional nucleus of facts—also favors finding identity of

23 claims. Both cases involve the services ORR must provide UACs on legal

24 representation while in government care and custody. Plaintiffs could have

25 negotiated a right to access counsel for purposes of challenging ORR decisions

26 7 When class counsel tried to assert a right to government-funded counsel in Flores, 27 the Court deemed that claimed right to be “extracontractual”—i.e., not protected 28 under the Flores Settlement. See Flores v. Sessions, No. 85-cv-4544, ECF No. 470
at 5-6 (July 30, 2018).
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1 regarding “detention, release, and treatment” as part of the Flores Settlement, but

2 did not do so. Thus, Plaintiffs’ legal-representation claim is barred by res judicata.

3 See Western Radio, 123 F.3d at 1192 (res judicata “bars litigation in a subsequent

4 action of any claims that were raised or could have been raised in the prior action”)

5 (emphasis added). To the extent that Plaintiffs claim that the procedures they

6 negotiated in Flores are not being followed, they should seek relief under Flores.

7

2) ORR’s policies and procedures for the legal-representation class

8

satisfy due process as a matter of law.

9

The Court should also grant summary judgment for Defendants because

10 ORR’s policies and procedures regarding legal representation for UACs satisfy due

11 process as a matter of law.

12

On the first Mathews factor, Plaintiffs lack a constitutionally protected interest

13 in attorneys (government-funded or not) to formally appear to contest routine ORR

14 decision-making regarding placement, release, and medication (Compl. ¶ 148). Cf.

15 J.E.F.M. v. Lynch, 837 F.3d 1026, 1038 (9th Cir. 2016) (rejecting minors’ claim “to

16 government-provided counsel as a matter of constitutional and statutory right”);

17 Perez-Funez v. Dist. Dir., INS, 619 F. Supp. 656, 665 (C.D. Cal. 1985) (the court is

18 “by no means ruling that unaccompanied minors have a right to appointed counsel.

19 The case law clearly forecloses such a finding.”). Further, neither the HSA nor the

20 TVPRA contain “mandatory language” that would create a liberty interest. Carver,

21 558 F.3d at 874-75. The TVPRA directs ORR to “ensure, to the greatest extent

22 practicable and consistent with section 292 of the Immigration and Nationality Act

23 (8 U.S.C. § 1362), that all unaccompanied alien children who are or have been in the

24 custody of [HHS] . . . have counsel to represent them in legal proceedings or matters

25 and protect them from mistreatment.” 8 U.S.C. § 1232(c)(5). The statute pertains

26 to pro bono legal services: “To the greatest extent practicable, the Secretary of

27 Health and Human Services shall make every effort to utilize the services of pro

28 bono counsel who agree to provide representation to such children without charge.”

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1 Id. The language “to the greatest extent practicable” and that ORR make “every

2 effort to utilize . . . pro bono counsel” does not mandate that any “particular outcome

3 must follow,” nor does it create a protected liberty interest in a right to access

4 representation to challenge ORR decisions. Similarly, the HSA’s directive to HHS

5 to “develop[ ] a plan to be submitted to Congress on how to ensure that qualified and

6 independent legal counsel is timely appointed to represent the interest of each

7 [UAC],” 6 U.S.C. § 279(b)(1)(A), does not mandate a “particular outcome” and thus

8 does not create a constitutionally protected liberty interest. Finally, the Flores

9 Settlement does not create a protected liberty interest in access to counsel to

10 challenge routine ORR decisions. The Ninth Circuit has held that the “right to retain

11 counsel conferred by [a] consent decree is not itself a protected liberty interest.”

12 Smith, 994 F.2d at 1407. So Plaintiffs’ legal-representation claim fails at the outset.

13

On the second Mathews factor, the risk of erroneous deprivation is low in

14 children not being informed of available pro bono legal immigration services. Upon

15 entering ORR custody, the facility must give the UAC a Legal Resource Guide—

16 which includes a form for requesting a Flores bond hearing—and read the contents

17 of the form to the child in a language the child understands. U.F. ¶ 81. The Legal

18 Resource Guide contains a state-by-state listing of attorneys and legal service

19 providers. Id. UACs in ORR custody also receive a free legal consultation with

20 licensed attorneys through an ORR-funded legal-service contract. Id.; J.S. ¶¶ 97-98.

21 Upon a UAC’s admission to ORR care, legal service providers are required to

22 provide a know-your-rights presentation and individualized legal screening to the

23 UAC for possible immigration relief. U.F. ¶ 81. Though ORR’s legal-service

24 contract funds only certain types of assistance related to immigration proceedings,

25 legal service providers may assist UACs with other matters using non-ORR funds.

26 U.F. ¶¶ 88-91, 93-94; J.S. ¶ 99. UACs in ORR custody can also access legal services

27 through other funding or through pro bono counsel, and ORR does not discourage

28 attorneys from representing UACs in ORR custody, does not refuse to work with

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1 such attorneys, and does not reduce funding for attorneys with ORR legal services

2 contracts who also provide other assistance to UACs. U.F. ¶¶ 81, 90, 93-94. ORR’s

3 policies and procedures also require that attorneys representing UACs have

4 unlimited telephone access to their clients, and ORR instructs care providers to

5 provide regular updates to counsel and to provide meeting places between UACs

6 and their attorneys. U.F. ¶¶ 86-87. ORR also encourages all potential sponsors to

7 attend a legal orientation provided by the care-provider facilities to further inform

8 them of possible free legal immigration services for the child. U.F. ¶¶ 82-84. The

9 risk of erroneous deprivation under these procedures is low, particularly given the

10 absence of any constitutionally protected liberty interest related to ORR-funded legal

11 representation, and Plaintiffs cannot show that additional procedures would

12 meaningfully reduce any risk of error.

13

Plaintiffs also cannot point to any evidence that ORR “blocks” access to

14 counsel. None of the four class representatives—Lucas R., Jaime D., Daniela

15 Marisol T., and Gabriela N.—has offered any evidence supporting their legal-

16 representation claim. All four class representatives were provided screenings for

17 legal relief, legal rights presentations, and a list of pro bono legal service providers

18 while in ORR custody, and met with attorneys of record or a child advocate. U.F.

19 ¶¶ 105, 110, 113, 118, 124, 126-28, 133, 141. During discovery, each of these

20 Plaintiffs was asked to “[i]dentify and describe the factual circumstance of each

21 instance since January 2017 in which you claim Defendants blocked Vera Institute

22 lawyers from representing you regarding custody, medication, placement, or release

23 from ORR custody.” U.F. ¶¶ 112, 123, 129, 142. Each Plaintiff simply replied,

24 “Plaintiff answers that he [or she] was not privy, and accordingly can neither identify

25 nor describe, the factual circumstances in which Defendants blocked Vera Institute

26 lawyers from representing [them] regarding custody, medication, placement, or

27 release from ORR custody. Plaintiff further answers that to the best of his [or her]

28 knowledge and recollection no lawyer ever represented him [or her] with respect to

55 Memorandum in Support of Motion for Summary Judgment

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1 custody, medication, placement, or release at any time while he was in ORR

2 custody.” Id. Such bare assertions without any supporting evidence do not create a

3 genuine issue of material fact. McSherry, 584 F.3d at 1138 (to demonstrate a

4 genuine issue of material fact, a party must rely on facts, not unsupported assertions).

5

Other discovery likewise has not uncovered any factual support for Plaintiffs’

6 allegations on the legal-representation class. The deposition testimony of the

7 attorneys who submitted declarations on behalf of Plaintiffs in support of the legal-

8 representation class shows that the class’s claims rest almost entirely on hearsay and

9 speculation. Lorilei Williams, a former ORR legal service provider contracted

10 through the Vera Institute of Justice, admitted that to her knowledge, Vera had never

11 denied funding to a legal-service provider on the basis that the provider, or one of

12 its attorneys, brought an action against ORR. Williams Dep. 96:20-97:2; U.F. ¶ 94.

13 Megan Stuart, another attorney with a Vera-funded legal-service provider, testified:

14 “Q. Did anyone at Vera tell you that you could not advocate for a child? A. No. I

15 never—I was—I had no occasion to interact with Vera.” Stuart Dep. 75:10-13; U.F.

16 ¶ 90. And Justin Mixon, the third attorney with a Vera-funded legal-service

17 provider, testified: “Q. You state that Vera at the behest of the ORR [sic] blocks the

18 majority of the qualified and available representatives from children affirmed by

19 ORR’s custody and placement decisions? A. Yeah. I’m not in the room when ORR

20 negotiates the contract with Vera.” Mixon Dep. 154:2-8; U.F. ¶ 90.

21

The final Mathews factor, the government’s interest, also decisively favors the

22 government. The TVPRA does not require ORR to provide UACs a right to access

23 representation from ORR-funded legal service providers to challenge routine

24 decisionmaking, and ORR designates legal-representation resources for other UAC

25 services. See U.F. ¶ 92. Mandating access to ORR-funded legal representation to

26 challenge ORR placement, release, and medication decisions would thus divert

27 valuable program resources currently used to connect children with legal service

28

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1 providers for other purposes (such as seeking immigration relief) and used to fund

2 other essential activities, such as care and placement of children. Id.

3

Thus, the balance of Mathews factors conclusively favors Defendants.

4 Plaintiffs do not have a constitutionally protected interest in government-funded

5 legal counsel to challenge ORR decisions on placement, release, and medication.

6 There is no evidence that Plaintiffs face a risk of erroneous deprivation under

7 existing procedures for connecting UACs with counsel, or that mandating more

8 procedures would meaningfully reduce any minimal risk that does exist. And the

9 government’s interest in soundly allocating its resources to meet other program

10 needs is substantial. The legal-representation class’s due-process claim thus fails as

11 a matter of law, and the Court should grant summary judgment for Defendants on

12 the claim.

13

3) ORR’s policies and procedures for the legal-representation class

14

comport with the TVPRA, the HSA, Title 8, and the APA.

15

ORR’s policies and procedures for the legal-representation class satisfy the

16 requirements of the TVPRA, the HSA, Title 8, and the APA as a matter of law.

17 Plaintiffs allege that these statutes and associated regulations “generally guarantee

18 Plaintiffs and their proposed class members the right to be represented by retained

19 and pro bono counsel in proceedings before U.S. Citizenship and Immigration

20 Services and the Executive Office for Immigration Review.” Compl. ¶ 144.

21 Plaintiffs further allege that “[l]egal proceedings involving ORR’s custody, release,

22 placement, and medication decisions, including hearings pursuant to paragraph 24A

23 of the Flores Settlement, are ‘legal proceedings or matters’ within the meaning of

24 the TVPRA § 235(c)(5).” Id. ¶ 149. These arguments lack merit: such a right is not

25 articulated in any of the statutes or regulations that Plaintiffs cite. The Court should

26 therefore reject the claim that ORR’s policies and procedures “violate . . . the

27 TVPRA § 235(c)(5), HSA § 279(b)(A) [sic], 8 C.F.R. §§ 287.3(c), 1003.62,

28 1240.10(a)(2) and 1292.1 et seq. [collectively, the federal immigration regulations

57 Memorandum in Support of Motion for Summary Judgment

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1 under Title 8],” and the APA, as applied to the legal-representation class. Compl.

2 ¶ 190.

3

First, Plaintiffs’ claim under the TVPRA fails, as the TVPRA nowhere

4 specifies a right to access government-funded counsel to challenge routine ORR

5 decision-making. The TVPRA instructs ORR to “ensure, to the greatest extent

6 practicable and consistent with section 292 of the Immigration and Nationality Act

7 (8 U.S.C. § 1362), that all unaccompanied alien children who are or have been in the

8 custody of [HHS] . . . have counsel to represent them in legal proceedings or matters

9 and protect them from mistreatment.” 8 U.S.C. § 1232(c)(5). Section 292 of the

10 INA in turn provides that “[i]n any removal proceedings before an immigration

11 judge and in any appeal proceedings before the Attorney General from any such

12 removal proceedings, the person concerned shall have the privilege of being

13 represented (at no expense to the Government) by such counsel, authorized to

14 practice in such proceedings, as he shall choose.” 8 U.S.C. § 1362 (emphasis added).

15 These provisions do not create a general right to access government-funded counsel

16 to challenge routine ORR decisions, such as step-up, release, and medication.

17 Rather, these provisions impose an obligation on ORR to connect UACs with pro

18 bono counsel in their immigration proceedings. And as explained, ORR’s policies

19 and procedures on legal representation satisfy this obligation, as ORR works to

20 ensure “to the greatest extent practicable” that UACs are able to access such

21 representation. U.F. ¶ 81. Thus, Plaintiffs’ claim that ORR’s policies and practices

22 on legal representation violate the TVPRA fails as a matter of law.

23

To the extent that Plaintiffs claim that challenges to routine ORR decision-

24 making on release, step-up, and the administration of psychotropic medication are

25 “legal proceedings” covered under subsection (c)(5) of the TVPRA, such a claim

26 conflicts with a plain reading of the statute, its legislative history, and congressional

27 appropriations. To start, the TVPRA plainly states that it must be applied “consistent

28 with” section 292 of the INA (8 U.S.C. § 1362), and that provision addresses access

58 Memorandum in Support of Motion for Summary Judgment

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1 to counsel in “removal proceedings.” Further, such a reading contravenes the

2 TVPRA’s legislative history. One of the main sponsors of the TVPRA, Senator

3 Diane Feinstein, introduced the finalized bill as follows: “This trafficking bill

4 includes a provision I authored over 8 years ago—the Unaccompanied Alien Minor

5 Act . . . . The bill also provides for pro bono legal representation for unaccompanied

6 alien children in their immigration matters . . . .” 154 Cong. Rec. S10, 886-87 (daily

7 ed. Dec. 10, 2008). Finally, congressional appropriations show that Congress

8 intended to fund only access to immigration services. For the current fiscal year

9 2020, Congress set aside not less than $160 million for three areas: legal services,

10 child advocates, and post-release services. See Further Consolidated Appropriations

11 Act, 2020, Pub. L. 116-94, Division A, Title II, 133 Stat. 2570. Statements of the

12 House Appropriations Committee Chairwoman, Chairwoman DeLauro, further

13 show that this funding is designated for assisting children in obtaining representation

14 in immigration proceedings: “[L]egal counsel for unaccompanied children increases

15 the efficiency and effectiveness of immigration proceedings and significantly

16 reduces the failure-to-appear rate of children who are released from HHS custody.”

17 H.R. Rep. 116-62, 144-45, 116th Congress, 1st Sess. (May 15, 2019).

18

Read in context, the TVPRA addresses legal representation in immigration

19 removal proceedings, not the day-to-day decisions that Plaintiffs characterize as

20 “legal proceedings.” And ORR has never considered challenges to step-up, release,

21 and medical care to be legal matters or proceedings under the TVPRA. J.S. ¶ 99.

22 On Plaintiffs’ view, any day-to-day custodial decision could become a “legal

23 proceeding,” including educational services, recreational activities, and routine

24 medical care. Plaintiffs provide no basis for this sweeping view of the statute, which

25 was intended to “provide[ ] for pro bono legal representation for unaccompanied

26 alien children in their immigration matters.” 154 Cong. Rec. S10, 886-87.

27

Second, Plaintiffs’ claim under the HSA fails. Like the TVPRA, the HSA

28 does not create a right to access government-funded counsel to challenge ORR

59 Memorandum in Support of Motion for Summary Judgment

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1 decisions on step-up, release, and medication. Section 279(b)(1)(A) of the HSA

2 directs ORR to “develop[ ] a plan to be submitted to Congress on how to ensure that

3 qualified and independent legal counsel is timely appointed to represent the interests

4 of each such [unaccompanied alien] child,” but does not require ORR to provide

5 access to government-funded legal representation in these matters.

6

Third, Plaintiffs’ claim fails under federal immigration regulations, including

7 8 C.F.R. §§ 287.3(c), 1003.62, 1240.10(a)(2), and 1292.1 et seq. Those regulations

8 generally provide arriving aliens with the opportunity to retain their own counsel in

9 proceedings before U.S. Citizenship and Immigration Services and the Executive

10 Office for Immigration Review, but make no mention of legal representation in ORR

11 custody to contest other decisions unrelated to immigration relief, nor do they

12 require access to government-funded counsel.

13

Finally, ORR’s policies and procedures for the legal-representation class

14 comport with the APA. Plaintiffs make no independent claim under the APA beyond

15 their procedural-due-process claim, which fails for the reasons described, and the

16 relief they seek under the APA is the same relief they seek on their due-process

17 claim—access to government-funded legal counsel to challenge ORR decisions on

18 step-up, release, and medication. In addition, like the TVPRA, HSA, and federal

19 immigration regulation provisions discussed above, the APA does not separately

20 impose a right to access government-funded counsel.

21

The legal-representation class’s claims under all these statutes fail as a matter

22 of law.

23 VI. Conclusion 24
The Court should grant summary judgment for Defendants on the step-up, 25
unfit-custodian, and legal-representation class’s claims. 26

27

28

60 Memorandum in Support of Motion for Summary Judgment

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1 Dated: October 2, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Counsel for Defendants 21 22 23 24 25 26 27 28

Respectfully submitted,
JEFFREY B. CLARK Acting Assistant Attorney General
SCOTT G. STEWART Deputy Assistant Attorney General
ERNESTO H. MOLINA Deputy Director
CHRISTOPHER A. BATES Senior Counsel to the Assistant Attorney General
/s/ W. Daniel Shieh W. DANIEL SHIEH BENJAMIN M. MOSS Senior Litigation Counsel
NANCY K. CANTER JONATHAN K. ROSS ANTHONY J. MESSURI Trial Attorneys Office of Immigration Litigation United States Department of Justice P.O. Box 878 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-9802 Email: Daniel.Shieh@usdoj.gov

61 Memorandum in Support of Motion for Summary Judgment

 
 Case 2:18-cv-05741-DMG-PLA Document 269-1 Filed 10/02/20 Page 1 of 73 Page ID #:9137

1 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW
2 CARLOS R. HOLGUÍN (90754) 256 South Occidental Boulevard
3 Los Angeles, CA 90057 Telephone: (213) 388-8693
4 Email: crholguin@centerforhumanrights.email

5 Attorneys for Plaintiffs

6 Additional counsel listed on following pages 7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 LUCAS R., et al.,

13

Plaintiffs,

14

v.

15 ALEX AZAR, et al.,

16

Defendants.

17

Case No. 2:18-CV-05741 DMG PLA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Date: Time: Place:

Dec. 11, 2020
3:00 p.m. Courtroom 8C, 8th Floor

18 Complaint Filed: June 29, 2018

19

Pretrial Conference Date: March 2, 2021

20

Trial Date: March 30, 2021

Judge: Hon. Dolly M. Gee

21

22

23

24

25

26

27

28
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1 HOLLY S. COOPER (197626)

Co-Director, Immigration Law Clinic

2 CARTER C. WHITE (164149)

Director, Civil Rights Clinic

3 DAISY O. FELT (307958)

JONATHAN P. MULLIGAN (CAL RLSA NO. 803383)

4 MONICA J. JULIAN (265075)

University of California Davis School of Law

5 One Shields Ave. TB 30

Davis, CA 95616

6 Telephone: (530) 754-4833

Email: hscooper@ucdavis.edu

7

ccwhite@ucdavis.edu

dofelt@ucdavis.edu

8

jmulligan@ucdavis.edu

mjulian@ucdavis.edu

9

NATIONAL CENTER FOR YOUTH LAW

10 LEECIA WELCH (208741)

NEHA DESAI (CAL. RLSA NO. 803161)

11 POONAM JUNEJA (300848)

FREYA PITTS (295878)

12 MISHAN WROE (299296)

MELISSA ADAMSON (319201)

13 1212 Broadway, Suite 600

Oakland, CA 94612

14 Telephone: (510) 835-8098

Email: lwelch@youthlaw.org

15

ndesai@youthlaw.org

pjuneja@youthlaw.org

16

fpitts@youthlaw.org

mwroe@youthlaw.org

17

madamson@youthlaw.org

18 NATIONAL CENTER FOR YOUTH LAW BRENDA SHUM (ADMITTED PRO HAC VICE)
19 CRYSTAL ADAMS (308638) 1313 L St. NW, Suite 130
20 Washington, DC 20005 Telephone: (202) 868-4785
21 Email: bshum@youthlaw.org cadams@youthlaw.org
22

23

24

25

26

27

28
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1 COOLEY LLP

SUMMER J. WYNN (240005)

2 MICHAEL J. MCMAHON (ADMITTED PRO HAC VICE)

REBECCA L. TARNEJA (293461)

3 ALEXANDRA R. MAYHUGH (300446)

JAYME B. STATEN (317034)

4 1333 2nd Street, Suite 400

Santa Monica, CA 90401

5 Telephone: (310) 883-6400

Facsimile: (310) 883-6500

6 Email: swynn@cooley.com

mmcmahon@cooley.com

7

rtarneja@cooley.com

amayhugh@cooley.com

8

jstaten@cooley.com

9 Attorneys for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

TABLE OF CONTENTS

2
3 4 I. 5 II.
6
7
8
9

Page
INTRODUCTION ............................................................................................1 PROCEDURAL AND FACTUAL BACKGROUND .......................................3 A. Procedural Background...........................................................................3 B. Determining Custodians’ Fitness (First Claim for Relief) .......................4
1. ORR’s policies regarding custodial vetting. ..................................5 2. ORR’s policies regarding custodial vetting lack basic
procedural protections...................................................................7

10

C. Restrictive Placement (Second Claim for Relief) ....................................8

11

1. ORR’s policies regarding restrictive placement. .........................13

12

2. ORR’s policies regarding restrictive placement lack basic

13

procedural protections.................................................................15

D. Obstructing Legal Assistance in Matters Relating to Release,

14

Placement, and Medication (Fourth Claim for Relief)...........................15

15

E. Plaintiffs Suffered Real and Substantial Harm as a Result of

Defendants’ Policies .............................................................................18

16

III. LEGAL STANDARD.....................................................................................19 17

IV. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON

18

THEIR FIRST AND SECOND CLAIMS FOR RELIEF ................................19

19

A. Plaintiffs Have Protected Liberty Interests Vested by the

20

Constitution, the TVPRA, and the FSA.................................................20

21

B. ORR’s Policies Lack Even Minimal Due Process .................................24

C. ORR’s Policies Fail to Provide a Hearing as Required Under the

22

APA ...................................................................................................... 26

23

D. Mathews v. Eldridge Also Entitles Plaintiffs to Procedural

24

Safeguards. ...........................................................................................28

1. ORR’s custodial vetting policies and procedures are

25

constitutionally inadequate under Mathews.......................28

26

a. Plaintiffs’ interests are substantial...........................28

27

28

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Page

b. Plaintiffs have been prejudiced by ORR’s erroneous deprivations of liberty in its release decisions and the value of additional safeguards is undisputable. .......................................................29 (i) ORR’s failure to provide adequate notice and an opportunity to be heard harms Plaintiffs’ interests. .......................................29 (ii) ORR’s failure to apply clear standards for determining custodial fitness harms Plaintiffs’ interests. .......................................32 (iii) ORR’s failure to provide for prompt release harms Plaintiffs’ interests..................33 (iv) ORR’s failure to provide counsel to challenge release denials harms Plaintiffs’ interests. .......................................34 (v) ORR’s failure to provide interpreters harms Plaintiffs’ interests..............................35 (vi) ORR’s failure to afford due process runs contrary to prevailing state and federal child welfare practices. .................................35
c. Plaintiffs’ liberty interests far outweigh the government’s interest..............................................37
2. ORR’s restrictive placement policies and procedures are constitutionally inadequate..........................................38 a. Plaintiffs’ interests are substantial...........................38 b. Plaintiffs have been prejudiced by ORR’s erroneous deprivations of liberty in its step-up and step-down decisions and the value of additional safeguards is undisputable. .....................39 (i) ORR’s failure to provide Class Members adequate notice and an opportunity to be heard harms Plaintiffs’ interests. ...................40 (ii) ORR’s failure to articulate clear standards to initially place, step-up, or step-down children harms Plaintiffs’ interests.........................................................45

MEM. ISO MOT.

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1

TABLE OF CONTENTS

(continued)

2

Page

3

4

(iii) ORR’s failure to provide counsel to challenge restrictive placements harms

5

Plaintiffs’ interests. .......................................46

6

(iv) ORR’s failure to provide automatic hearings before a neutral factfinder

7

harms Plaintiffs’ interests..............................46

8

(v) ORR’s failure to provide interpreters harms Plaintiffs’ interests..............................48

9

(vi) ORR’s failure to provide periodic

10

hearings on placement decisions harms Plaintiffs’ interests. .......................................48

11

(vii) ORR’s failure to afford adequate due

12

process protections runs contrary to prevailing state and child welfare

13

practices. ....................................................... 49

14

c. Plaintiffs’ liberty interests far outweigh the government’s interest..............................................51

15 V. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON

16

THEIR FOURTH CLAIM FOR RELIEF .......................................................52

17

A. The TVPRA Grants Plaintiffs a Comprehensive Right to Counsel........53

18

B. Plaintiffs Are Entitled to Counsel as a Matter of Due Process...............54

19

C. ORR Violates Plaintiffs’ Right to Counsel by Denying Effective Assistance of Counsel ...........................................................................55

20

D. ORR Unlawfully Bars Legal Service Providers from Using Federal

21

Funding to Represent Children with Respect To Release, Placement, and Administration of Psychotropic Medication .................56

22 VI. PLAINTIFFS ARE ALSO ENTITLED TO SUMMARY JUDGMENT

23

ON THEIR FIRST, SECOND, AND FOURTH CLAIMS FOR RELIEF UNDER THE APA.........................................................................................57

24 VII. PLAINTIFFS ARE ENTITLED TO A PERMANENT INJUNCTION...........58

25 VIII. CONCLUSION ..............................................................................................59

26

27

28
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1

TABLE OF AUTHORITIES

2

Page

3 Cases

4 Aageson Grain & Cattle v. U.S. Dep’t of Agric., 5 500 F.3d 1038 (9th Cir. 2007)...............................................................................27

6 Addington v. Texas,

7

441 U.S. 418 (1979)........................................................................................ 21, 45

8 Amoco Production Co. v. Gambell, 480 U.S. 531 (1987)..............................................................................................58
9

10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..............................................................................................19

11

Aristotle P. v. Johnson,

12

721 F. Supp. 1002 (N.D. Ill. 1989)........................................................................22

13 ASSE Int’l, Inc. v. Kerry,
14 803 F.3d 1059 (9th Cir. 2015)......................................................................... 26, 57

15 Atterbury v. U.S. Marshals Serv., 16 941 F.3d 56 (2d Cir. 2019)....................................................................................57

17 Augustin v. Sava,

18

735 F.2d 32 (2d Cir. 1984)....................................................................................35

19 Beltran v. Cardall,

20

222 F. Supp. 3d 476 (E.D. Va. 2016) .............................................................passim

21 Bismullah v. Gates, 514 F. 3d 1291 (D.D.C. 2008)...............................................................................40
22

23

Boumediene v. Bush, 553 U.S. 723 (2008)........................................................................................ 24, 40

24

Bowman Transp. v. Arkansas Best Freight Sys.,

25

419 U.S. 281 (1974)..............................................................................................25

26 Carver v. Lehman, 27 558 F.3d 869 (9th Cir. 2009)........................................................................... 20, 23

28
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1

TABLE OF AUTHORITIES (continued)

2

Page

3

Celotex Corp. v. Catrett,

4

477 U.S. 317 (1986)..............................................................................................19

5 Ching v. Mayorkas, 6 725 F.3d 1149 (9th Cir. 2013)...............................................................................22

7 D.B. v. Cardall, 8 826 F.3d 721 (4th Cir. 2016)..................................................................... 22, 30, 34

9 Diouf v. Napolitano,

10

634 F.3d 1081 (9th Cir. 2011)...............................................................................48

11 Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981)......................................................................... 25, 47
12

13 E.J. v. Templeton, No. 3:16-cv-01975, 2017 WL 2080182 (M.D. Tenn. May 15, 2017) ....................40

14

Flores v. Barr,

15

No. 2:85-cv-04544-DMG-AGR (C.D. Cal. Apr. 10, 2020) .....................................2

16 Flores v. Barr,
17 No. CV 85-4544-DMG, 2020 WL 2758798 (C.D. Cal. Apr. 10, 2020) .................33

18 Flores v. Sessions, 19 862 F.3d 863 (9th Cir. 2017).................................................................................53

20 Flores v. Sessions,

21

No. 2:85-cv-4544-DMG (C.D. Cal. July 30, 2018) ................................... 24, 33, 53

22 Flores-Chavez v. Aschcroft,

23

362 F.3d 1150 (9th Cir. 2004)...............................................................................37

24 Foucha v. Louisiana, 504 U.S. 71 (1992).................................................................................... 21, 28, 38
25

26

In re Gault, 387 U.S. 1 (1967)...................................................................................... 41, 42, 44

27

28
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1

TABLE OF AUTHORITIES (continued)

2

Page

3

Goldberg v. Kelly,

4

397 U.S. 254 (1970).................................................................................. 25, 52, 54

5 Greene v. McElroy, 6 360 U.S. 474 (1959)..............................................................................................26

7 Gutknecht v. United States, 8 396 U.S. 295 (1970)..............................................................................................46

9 Hamdi v. Rumsfeld,

10

542 U.S. 507 (2004)..............................................................................................25

11 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017).................................................................................21
12

13 Hicks v. Comm’r of Soc. Sec., 909 F.3d 786 (6th Cir. 2018)........................................................................... 25, 26

14

Hubbart v. Knapp,

15

379 F.3d 773 (9th Cir. 2004).................................................................................45

16 INS v. St. Cyr,
17 533 U.S. 289 (2001)..............................................................................................54

18 J.D.B. v. North Carolina, 19 564 U.S. 261 (2011)..............................................................................................54

20 J.E.C.M. v. Lloyd,

21

352 F. Supp. 3d 559 (E.D. Va. 2018) .............................................................. 22, 37

22 Jie Lin v. Ashcroft,

23

377 F.3d 1014 (9th Cir. 2004)...............................................................................54

24 Johns v. Cty. of San Diego, 114 F.3d 874 (9th Cir. 1997).................................................................................54
25

26

Kansas v. Hendricks, 521 U.S. 346 (1997)..............................................................................................25

27

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1

TABLE OF AUTHORITIES (continued)

2

Page

3

Kelly v. R.R. Ret. Bd.,

4

625 F.2d 486 (3d Cir. 1980)..................................................................................56

5 L.V.M. v. Lloyd, 6 318 F. Supp. 3d 601 (S.D.N.Y. 2018) ............................................................. 32, 45

7 Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 8 452 U.S. 18 (1981)................................................................................................37

9 Logan v. Zimmerman Brush Co.,

10

455 U.S. 422 (1982)........................................................................................ 26, 30

11 Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977)...............................................................................26
12

13 Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800 (9th Cir. 2004).................................................................................42

14

Mathews v. Eldridge,

15

424 U.S. 319 (1976).......................................................................................passim

16 McQuillion v. Duncan,
17 306 F.3d 895 (9th Cir. 2002).................................................................................20

18 Melendres v. Arpaio, 19 695 F.3d 990 (9th Cir. 2012).................................................................................59

20 Moore v. City of East Cleveland,

21

431 U.S. 494 (1977)..............................................................................................22

22 Morrisey v. Brewer

23

408 U.S. 471 (1972)..............................................................................................46

24 Mosley v. St. Louis Southwestern Railway, 634 F.2d 942 (5th Cir. 1981).................................................................................56
25

26

Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144 (9th Cir. 2012)...............................................................................19

27

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1

TABLE OF AUTHORITIES (continued)

2

Page

3

Padilla v. Immigration & Customs Enf’t,

4

953 F.3d 1134 (9th Cir. 2020)......................................................................... 51, 59

5 Parham v. J.R., 6 442 U.S. 584 (1979).................................................................................. 21, 48, 49

7 Powell v. Alabama, 8 287 U.S. 45 (1932).......................................................................................... 35, 52

9 Quilloin v. Walcott,

10

434 U.S. 246 (1978)..............................................................................................53

11 Ramirez v. U.S. Immigr. & Customs Enf’t, --- F. Supp. 3d ----, 2020 WL 3604041 (D.D.C. July 2, 2020)................... 49, 58, 59
12

13 Reno v. Flores, 507 U.S. 292 (1993)..............................................................................................29

14

Rivera v. Cty. Of Los Angeles,

15

2011 WL 2650006 (C.D. Cal. July 5, 2011)..........................................................37

16 Rivera v. Granucci,
17 1993 WL 76202 (D. Conn. Mar. 12, 1993) ...........................................................35

18 In re Robin M., 19 21 Cal. 3d 337 (1978) ...........................................................................................34

20 Rosenbaum v. Washoe Cty.,

21

663 F.3d 1071 (9th Cir. 2011)...............................................................................22

22 San Luis & Delta-Mendota Water Auth. v. Locke,

23

776 F.3d 971 (9th Cir. 2014).................................................................................57

24 Santos v. Smith, 260 F. Supp. 3d 598 (W.D. Va. 2017)...................................................... 30, 31, 33
25

26

Santosky v. Kramer, 455 U.S. 745 (1982).................................................................................. 22, 33, 37

27

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1

TABLE OF AUTHORITIES (continued)

2

Page

3

Saravia v. Sessions,

4

905 F.3d 1137 (9th Cir. 2018)........................................................................passim

5 Schad v. Arizona, 6 501 U.S. 624 (1991)........................................................................................ 36, 50

7 Schall v. Martin, 8 467 U.S. 253 (1984)............................................................................ 28, 30, 38, 44

9 Singh v. Holder,

10

638 F.3d 1196 (9th Cir. 2011)........................................................................passim

11 Smith v. Sumner, 994 F.2d 1401 (9th Cir. 1993)......................................................................... 20, 24
12

13 Stanley v. Ill., 405 U.S. 645 (1972)..............................................................................................34

14

Staub v. City of Baxley,

15

355 U.S. 313 (1958)..............................................................................................32

16 Superintendent, Mass. Corr. Inst., Walpole v. Hill,
17 472 U.S. 445 (1985)..............................................................................................47

18 Tawadrus v. Ashcroft, 19 364 F.3d 1099 (9th Cir. 2004)...............................................................................54

20 Todaro v. Ward,

21

565 F.2d 48 (2d Cir.1977).....................................................................................35

22 United States v. Raya-Vaca,

23

771 F. 3d. 1195 (9th Cir. 2014), abrogated on other grounds by Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020) .................................42

24

United States v. Salerno,

25

481 U.S. 739 (1987)..............................................................................................25

26 United States v. Si, 27 333 F.3d 1041 (9th Cir. 2003)...............................................................................35

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1

TABLE OF AUTHORITIES (continued)

2

Page

3

Vitek v. Jones,

4

445 U.S. 480 (1980).......................................................................................passim

5 Walters v. Reno, 6 145 F.3d 1032 (9th Cir. 1998)......................................................................... 42, 47

7 Weinberger v. Romero-Barcelo, 8 456 U.S. 305 (1982)..............................................................................................58

9 In re Winship,

10

397 U.S. 358 (1970)..............................................................................................45

11 Wong Yang Sung v. McGrath,

339 U.S. 33 (1950), superseded in part by statute on other grounds

12

Ardestani v. I.N.S., 502 U.S. 129 (1991) ...............................................................27

13 Zadvydas v. Davis,
14 533 U.S. 678 (2001).................................................................................. 20, 21, 46

15 Zerezghi v. U.S. Citizenship and Immigr. Serv., 16 955 F.3d 802 (9th Cir. 2020).................................................................................26

17 Zinermon v. Burch,

18

494 U.S. 113 (1990).................................................................................. 30, 42, 43

19 Statutes

20 5 U.S.C.

21

§ 554............................................................................................................... 26, 27

§ 555(b) ................................................................................................................52

22

§ 556.....................................................................................................................27

23

§ 557.....................................................................................................................27

§ 702 et seq...........................................................................................................57

24

§ 706(1) .......................................................................................................... 49, 58

25

§ 706(2) ................................................................................................................57

26 6 U.S.C. § 279 ......................................................................................................... 3, 8

27

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MEM. ISO MOT.

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1

TABLE OF AUTHORITIES (continued)

2

Page

3

8 U.S.C.

4

§ 1232................................................................................................................. 3, 8

5

§ 1232(b)(5)............................................................................................................1

§ 1232(c)(2) ...................................................................................... 2, 8, 22, 49, 58

6

§ 1232(c)(5) .............................................................................................. 53, 56, 58

7 § 1362...................................................................................................................56

8 28 U.S.C. § 1827(d) ...................................................................................................35

9 Further Consolidated Appropriations Act, 2020, 116 Pub. L. No. 94, Title 10 II, 133 Stat. 2534 (2019) .......................................................................................57

11 Homeland Security Act of 2002, § 462(b) Pub. L. No. 107-296, 116 Stat.

12

2135 (2002) ..........................................................................................................56

13 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008....................................................................................................................1
14
15 Other Authorities

16 Black’s Law Dictionary 442 (11th ed. 2019)..............................................................53

17 Fed. R. Civ. P. 56(a) ..................................................................................................19

18

19

20

21

22

23

24

25

26

27

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1 I. INTRODUCTION

2

Plaintiffs challenge the policies and practices of the Office of Refugee

3 Resettlement (“ORR”) that prolong immigrant children’s detention under harsh

4 conditions, creating a continuum of trauma that vulnerable children—many of whom

5 arrive in the United States after having suffered horrific trauma in their countries of

6 origin—are ill-equipped to endure. Plaintiffs immigrated to the United States often

7 fleeing violence, physical and sexual assault, and extreme poverty only to be detained

8 by ORR for months, and sometimes years, while denied reunification with their parents,

9 siblings, and other family members.

10

ORR prolongs children’s detention in ORR custody on the ground that their

11 parents or other available custodians are or may be unfit, but affords neither detained

12 children nor their proposed custodians any meaningful or timely opportunity to be heard

13 regarding a proposed custodian’s fitness. Moreover, ORR “steps up” children from

14 shelters to staff-secure, secure, and restrictive psychiatric facilities without even the

15 most rudimentary procedural protections. Youth housed in shelters report being

16 awakened in the small hours of the morning and soon thereafter finding themselves

17 confined in juvenile detention centers or psychiatric facilities, where they suffer

18 irreparable harm inherent to confinement. ORR also undermines lawyers’ ability to

19 represent detained children with respect to placement, administration of psychotropic

20 medications, or release to available custodians, notwithstanding that Congress

21 specifically directed ORR to “ensure, to the greatest extent practicable” that children

22 who are or have been in its custody have legal representation in “legal proceedings or

23 matters.” William Wilberforce Trafficking Victims Protection Reauthorization Act of

24 2008, 8 U.S.C. § 1232(b)(5) (“TVPRA”).

25

To protect children like Gabriela N., who was held in ORR custody for 633 days

26 while ORR refused to release her to her grandfather, and Lucas R., who was refused

27 release to his sister and brother for over 200 days, from severe and unnecessary harm

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upon arrival in the United States, Congress incorporated into federal law two bedrock

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1 principles from the settlement in Flores v. Barr, No. 2:85-cv-04544-DMG (C.D. Cal.)

2 (“FSA”): (1) ORR must release children to parents or other qualified custodians without

3 unnecessary delay; and (2) ORR must place children in the “least restrictive” setting for

4 however long it detains them. See 8 U.S.C. § 1232(c)(2)(a). The FSA and TVPRA—

5 along with the Constitution—provide substantive rights to Class Members entitled to

6 procedural protection. (See ECF No. 141 at 11-15.)

7

However, neither the TVPRA nor the FSA prescribes procedures pursuant to

8 which Defendants must transparently and rationally determine: (1) whether children’s

9 parents or other available custodians are fit; or (2) whether a child may be consigned to

10 a restrictive placement. This procedural vacuum has necessitated numerous motions to

11 enforce the FSA, and prompted this Court to convene multiple conferences, and order

12 ORR “for the umpteenth time . . . to abide by the FSA.” Flores v. Barr, No. 2:85-cv-

13 04544-DMG-AGR, ECF No. 768 at 3 (C.D. Cal. Apr. 10, 2020). Absent meaningful

14 process to determine whether ORR is unnecessarily detaining children or placing them

15 in restrictive facilities, Plaintiffs must continue to resort to judicial enforcement of the

16 substantive provisions of the TVPRA and FSA.

17

ORR’s unnecessary delay and refusal to release children to qualified custodians

18 inflicts grievous injury. And as days of detention stretch into weeks and months,

19 frustration and trauma often culminate in behaviors indicative of their deteriorating

20 emotional state. When this happens, instead of considering the mental and other health

21 needs of the child, ORR “step-ups” children to even more restrictive settings, often

22 exacerbating the child’s needs. Once stepped up, Defendants’ own data shows that

23 children spend weeks or months longer in detention than those who are not stepped up.

24

ORR justifies this vicious cycle as a byproduct of its duty to protect children from

25 abuse or neglect. However, the uncontroverted evidence shows that, inter alia:

26
27
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• ORR prescribes no limit on how long it may take to decide whether a proposed custodian is fit;

• ORR grants its staff and contractors broad discretion to invent requirements and

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1

evaluate a custodian’s fitness before they are deemed fit;

2 • ORR fails to consider the trauma that detention itself causes in weighing whether

3

continued detention is in the child’s best interest;

4

• When detained children engage in undesirable behaviors, ORR transfers them to

restrictive placement, most often waking them in the early hours of the morning

5

and transporting them to an unknown and unfamiliar destination;

6 • Even when ORR conducts TVPRA-required “30-day reviews” of restrictive

7

placement, it denies children, their custodians, and their lawyers any meaningful role in deciding whether to “step-down” a child back to a non-secure placement;

8

and

9 • ORR exercises unilateral discretion in children’s release and placement; it does

10

not provide notice or an opportunity to be heard by children, their custodians, or their counsel in making these significant decisions.

11

12

No other child welfare agency in the country enjoys unilateral discretion to detain

13 children, keep them separated from their families, consign them to psychiatric wards

14 and juvenile lockups for however long it wants, or medicate them without parental

15 consent. If children’s substantive rights under the TVPRA, FSA, and Constitution are

16 to mean anything at all, more process than none is due. Accordingly, Plaintiffs request

17 that the Court enter judgment for Plaintiffs on their First (Custodians’ fitness), Second

18 (Restrictive Placement), and Fourth (Obstructing Legal Assistance) Claims for Relief.

19 II. PROCEDURAL AND FACTUAL BACKGROUND

20

A. Procedural Background

21

On June 29, 2018, Plaintiffs filed a complaint for injunctive relief, declaratory

22 relief, and nominal damages, challenging certain unlawful policies and practices of

23 ORR, an agency within the U.S. Department of Health and Human Services (“HHS”)

24 that has responsibility for the placement, care, custody and release of “unaccompanied

25 alien children.” 6 U.S.C. § 279; 8 U.S.C. § 1232; ECF No. 1. On September 7, 2018,

26 Plaintiffs filed the First Amended Complaint (“FAC”). (ECF No. 81.) On December 27,

27 2018, the Court issued an amended order granting in part and denying in part

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1 Defendants’ motion to dismiss and certifying five classes of minors in ORR custody.

2 (ECF No. 141.) As relevant here, the Court certified the following classes:

3 • Minors in ORR custody “who are or will be placed in a secure facility, medium-

secure facility, or RTC, or whom ORR has continued to detain in any such facility

4

for more than 30 days, without being afforded notice and an opportunity to be

heard before a neutral and detached decisionmaker regarding the grounds for

5

such placement (i.e., the ‘step-up class’)”;

6 • Minors in ORR custody “whom ORR is refusing or will refuse to release to

parents or other available custodians within 30 days of the proposed custodian’s

7

submission of a complete family reunification packet on the ground that the

proposed custodian is or may be unfit (i.e., the ‘unfit custodian class’)”; and 8

• Minors in ORR custody “who are natives of non-contiguous countries and to

9

whom ORR is impeding or will impede legal assistance in legal matters or

proceedings involving their custody, placement, release, and/or administration of

10

psychotropic drugs (i.e., the ‘legal representation class’).”

11 (Id. at 27–28.)1

12

The Court also made several findings relevant to the instant motion. First, the

13 Court allowed Plaintiffs to proceed with “due process claims predicated on Defendants’

14 failure to provide sufficient procedural safeguards for alien minors to exercise their

15 Flores rights because Plaintiffs cannot bring those claims in the Flores Action.” (Id. at

16 10–11.) Second, the Court concluded that ORR’s policies and practices “constitute final

17 agency actions such that Plaintiffs may raise their TVPRA claims under the APA.” (Id.

18 at 11–12.) Third, the Court found that Plaintiffs “identified . . . substantive rights

19 underlying their procedural due process claims” arising under the Constitution, the

20 TVPRA, and the FSA. (Id. at 13–15.) Fourth, the Court rejected Defendants’ argument

21 that children in ORR custody, as undocumented minors, are not entitled to any

22 procedural protections beyond those explicitly provided by Congress. (Id. at 13, 15.)

23

B. Determining Custodians’ Fitness (First Claim for Relief)

24

Many of the named Plaintiffs and Class Members have endured unnecessary and

25 prolonged detainments in ORR custody, separated from their families, often leading to

26 1 The Court certified two additional classes of minors related to Plaintiffs’ Third and
27 Fifth Claims for Relief, which are not at issue in this motion. (ECF No. 141 at 27–28.)

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MEM. ISO MOT.

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1 the children’s placements in more restrictive detention centers. Gabriela N. was in ORR

2 congregate care for 633 days;2 Lucas R. was in ORR custody for 208 days; and one

3 Class Member remained in ORR custody for at least 1,570 days—or more than four

4 years. (Statement of Uncontroverted Facts and Conclusions of Law in Support of

5 Plaintiffs’ Motion for Partial Summary Judgment (“SUF”) ¶¶ 26–27.) As of March 13,

6 2020, there were approximately 1,193 children in ORR custody who had been detained

7 by ORR for more than 30 days. (SUF ¶ 23.)

8

It is indisputable that detention and family separation are detrimental to the well-

9 being of children, as demonstrated by the psychological harm suffered by Plaintiffs.

10 (See, e.g., SUF ¶ 17 (Lucas R. had trouble sleeping and psychological issues until

11 reunified with his brother); SUF ¶ 18 (Sirena P.’s separation from her family was noted

12 as a trigger to her mental health symptoms); SUF ¶ 19 (Benjamin F.’s separation from

13 his mother and placement in ORR’s legal custody led to physical and emotional

14 challenges).3 Notwithstanding this demonstrated harm, ORR’s policies fail to provide

15 adequate procedural protections to guard against unnecessary and prolonged detention.

16

1. ORR’s policies regarding custodial vetting.

17

ORR’s command is clear: make “prompt and continuous efforts” toward family

18 reunification and release children “without unnecessary delay.” (SUF ¶ 29.) ORR

19 releases children to potential custodians or “sponsors,” which include parents or legal

20 guardians (Category 1 sponsors), immediate relatives (Category 2A/B sponsors), or

21 more distant relatives and individuals (Category 3 sponsors). (SUF ¶ 30.) Cases with no

22 identified sponsors are referred to as Category 4. (SUF ¶ 31.)4

23
24
25
26
27
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2 Plaintiff Gabriela N. has reached the age of majority since this action was filed and now maintains this action on her own behalf, rather than through her next friend, Isaac N., who passed away in July 2020.
3 Indeed, detention is correlated with both short-term and long-term adverse effects on children’s physical and mental health and well-being. (SUF ¶¶ 1–4.)
4 Some children designated as Category 4 may have had identified sponsors that were

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ORR employees make final release decisions with minimal if any oversight,

2 much less the kind of judicial oversight applied in the analogous child welfare context.

3 (SUF ¶¶ 32–35, 37–38, 57.) Case Managers are not federal employees but are employed

4 by “care providers,” i.e., private facilities with which ORR enters into cooperative

5 agreements to place and care for children in ORR custody. (SUF ¶ 274.) Case Managers

6 are responsible for assessing potential sponsors and making transfer and release

7 recommendations. (SUF ¶ 33.) Case Coordinators are non-governmental contractor

8 field staff assigned to one or more care providers primarily to review children’s cases

9 and provide transfer and release recommendations to ORR staff. (SUF ¶ 34.) Federal

10 Field Specialists (“FFS”) are ORR field staff located regionally throughout the country

11 with final decision-making authority to, inter alia, release a child to a proposed sponsor.

12 (SUF ¶¶ 35, 37.) Although Case Managers are the first of three actors involved in

13 release decisions, they also have unilateral authority to declare a potential sponsor “non-

14 viable,” which ends the vetting process for that sponsor. (SUF ¶ 38.)

15

ORR’s written policies offer a broad list of assessment criteria that Case

16 Managers, Case Coordinators, and FFS (“case staff”) may use to evaluate the fitness of

17 potential sponsors. (SUF ¶ 59.) For example, the only requirements for ordering a

18 discretionary home study are that the sponsor be potentially viable and case staff “have

19 a reasonable expectation that results of the home study process . . . will provide

20 additional information, other than what has already been gathered via the sponsor

21 assessment process, which will mitigate concerns.” (SUF ¶ 45.) Prior to release, ORR

22 may also conduct additional assessments of minors in custody, such as psychological

23 evaluations. (SUF ¶ 52.) Yet ORR provides no written standards for when it may require

24 a psychological evaluation as a prerequisite to release. (SUF ¶ 53.)

25

ORR fails to provide written notice of decisions denying release in all but the

26 most limited circumstances. Only when ORR deems a Category 1 sponsor unfit, will it

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denied or deemed non-viable by ORR. (SUF ¶ 69.) 6

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1 send the sponsor a denial letter. (SUF ¶ 72.) No other category of sponsor is entitled to

2 written notification of the denial and reasons for that denial. (Id.) And only if the sole

3 reason for denial is a concern that the child may be a danger to themself or the

4 community, does ORR send the child a denial letter. (SUF ¶ 70.) No other child is

5 entitled to written notification of the denial and reasons for that denial. (SUF ¶ 71.)

6 Opportunities to challenge decisions denying release are similarly limited. Only parents

7 and legal guardians have a right to appeal; no other proposed sponsors have any

8 opportunity to challenge a release denial. (SUF ¶ 79.) Children are only entitled to

9 appeal an adverse decision if the sole reason for the denial is a concern that the child is

10 a danger to themselves or the community. (SUF ¶¶ 77–78.) None of these criteria was

11 true for Lucas R., which meant that neither he nor his sister, Madelyn R., were ever told

12 why Madelyn’s sponsorship application was denied, which resulted in Lucas R. being

13 detained in ORR custody awaiting reunification for 208 days. (SUF ¶¶ 26, 86–87.)

14

2. ORR’s policies regarding custodial vetting lack basic

15

procedural protections.

16

ORR’s policies confer enormous discretion on case staff to determine whether a

17 child can be released from federal custody without any of the basic procedural

18 protections afforded in analogous child welfare systems. These policies frequently

19 change and none of the limited guidance provided to case staff concerning custodial

20 vetting is published in the Federal Register or Notice of Proposed Rulemaking or

21 otherwise made available for public comment. (SUF ¶ 63.) Moreover, the policies on

22 their face fail to provide even the most basic procedural protections to children and their

23 sponsors. For example, the policies:

24
25
26
27
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• Fail to provide guidance on how to weigh information once collected or require application of any particular standard—much less an evidentiary standard—when making release decisions (SUF ¶¶ 59, 61–62);
• Fail to provide a hearing before a neutral factfinder to challenge a decision denying release to a proposed custodian (SUF ¶ 74, 76);
• Fail to afford children the opportunity to review evidence relied upon in

MEM. ISO MOT.

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1

denying a sponsor or otherwise provide a meaningful opportunity to challenge

denial decisions (SUF ¶ 73);

2

• Fail to provide children with written notification of a proposed sponsor’s

3

denial in all but the most limited circumstances (SUF ¶ 70–71);

4

• Fail to afford children the right to appeal adverse decisions in all but the most

limited circumstances (SUF ¶ 77–78);

5

• Fail to require any timeline for providing adverse decisions to proposed

6

custodians other than parents or legal guardians (SUF ¶ 96);

7

• Fail to provide proposed custodians an opportunity to meaningfully inspect or

rebut evidence relied upon to declare them unfit (SUF ¶ 75);

8

• Fail to ensure children their constitutional and statutory rights to counsel; and

9

• Fail to provide proposed custodians other than parents or legal guardians an

10

opportunity to challenge adverse decisions through appeal or otherwise (SUF

¶¶ 79–80).

11

12

C. Restrictive Placement (Second Claim for Relief)

13

ORR is responsible for the placement, care, custody, and release of

14 “unaccompanied alien children.” 6 U.S.C. § 279; 8 U.S.C. § 1232. A child in ORR’s

15 custody “shall be promptly placed in the least restrictive setting that is in the best interest

16 of the child” and “shall not be placed in a secure facility absent a determination that the

17 child poses a danger to self or others or has been charged with having committed a

18 criminal offense.” 8 U.S.C. § 1232(c)(2)(A).

19

Despite this Congressional command, ORR detains children in restrictive

20 facilities without affording them fundamental rights to hearings or any meaningful

21 procedural protections. Children may be placed in restrictive settings as: (1) an initial

22 placement upon transfer to ORR custody; or (2) when they are moved or “stepped up”

23 from a lower level of care to a more restrictive placement. (SUF ¶¶ 102–03, 105.)5 ORR

24 has a network of available placements, which include shelters, short-term or transitional

25 foster care, long-term foster care, group homes, therapeutic group homes, staff-secure,

26

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5 Children can also be moved from a more restrictive to a less restrictive level of care. This is referred to as a “step-down.” (SUF ¶ 106.)

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1 therapeutic staff-secure, secure, and residential treatment centers (“RTCs”). (SUF

2 ¶¶ 101, 107–08.) ORR also detains children in a number of out-of-network (“OON”)

3 facilities, some of which are RTCs. (SUF ¶ 108.)6

4

ORR regularly “steps up” Class Members. (SUF ¶ 104.) As of March 13, 2020,

5 14 of the total 3,621 children in ORR in-network care were detained in a secure facility;

6 17 were detained in a RTC; 30 were detained in a staff-secure facility; 6 were detained

7 in a therapeutic staff-secure facility; and 13 were detained in therapeutic group homes.

8 (SUF ¶ 223.) As of that same date, 11 children were detained in out-of-network RTCs.

9 (SUF ¶ 224.) The longer ORR detains a child, the more likely they will be stepped up

10 to a restrictive placement. (SUF ¶ 115.)

11

Secure juvenile detention facilities, which ORR concedes “have a secure

12 perimeter, major constraining construction inside the facility, and procedures typically

13 associated with correctional facilities,” are the most restrictive facilities in ORR’s

14 network. (SUF ¶¶ 129, 117.)7 Secure facilities—which have been compared to

15 “prisons” and “jails” by ORR’s own staff (SUF ¶ 128)—are “locked facilities with

16 24-hour surveillance and monitoring.” (SUF ¶ 131.) Children are detained alone in

17 small cells with concrete beds layered with only a thin mattress and no pillow. (Ex. 82

18 [Y.A.M.S. Decl.] ¶¶ 29–30.)8 Children report being allowed out of their cells for only

19 short periods of time and that the lights remain on through the night. (Ex. 137 [F.R.A.]

20 Decl. ¶ 10 (“[At Yolo] they never turn out the lights. The lights stay on all night so you

21 have to cover your head to try to sleep.”).)

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6 ORR’s Manual of Procedures (“MAP”) refers to OON RTC placements as Treatment Authorization Request (“TAR”) RTC placements. (SUF ¶ 110.)
7 Previously, ORR maintained three secure facilities: Yolo County Juvenile Center (“Yolo”), Shenandoah Valley Juvenile Center (“SVJC”), and Northern Virginia Juvenile Detention Center (“NOVA”). (SUF ¶ 119.) Presently, ORR only maintains one secure facility: SVJC. (Id.)
8 All exhibits cited are attached to the Declaration of Alexandra R. Mayhugh in Support of Plaintiffs’ Motion for Partial Summary Judgment filed concurrently herewith.

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1

Guards forcibly restrain and pepper spray children (SUF ¶ 130), which is

2 traumatizing for those being restrained or pepper sprayed as well as the children

3 witnessing the incident. (Ex. 137 [F.R.A. Decl.] ¶¶ 7–8 (child recounting staff throwing

4 him on the ground and handcuffing him and witnessing another child being restrained

5 so forcefully that his arm broke).) Children who have endured confinement in ORR’s

6 juvenile detention centers describe being “treated like criminals” and made to “feel like

7 an animal.” (Ex. 82 [Y.A.M.S. Decl.] ¶¶ 27, 29–30 (“It has been 11 months of misery

8 [at Yolo]”—“a juvenile jail where we are kept in cells, forced to wear uniforms and

9 treated like criminals. The detention center makes me feel like an animal.”).)

10

RTCs are highly restrictive psychiatric facilities, which are similarly restrictive

11 as secure facilities. (SUF ¶¶ 118, 127.)9 In addition to physical liberty restrictions (SUF

12 ¶ 132), RTCs require children to undergo treatment prescribed by the respective facility

13 (SUF ¶¶ 133, 134). As part of that treatment, children report being medicated against

14 their will, including being forcibly injected with psychotropic medication. (SUF ¶¶ 133,

15 134; Ex. 82 [Y.A.M.S. Decl.] ¶¶ 13–20 (recounting that staff would force the child’s

16 mouth open if they tried to refuse to take the medication; “I felt like I had no one to help

17 me and no option but to take the daily medication.”); Ex. 69 [K.N.A.T. Decl.] ¶ 11

18 (“The staff hold down and inject youth that aren’t able to calm down.”); Ex. 62 [D.S.J.L.

19 Decl.] ¶ 11 (“Two staff grabbed me, and the doctor gave me an injection despite my

20 objection and left me there on the bed.”).)

21

OON facilities are often RTCs that are similarly restrictive as in-network RTCs.

22 (SUF ¶ 121.) Staff-secure, therapeutic staff-secure, and therapeutic group homes are

23 less restrictive than RTCs and secure jails, but more restrictive than shelters. (SUF

24 ¶¶ 122–23, 125; id. ¶ 135 (children in therapeutic staff-secure facilities may be required

25 to undergo sex offender treatment); id. ¶ 124 (staff-secure facilities can be gated,

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9 ORR currently maintains two in-network RTCs: MercyFirst Residential Treatment Center (“MercyFirst”) in Syosset, New York, and Shiloh Treatment Center (“Shiloh”) in Manvel, Texas. (SUF ¶ 120.)

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1 enclosed, fenced facilities).) Foster care programs are the least restrictive settings in

2 which ORR places Class Members. (SUF ¶ 126.) ORR may consider each of these

3 placements when determining the “least restrictive” environment for a child.

4

It is unsurprising that the cumulative impact of confinement in ORR’s restrictive

5 facilities are deleterious for a child’s psychological and emotional functioning. (SUF

6 ¶ 1, 3-4, 136.) Yet children who then manifest behavioral symptoms of mental

7 decompensation are at risk of being detained even longer in a restrictive setting, or

8 generally in ORR custody unless they show good behavior (SUF ¶¶ 68, 152), something

9 that experts say may not be achievable. (See Ex. 56 [Matlow & Wang Expert Rep.] at

10 1387 (“Due to the impact of traumatic stress on cognitive, emotional, and behavioral

11 regulation skills . . . expectations for perfect behavior (i.e. no impulsive behavior, no

12 defiant behavior, no rule breaking, etc.) over extended periods of time are

13 unrealistic.”).) This cruel cycle of indefinite detention exacerbates behaviors used to

14 justify further detention. (Id. at 1389 (“Release or step-down requirements that depend

15 upon demonstration of emotional, psychological, or behavioral stability are

16 contradictory in that the facility setting itself is often the source of the child’s distress

17 and dysregulation.”).)

18

Further problematic is that ORR evaluates this “good behavior” based on, among

19 other things, the number of Special Incident Reports (“SIRs”) a child has received (SUF

20 ¶ 153), yet the behaviors that trigger a SIR vary from program to program (SUF ¶ 154).

21 Step-up can also further delay a child’s release to a sponsor because ORR generally

22 requires home studies of proposed custodians of the children it steps up to secure

23 facilities or RTCs. (SUF ¶¶ 44, 156.)

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25

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MEM. ISO MOT.

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1

Children stepped up to secure, staff-secure, and RTCs, as well as OON,

2 therapeutic staff-secure, and therapeutic group homes, are detained on average longer

3

4

5

6

7

8

9

10

11

12 than children who are not stepped up. (SUF ¶¶ 140, 141.) For example, Plaintiffs’ expert

13 Dr. Emily Ryo, a Professor of Law and Sociology at the University of Southern

14 California, reviewed ORR data from November 2017 to March 13, 2020 and found that

15 more restrictive placement correlated with longer average lengths of stay:

16 (Ex. 57 [Ryo Expert Rep.] at 1403; SUF ¶ 142.) At least one class-member was held in

17 restrictive placements for more than four years. (SUF ¶ 143.)

18

Children who spend time in secure, staff-secure, therapeutic staff-secure, RTC,

19 OONs, and therapeutic group homes are also less likely to be reunified with a proposed

20 custodian (SUF ¶¶ 144–45), and more likely to voluntarily depart the United States than

21 those who are not stepped up (SUF ¶¶ 146–47). Further, children who are stepped up

22 are generally ineligible for step-down to long-term foster care programs (SUF ¶ 139),

23 and children who are stepped up and have no potential sponsor or their sponsor(s) were

24 denied—i.e., Category 4 cases—are unlikely to be released to Unaccompanied Refugee

25 Minor (“URM”) programs (SUF ¶¶ 148–49).10

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10 “The URM program is the ORR-funded foster care services program . . . that establishes legal responsibility, under State law, to ensure that unaccompanied minor

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1

1. ORR’s policies regarding restrictive placement.

2

ORR’s written policies and procedures govern ORR’s placement and transfer

3 decisions. (SUF ¶ 157.) ORR’s policies provide no definition or placement criteria for

4 therapeutic staff-secure facilities, therapeutic group homes, and out-of-network

5 facilities, despite mandate to consider least restrictive placements. (SUF ¶¶ 109, 111–

6 14.)

7

ORR case staff participate in step-up and step-down determinations. (SUF ¶¶ 34,

8 161, 167.) Case Managers compile the information ORR relies upon to decide whether

9 children will be stepped up or stepped down and recommend whether step-up or step-

10 down is appropriate. (SUF ¶ 161–62.) Case Coordinators offer a third-party review of

11 the Case Manager’s recommendations regarding step-ups and step-downs (SUF ¶ 34),

12 but unlike Case Managers they are not required to speak with children before making

13 their recommendation (SUF ¶ 164). In practice, Case Coordinators rely exclusively on

14 written documentation (SUF ¶ 163), and rarely speak with children before making step-

15 up and step-down recommendations. (SUF ¶ 165.) FFS, who are ORR staff (SUF

16 ¶ 166), provide final authorization for step-up and step-down decisions and can depart

17 from a Case Manager’s and/or Case Coordinator’s recommendation without further

18 review by any other ORR official. (SUF ¶ 167.) Like Case Coordinators, FFS rely

19 exclusively on written documentation (SUF ¶ 168), which is not always accurate (SUF

20 ¶ 169), and are not required to interview children or communicate with a child’s

21 potential custodian before making such decisions. (SUF ¶ 170.)

22

If ORR determines that a child warrants a more restrictive level of placement,

23 ORR procedures only require that children be given a notice of placement form

24 (“NOP”) within 48 hours after step-up. (SUF ¶ 183.) The NOP is supposed to inform

25 the child of the reason for placement in a restrictive setting and their right to challenge

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refugees and other eligible children . . . receive the full range of assistance, care, and services that are available to all foster children in the State.” (Ex. 1 [ORR Policy Guide], Guide to Terms at 21.)

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1 the placement. (SUF ¶ 186.) However, prior notice of step-up or placement in a

2 restrictive setting is not required. (SUF ¶¶ 179, 181.) Additionally, children placed in

3 OON facilities are not required to receive the NOP within the same time frame (SUF

4 ¶ 184), and children placed in therapeutic group homes are not entitled to receive any

5 NOP under ORR policy or procedures. (SUF ¶ 185.)

6

These draconian policies and lack of notice have a devastating effect on already

7 traumatized children, sowing confusion, fear and anxiety. (Ex. 58 [A.D.A Decl.] ¶ 4

8 (“One morning at 4:00am, officials came and took me from the shelter and transferred

9 me . . . No one told me where I was going or why.”); Ex. 4 [M.A.P.S. Decl.] ¶ 4 (“One

10 night, the staff told me to get in the car because we were going to look at the stars

11 outside. It was really late at night, and I was tired and fell asleep. When I woke up, I

12 was furious because I realized that they had lied to me. They had taken me to Shiloh

13 and left all my personal belongings behind at the shelter. No one had told me that I

14 would be transferring to a new facility. I had no prior notice of the transfer and neither

15 did my family.”).)

16

ORR also limits appeal rights regarding placement to an administrative request

17 for reconsideration to the ORR Director or federal district court review, neither of which

18 is automatic. (SUF ¶ 187.) The request for reconsideration does not include a hearing

19 with the right to present evidence or confront adverse evidence. (SUF ¶ 204.) And

20 children are only entitled to seek reconsideration by the ORR Director after 30 days in

21 a secure facility or RTC. (SUF ¶ 201.) Children placed in staff-secure or therapeutic

22 staff-secure facilities, or therapeutic group homes are not afforded an administrative

23 appeal under ORR policy. (SUF ¶ 202.)

24

Although a child who ORR steps up may request a Flores bond hearing before

25 an immigration judge, the outcome of the bond hearing has no determinative outcome

26 on the child’s level of placement in ORR custody. (SUF ¶ 205.) Moreover, the bond

27 process puts the onus to initiate and the burden of proof on the child (SUF ¶ 276), in

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contravention of basic procedural due process standards.

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1

2. ORR’s policies regarding restrictive placement lack basic

procedural protections.

2

3

ORR’s policies confer unlimited discretion on staff and FFS. None of the limited

4 guidance provided to case staff concerning step-up, step-down or placement is

5 published in the Federal Register or Notice of Proposed Rulemaking or otherwise made

6 available for public comment. (SUF ¶ 158.) And the policies as written fail to provide 7 even the most basic procedural protections to children. For example, the policies:

8

• Fail to provide guidance on how to weigh placement considerations or the

application of any particular standard—much less an evidentiary standard—

9

to placement decisions (SUF ¶ 177–78);

10

• Fail to provide a child any prior written notice that a child may be stepped up

or the reasons for step-up (SUF ¶ 179);

11

• Fail to provide children with adequate notice of placement, or in some

12

instances—such as therapeutic group homes—to provide any notice of

placement whatsoever (SUF ¶¶ 184–85, 192);

13

• Fail to provide a child’s parent or other potential custodian a notice of

14

placement prior or subsequent to restrictive placement (SUF ¶¶ 181, 191);

15

• Fail to provide children a meaningful opportunity to inspect and rebut adverse

evidence relied upon to step them up or decline to step them down (SUF

16

¶¶ 197, 215);

17

• Fail to provide children an opportunity to present evidence or cross-examine

witnesses in a hearing regarding step-up, step-down or placement in a

18

restrictive setting (SUF ¶¶ 196, 199, 204, 216);

19

• Fail to provide a hearing before a neutral factfinder to challenge an anticipated

or completed step-up or anticipated denial of step-down (SUF ¶¶ 166–67, 187,

20

193, 204); and

21

• Fail to provide children an opportunity to challenge adverse decisions

regarding placement through appeal or otherwise in all but the most limited

22

circumstances (SUF ¶¶ 201–02).

23

D. Obstructing Legal Assistance in Matters Relating to Release,

Placement, and Medication (Fourth Claim for Relief)

24

25

Plaintiff Class Members are children who are typically indigent, speak little or

26 no English, and have little or no knowledge of the United States’ legal system. (SUF

27 ¶ 226.) Their right to legal representation while in ORR custody is statutorily

28 guaranteed and critical to the protection of their rights.

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1

ORR is required to ensure “to the greatest extent possible” that children from

2 noncontiguous countries have counsel to represent them “in legal proceedings or

3 matters and protect them from mistreatment.” (SUF ¶ 227.) ORR and care provider

4 facilities are required to provide children with information about the availability of free

5 legal assistance and their right to be represented by counsel. (SUF ¶ 228.)

6

HHS contracts with the Vera Institute of Justice (“VIJ”), a non-profit

7 organization, to coordinate the delivery of free legal services to children who are or

8 have been in ORR custody. (SUF ¶ 229.) VIJ in turn subcontracts with non-profit legal

9 aid providers to counsel and represent children in immigration proceedings. (SUF

10 ¶ 231.) The vast majority of Class Members are represented, if at all, by legal service

11 providers under subcontract with VIJ. (SUF ¶ 233.)

12

The undisputed facts demonstrate that ORR’s policies and procedures frequently

13 compromise lawyers’ ability to represent detained children with respect to release,

14 placement, and medication decisions.

15

First, Case Managers are not required to communicate with children’s lawyers

16 about release and placement decisions. Although ORR policy nominally declares that

17 “Case Manager[s] inform[] other stakeholders of the progress” toward release, it

18 nowhere requires case managers to inform children’s lawyers of anything, but instead

19 provides that such “other stakeholders” “may include local legal service providers and

20 attorneys of record.” (SUF ¶ 236 (emphasis added).) ORR’s lack of policy grants broad

21 discretion to Case Managers to communicate—or not—with children’s counsel. (SUF

22 ¶¶ 236–37, 241–42.) Thus, lawyers’ access to Case Managers varies by facility. (SUF

23 ¶ 240.) Indeed, some facilities even refuse to tell lawyers who their client’s Case

24 Manager is. (SUF ¶ 237.) Likewise, Case Coordinators and FFS are not required to

25 communicate with children’s legal counsel. (SUF ¶ 238–39.) And, in practice, they

26

27

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MEM. ISO MOT.

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1 rarely do. (SUF ¶ 239.)11

2

Second, in the limited instances when children’s counsel are made aware of

3 release and placement decisions, ORR denies them timely access to evidence and

4 information it relies upon in making those decisions. Case Managers do not regularly

5 provide legal representatives with evidence relied upon in recommending for or against

6 release. (SUF ¶ 241.) They inconsistently allow children’s lawyers to submit

7 affirmative evidence in support of a client’s release. (SUF ¶ 242.) They do not provide

8 legal representatives with copies of their ultimate recommendation for or against

9 release. (SUF ¶ 243.) Likewise, Case Coordinators and FFS are not obligated to provide

10 children’s lawyers the opportunity to submit affirmative evidence or even provide a

11 copy of the ultimate recommendation and decision. (SUF ¶¶ 244–45.) The same goes

12 for restrictive placement. Legal representatives must formally request a copy of the

13 child’s file in order to access evidence ORR believes justifies restrictive placement.

14 (SUF ¶¶ 246–47.) There are no time limits on how long ORR may take before it releases

15 a child’s file pursuant to a request from their lawyer; in practice, counsel may wait

16 weeks or months before receiving the file. (SUF ¶¶ 248–49.)12

17

Third, ORR obstructs children’s counsel from advocating for them with respect

18 to step-up or step-down decisions. (SUF ¶ 251–54.) ORR does not require that a child’s

19 lawyer be informed when a child is being stepped-up to a restrictive placement until

20 after the transfer occurs. (SUF ¶ 255.) Nor does ORR disclose any psychological reports

21 relied upon to transfer a child to a secure and/or psychiatric facility. (SUF ¶ 254.)

22

Fourth, ORR’s written policies do not require that a child’s legal representative

23

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11 Nor do children’s legal representatives have access to personnel tasked with completing home studies for proposed sponsors, even though such home studies may be determinative in deciding whether ORR releases a child. (SUF ¶ 261.)
12 And when it does at least produce a child’s file, ORR redacts the names and contact information of third parties, including names of potential custodians and witnesses to events allegedly justifying restrictive placement. (SUF ¶ 250.)

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1 be informed if their client is being administered psychotropic medication. (SUF ¶ 259.)

2

E. Plaintiffs Suffered Real and Substantial Harm as a Result of

Defendants’ Policies

3

4

In February 2018, ORR took Plaintiff Lucas R. into its custody and placed him

5 at the Hacienda del Sol facility (“HdS”) in Youngtown, Arizona. (SUF ¶ 10.) When

6 Lucas R.’s sister, Madelyn, learned of his arrest, she quickly asked ORR to release

7 Lucas R. to her. (SUF ¶ 49.) Madelyn promptly gave ORR all the documents it

8 requested and applied to be his sponsor. (SUF ¶ 49.)

9

On February 20, 2018, ORR hospitalized Lucas R., purportedly due to suicidal

10 ideation. (SUF ¶ 11.) According to the emergency room report, Lucas R. had “[suicidal

11 ideation] x8 days since being moved to southwest key . . . ‘and being removed from

12 family.’” (SUF ¶ 11.) The report further states that Lucas R. “denie[d] [suicidal

13 ideation] at this time [and] just states he is sad and depressed being away from his family

14 in Guatemala.” (SUF ¶ 12.) Nonetheless, upon being returned to HdS, a nurse

15 practitioner promptly placed Lucas R. on sertraline (brand name Zoloft), a psychotropic

16 drug with severe potential side effects. (SUF ¶ 13.) The medication caused Lucas R.

17 stomach pain, and he periodically resisted taking it. (SUF ¶ 13.) No one from the shelter

18 or ORR asked Madelyn for her consent to administer Lucas R. psychotropic drugs.

19 (SUF ¶ 14.)

20

On or about March 15, 2018, ORR arranged a home study to assess Madelyn’s

21 suitability as a custodian for Lucas R. (SUF ¶ 50.) On April 12, 2018, ORR’s home

22 investigator recommended against releasing Lucas R. to Madelyn. (SUF ¶ 51.) Madelyn

23 describes how she learned that ORR had declared her unfit to care for her brother:

24

She told me nothing could be done, that the denial was a final decision.

25

They didn’t give me any opportunity to appeal the denial, or to ask that the decision be changed. She never gave me anything in writing explaining the

26

reason for having denied me [Lucas R.’s] custody.

27 (ECF No. 37-13 [Madelyn R. Decl.] ¶ 13.)

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Shortly thereafter, ORR transferred Lucas R. to Shiloh RTC. (SUF ¶ 15.) There,

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1 ORR continued to confine and medicate him without his or his family’s consent until

2 he was finally released to his brother on September 4, 2018. (SUF ¶ 16.)

3

Numerous named Plaintiffs and Class Members recount similarly precipitous and

4 perfunctory decision-making that extended detention for months without their having

5 the least ability to correct faulty assumptions, rebut derogatory evidence, or fill in the

6 evidentiary record. (See, e.g., Ex. 138 [J.F.A. Decl.] ¶ 9 (Gabriela N.’s grandfather, after

7 she was detained six months at Shiloh RTC: “I got the impression that the home

8 investigator didn’t think I made enough money to be able to support [my granddaughter]

9 and myself.”); ECF No. 37-14, ¶ 8 (youth detained for fifteen months: “My case worker

10 told me that the only reason that I haven’t been released to my aunt [is] because I don’t

11 have an official birth certificate[.] My mother died before she could register me for

12 [one].”).)

13

If the statements of these children were not enough, Plaintiffs’ experts similarly

14 agree that prolonged detention, such as that described above, is positively associated

15 with increased incidences of “step-up,” thus producing a vicious cycle. (See SUF ¶ 115.)

16 III. LEGAL STANDARD

17

A party may move for partial summary judgment. Fed. R. Civ. P. 56(a). The

18 standard for partial summary judgment is the same as summary judgment generally,

19 such that summary judgment on a claim is appropriate when the moving party “shows

20 that there is no genuine dispute as to any material fact and the movant is entitled to

21 judgment as a matter of law.” Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322

22 (1986). Material facts are those that may affect the outcome of the case. Nat’l Ass’n of

23 Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012). A dispute is

24 genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for

25 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

26 IV. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR

27

FIRST AND SECOND CLAIMS FOR RELIEF

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The undisputed facts show that ORR’s custodial vetting and step-up policies and

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1 practices fail to provide procedural due process when denying a child release to a parent

2 or other proposed custodian and when detaining children in restrictive facilities.

3

The Fifth Amendment provides that no person shall “be deprived of life, liberty,

4 or property, without due process of law.” U.S. Const. amend. V. “A procedural due

5 process claim has two distinct elements: (1) a deprivation of a constitutionally protected

6 liberty or property interest, and (2) a denial of adequate procedural protections.”

7 McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (internal quotation marks

8 omitted). A constitutionally protected liberty or property interest can arise from the

9 Constitution, statute, or contract, including a consent decree. Zadvydas v. Davis, 533

10 U.S. 678, 690 (2001) (Constitution); Carver v. Lehman, 558 F.3d 869, 874–75 (9th Cir.

11 2009) (statute); Smith v. Sumner, 994 F.2d 1401, 1406 (9th Cir. 1993) (consent decree);

12 see ECF No. 141 [Class Cert. Order] at 13-15.

13

Plaintiffs have clear liberty interests to be free from detention, to familial

14 association, and to be placed in the least restrictive setting—interests guaranteed by the

15 Constitution, the TVPRA, and the FSA. (See infra Section IV.A.) Moreover, the

16 undisputed record demonstrates that ORR’s policies violate even the most basic tenets

17 of due process by failing to provide Plaintiffs with notice and a hearing. (See infra

18 Section IV.B.) Because Plaintiffs are constitutionally entitled to a hearing, binding

19 Supreme Court precedent mandates that ORR provide such hearing in accordance with

20 the procedures set forth in the APA. (See infra Section IV.C.) Finally, the high risk of

21 erroneous deprivation, probable value of additional safeguards, and relatively low

22 burden associated with additional procedural requirements, see Mathews v. Eldridge,

23 424 U.S. 319 (1976), further weigh in favor of granting summary judgment and the

24 remedies articulated in the concurrently filed Proposed Order. (See infra Section IV.D.)

25

A. Plaintiffs Have Protected Liberty Interests Vested by the Constitution,

26

the TVPRA, and the FSA

27

The substantive rights underlying Plaintiffs’ procedural due process claims are

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rooted in the Constitution, the TVPRA, and the FSA—all of which guarantee rights to

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1 be free from detention and to familial association. (See ECF No. 141 [Class Cert. Order]

2 at 13-15.)

3

Constitution. “Freedom from imprisonment—from government custody,

4 detention, or other forms of physical restraint—lies at the heart of the liberty that [the

5 Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690

6 (recognizing Fifth Amendment liberty interest for immigrant detainees in civil custody);

7 see also Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017) (“[T]he government’s

8 discretion to incarcerate non-citizens is always constrained by the requirements of due

9 process.”); id. at 990 (“In the context of immigration detention, it is well-settled that

10 ‘due process requires adequate procedural protections to ensure that the government’s

11 asserted justification for physical confinement outweighs the individual’s

12 constitutionally protected interest in avoiding physical restraint.’”) (quoting Singh v.

13 Holder, 638 F.3d 1196, 1203 (9th Cir. 2011)).

14

Further, children placed in secure psychiatric facilities, including but not limited

15 to RTCs, are often subjected to highly restrictive conditions amounting to civil

16 commitment. And “civil commitment for any purpose constitutes a significant

17 deprivation of liberty that requires due process protection.” Foucha v. Louisiana, 504

18 U.S. 71, 75-80 (1992) (recognizing Fifth Amendment liberty interest for civilly

19 committed detainees) (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)); Parham

20 v. J.R., 442 U.S. 584, 600 (1979) (there is a “substantial liberty interest in not being

21 confined unnecessarily for medical treatment”). The uncontroverted record also shows

22 that children stepped up to secure psychiatric facilities may be required to undergo

23 mandatory behavior modification (SUF ¶ 135 (children forced to undergo sex-offender

24 treatment); SUF ¶ 134 (children forcibly injected with psychotropic medication)),

25 which itself requires due process protections under the Constitution. See Vitek v. Jones,

26 445 U.S. 480, 494 (1980) (“[T]he stigmatizing consequences of a transfer to a mental

27 hospital for involuntary psychiatric treatment, coupled with the subjection of the

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prisoner to mandatory behavior modification as a treatment for mental illness,

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1 constitutes the kind of deprivations of liberty that requires procedural protections.”).

2

“The substantive due process right to family integrity or to familial association is

3 [also] well established.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir.

4 2011); see also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (holding that parents and

5 children have a well-elaborated constitutional right to live together without government

6 interference); Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013) (“The right to

7 live with and not be separated from one’s immediate family is ‘a right that ranks high

8 among the interests of the individual’ and that cannot be taken away without procedural

9 due process.”); D.B. v. Cardall, 826 F.3d 721, 740 (4th Cir. 2016) (children “enjoy a

10 familial right to be raised and nurtured by their parents”) (internal quotation marks

11 omitted); Beltran v. Cardall, 222 F. Supp. 3d 476, 482 (E.D. Va. 2016) (“It is beyond

12 dispute that [a mother’s] right to the care and custody of her son – and [a son’s]

13 reciprocal right to his mother’s care . . . is deserving of the greatest solicitude.”) (internal

14 quotation marks and citation omitted).

15

Numerous courts have also held that a child’s right to familial association is not

16 limited to parents. See Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977) (“The

17 tradition of uncles, aunts, cousins, and especially grandparents sharing a household

18 along with parents and children has roots equally venerable and equally deserving of

19 constitutional recognition.”); J.E.C.M. v. Lloyd, 352 F. Supp. 3d 559, 585 (E.D. Va.

20 2018) (rejecting argument that child’s interest in family unity is unique to parents, and

21 finding “siblings, aunts or uncles, grandparents, or first cousins” are family “captured

22 in ORR’s second-level category of would-be sponsors” and also “constitutionally

23 significant”); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1006 (N.D. Ill. 1989) (children

24 have “constitutionally protected right to associate with their siblings”).

25

TVPRA. The TVPRA creates a protected liberty interest to be “promptly” placed

26 “in the least restrictive setting that is in the best interest of the child,” generally with “a

27 suitable family member” or other available guardian or entity. 8 U.S.C. § 1232(c)(2)(A)

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(“[A]n unaccompanied alien child . . . shall be promptly placed in the least restrictive

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1 setting that is in the best interest of the child.”) (emphasis added). The TVPRA also

2 prescribes ORR’s duty to place children in non-secure facilities: “A child shall not be

3 placed in a secure facility absent a determination that the child poses a danger to self or

4 others or has been charged with having committed a criminal offense.” Id. (emphasis

5 added); see Carver, 558 F.3d at 872–73 (statute creates constitutionally protected

6 interest if it contains “explicitly mandatory language”); ECF No. 141 at 13-14.

7

FSA. The FSA creates protected liberty interests in the right to expeditious

8 release from detention and the right to family reunification. (See ECF No. 141 at 14-15

9 (finding FSA protections “are secured by a consent decree and constitute civil rights

10 because they are akin to . . . constitutional and statutory rights”).) Paragraph 14, for

11 example, mandates that, where detention is not necessary to secure a minor’s timely

12 appearance or ensure safety of the minor or others, “[ORR] shall release a minor from

13 its custody without unnecessary delay, in the following order of preference, to: A. a

14 parent; B. a legal guardian; C. an adult relative (brother, sister, aunt, uncle, or

15 grandparent) . . . E. a licensed program willing to accept legal custody; F. an adult

16 individual or entity seeking custody . . . .” (Ex. 8 [FSA] ¶ 14 (emphasis added).)

17 Similarly, Paragraph 18 provides that “[ORR] . . . shall make and record the prompt

18 and continuous efforts on its part toward family reunification and the release of the

19 minor pursuant to Paragraph 14 above.” (Id. ¶ 18 (emphasis added).)

20

Notably, the rights created by the FSA are not tethered to the degree of relation

21 to the prospective sponsor. Put differently, the FSA grants all Class Members the right

22 to prompt release from detention; it does not give Class Members a lesser right to

23 prompt release depending on the degree of kinship with or availability of sponsors.

24

The FSA also creates a constitutionally protected liberty interest in non-secure,

25 licensed facilities: “Except as provided in Paragraphs 12 or 21, such minor shall be

26 placed temporarily in a licensed program until such time as release can be effected . . .

27 or until the minor’s immigration proceedings are concluded, whichever occurs earlier.”

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(Ex. 8 [FSA] ¶ 19 (emphasis added).) Further, “[a] licensed program . . . shall be non-

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1 secure as required under state law” and “licensed by an appropriate State agency to

2 provide . . . care services for dependent children.” (Id. ¶ 6 (emphasis added).) This

3 Court has already determined that RTCs and juvenile detention centers are not “licensed

4 programs” within the meaning of the FSA. See Flores v. Sessions, No. 2:85-cv-4544-

5 DMG (AGRx), ECF No. 470 at 11-14 (C.D. Cal. July 30, 2018). The FSA enumerates

6 limited circumstances under which ORR may place children in unlicensed facilities—

7 e.g., when a child has committed a violent crime, is an unusual escape risk, or is so

8 disruptive that secure confinement is necessary to ensure the welfare of the minor or

9 others—but even then, requires that no “less restrictive alternatives [be] available.” (Ex.

10 8 [FSA] ¶¶ 21, 23.)

11

These provisions of the FSA create constitutionally protected liberty interests for

12 the custodial vetting and step-up Class Members. See Sumner, 994 F.2d at 1406.

13

B. ORR’s Policies Lack Even Minimal Due Process

14

ORR’s policies and procedures for release and step-up or step-down of minors

15 are constitutionally inadequate because ORR deprives children of liberty without any

16 hearing or meaningful legal process.

17

The observations of the judicious Blackstone . . . are well worthy of recital:

18

“To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as

19

must at once convey the alarm of tyranny throughout the whole nation; but

20

confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and

21

therefore a more dangerous engine of arbitrary government.”

22 C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136). Yet, here, the most

23 vulnerable children—unaccompanied immigrant children—are denied release to family

24 and other willing sponsors and locked in jails and psychiatric centers without anything 25 remotely close to a hearing.13

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13 The law grants even less vulnerable groups more protections than detained unaccompanied immigrant children. See e.g. Boumediene v. Bush, 553 U.S. 723, 783-

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1

Courts have long applied the Mathews v. Eldridge balancing test to “assess

2 whether the government has provided ‘the core due process protection of a meaningful

3 hearing.’” Hicks v. Comm’r of Soc. Sec., 909 F.3d 786, 797 (6th Cir. 2018). But where,

4 as here, the government’s decision depends on factual findings and plaintiffs are denied

5 the opportunity to be heard at all, the court need not weigh the interests at stake under

6 the Mathews balancing test. See id. at 797 (concluding that procedures “violate long-

7 standing principles of procedural due process that predate the Mathews test”).

8

At a minimum, due process requires notice and “a fair opportunity to rebut the

9 Government’s factual assertions before a neutral decisionmaker.” Hamdi, 542 U.S. at

10 533; Doe v. Gallinot, 657 F.2d 1017, 1024 (9th Cir. 1981); see also Bowman Transp. v.

11 Arkansas Best Freight Sys., 419 U.S. 281, 288 n. 4 (1974) (“[T]he Due Process Clause

12 forbids an agency to use evidence in a way that forecloses an opportunity to offer a

13 contrary presentation.”); Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In almost every

14 setting where important decisions turn on questions of fact, due process requires an

15 opportunity to confront and cross-examine adverse witnesses.”).

16

One such “immutable” principal of due process is that “where governmental

17 action seriously injures an individual, and the reasonableness of the action depends on

18

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84 (2008) (requiring sufficient process for suspected terrorists held at Guantanamo, including the rights to assistance of counsel, notice of allegations, presentation of evidence and cross-examination of witnesses against them where a court “must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain”); Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (plurality) (finding that enemy combatant has right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”); United States v. Salerno, 481 U.S. 739, 751-52 (1987) (upholding Bail Reform Act as providing sufficient process, where pretrial detainees were provided counsel, right to present evidence, cross-examine witnesses and testify in front of a neutral judicial officer at detention hearing); Kansas v. Hendricks, 521 U.S. 346, 353 (1997) (upholding sexually violent predator statute where procedural safeguards of counsel, the right to present and rebut evidence and witnesses, and the burden of proof is on the government).

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1 fact findings, the evidence used to prove the Government’s case must be disclosed to

2 the individual so that he has an opportunity to show that it is untrue.” Beltran, 222 F.

3 Supp. 3d at 485 (quoting Greene v. McElroy, 360 U.S. 474, 496 (1959)) (finding that

4 “notice” provided to proposed custodian was made “in exceedingly general terms” and

5 that such an “opaque procedure deprived Petitioner of any opportunity to contest ORR’s

6 findings, and thus any meaningful opportunity to alter its conclusions”); Saravia v.

7 Sessions, 905 F.3d 1137, 1144 (9th Cir. 2018) (“Due process always requires, at

8 minimum, notice and an opportunity to respond.”); see also Logan v. Zimmerman Brush

9 Co., 455 U.S. 422, 434 (1982).

10

ORR’s refusal to permit children and their custodians the opportunity to inspect

11 and rebut evidence material to ORR’s decision-making before a neutral factfinder

12 offends the most “basic tenet[s]” of due process. See Hicks, 909 F.3d at 797 (collecting

13 cases); see also Zerezghi v. U.S. Citizenship and Immigr. Serv., 955 F.3d 802, 810–12

14 (9th Cir. 2020) (government violated due process where it failed to provide the evidence

15 it relied upon in making its decision thereby denying plaintiffs the opportunity to rebut

16 the evidence); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1075 (9th Cir. 2015) (same).

17 This denial of even minimally required procedural protections is itself a violation of due

18 process and grounds for granting summary judgment in Plaintiffs’ favor on their First

19 and Second Claims for Relief.

20

C. ORR’s Policies Fail to Provide a Hearing as Required Under the APA

21

The Administrative Procedure Act (“APA”) regulates federal administrative

22 proceedings in “every case of adjudication required by statute to be determined on the

23 record after [the] opportunity for an agency hearing.” 5 U.S.C. § 554(a).14 The Supreme

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14 There can be no dispute that ORR’s decisions regarding the fitness of prospective custodians and restrictive placement are adjudicatory. As the Ninth Circuit has held, adjudicatory decisions are those that “determine the specific rights of particular individuals.” See Marathon Oil Co. v. EPA, 564 F.2d 1253, 1261 (9th Cir. 1977). Relevant here, ORR is adjudicating matters directly related to children’s rights to (i)

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1 Court has determined that the APA applies with equal, if not more, force when a hearing

2 is required by the Constitution. See Wong Yang Sung v. McGrath, 339 U.S. 33, 50

3 (1950), superseded in part by statute on other grounds Ardestani v. I.N.S., 502 U.S. 129

4 (1991). In Wong Yang Sung, the Supreme Court held that the APA’s “limitation to

5 hearings ‘required by statute’” “exempts from that section’s application only those

6 hearings which administrative agencies may hold by regulation, rule, custom, or special

7 dispensation; not those held by compulsion.” Id. (emphasis added). In other words, they

8 “exempt hearings of less than statutory authority, not those of more than statutory

9 authority.” Id.; see also Aageson Grain & Cattle v. U.S. Dep’t of Agric., 500 F.3d 1038,

10 1043-44 (9th Cir. 2007) (“[T]he APA generally applies where an administrative hearing

11 is required by statute or the Constitution.”) (emphasis added).

12

As established in Section IV.A, supra, the Government’s decisions denying

13 release of Plaintiffs to proposed custodians and to initially place or step-up or step-down

14 minors directly implicates Plaintiffs’ liberty interests in freedom from detention and

15 rights to familial association. And because these decisions depend on factual findings,

16 due process requires at a minimum notice and a hearing. (See supra Section IV.B.)

17

Where the Constitution requires a hearing, as it does here, the APA prescribes

18 the procedures that must be provided. See Wong Yang Sung, 339 U.S. at 51, 53; 5 U.S.C.

19 §§ 554, 556, 557. Thus, ORR must provide children in its custody: (1) “notice” of the

20 hearing; (2) the opportunity to present his or her “case or defense by oral or

21 documentary evidence”; (3) “to submit rebuttal evidence”; and (4) “to conduct such

22 cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C

23 §§ 554(b)-(d), 556(d). And if any agency decision “rests on official notice of a material

24 fact not appearing in the evidence in the record,” the party is “entitled to an opportunity

25 to show the contrary.” 5 U.S.C § 556(e). ORR’s policies with respect to determining

26

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physical liberty, (ii) family integrity, (iii) least restrictive placement consistent with their best interests, and (iv) release without unnecessary delay to qualified custodians.

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1 custodians’ fitness and restrictive placement fail to afford these basic protections.

2 Accordingly, the Court should order ORR to afford detained children prompt in-person

3 hearings consistent with the procedures mandated by the APA.

4

D. Mathews v. Eldridge Also Entitles Plaintiffs to Procedural Safeguards.

5

Courts use the three-factor test articulated in Mathews v. Eldridge to determine

6 which procedural protections are warranted:

7

First, the private interest that will be affected by the official action; second,

8

the risk of an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or substitute procedural

9

safeguards; and finally, the Government’s interest, including the function

10

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail. 11

12 424 U.S. at 335. Plaintiffs’ interests in freedom from detention and familial association

13 and their right to placement in the least restrictive setting are substantial and far

14 outweigh Defendants’ interests in denying basic procedural protections.

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1. ORR’s custodial vetting policies and procedures are constitutionally inadequate under Mathews. a. Plaintiffs’ interests are substantial.
It is well-established that a minor’s interests in freedom from detention and

familial association are substantial. See, e.g., Schall v. Martin, 467 U.S. 253, 265 (1984)

(“The juvenile’s countervailing interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial as well.”); Singh, 638 F.3d

at 1208 (“The private interest here—freedom from prolonged detention—is

unquestionably substantial”); Foucha, 504 U.S. at 80 (“Freedom from bodily restraint

has always been at the core of the liberty protected by the Due Process Clause from

arbitrary governmental action.”); Beltran, 222 F. Supp. 3d at 482 (“In light of the right

at issue [family integrity] and the magnitude of the government’s intrusion upon it, Respondents must counterbalance the first Mathews factor with a strong showing under

the second and third factors”).

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1

The profound harm that detention causes for children is uniformly recognized by

2 scholars and researchers worldwide. (SUF ¶ 1.) And here, the undisputed facts

3 demonstrate that children are at risk of harm in ORR custody. Children have been

4 physically abused and sexually abused in ORR custody. (SUF ¶¶ 6–7.) Gabriela N.

5 experienced verbal abuse and harassment and suicidal ideation in ORR custody, which

6 resulted in hospitalization. (SUF ¶ 5.) And it is beyond dispute that children in ORR

7 custody experience separation from their parents, siblings, grandparents, and other

8 family members. (SUF ¶ 8.)

9

b. Plaintiffs have been prejudiced by ORR’s erroneous deprivations of liberty in its release decisions and the

10

value of additional safeguards is undisputable.

11

The prejudice and risk of an erroneous deprivation of a child’s liberty without

12 adequate procedural safeguards is high. Given the substantial interests at play, and the

13 inherent harms of detention, children are entitled to robust procedural protections.

14 Moreover, “[t]he consequences of an erroneous commitment decision are more tragic

15 where children are involved” because “childhood is a particularly vulnerable time of

16 life and children erroneously institutionalized during their formative years may bear the

17 scars for the rest of their lives.” Reno v. Flores, 507 U.S. 292, 318 (1993) (O’Connor,

18 J. and Souter, J., concurring) (internal citations omitted).

19

Accordingly, at least the following procedural protections are necessary to guard

20 against the risk of erroneous deprivation of Plaintiffs’ substantial interests in freedom

21 from detention and familial association: (i) adequate notice and an opportunity to be

22 heard; (ii) clear standards for determining custodial fitness; (iii) timelines to ensure

23 prompt release; (iv) right to counsel; and (v) interpreters. Because these safeguards

24 would reduce the risk of erroneous, prolonged, and harmful detention, this factor weighs

25 heavily in favor of granting relief.

26

(i) ORR’s failure to provide adequate notice and an

27

opportunity to be heard harms Plaintiffs’ interests.

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Generally, the Constitution requires some kind of a hearing before a deprivation

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1 of property or liberty. Zinermon v. Burch, 494 U.S. 113, 127-28 (1990) (collecting

2 cases). Due process requires “an opportunity to be heard in person and to present

3 documentary evidence,” as well as “[a]n opportunity at the hearing to present testimony

4 of witnesses . . . and to confront and cross-examine witnesses called by the state, except

5 upon a finding, not arbitrarily made, of good cause for not permitting such presentation,

6 confrontation, or cross-examination.” Vitek, 445 U.S. at 494; Schall, 467 U.S. at 277

7 (due process satisfied where accused juvenile was provided a hearing to call witnesses

8 and offer evidence on his own and where government was allowed to call witnesses

9 under oath and witnesses were subject to cross examination); Beltran, 222 F. Supp. 3d

10 at 486 (holding that once ORR decided to withhold minor from the care of his mother,

11 “ORR owed [the mother] some form of adversarial process, and could not simply

12 require [the mother] to change the agency’s mind”); see also Logan, 455 U.S. at 433;

13 D.B. v. Cardall, 826 F.3d at 743.

14

At least two courts have already found ORR’s reunification policies violate due

15 process. In Beltran v. Cardall, the court held that ORR’s failure to provide adequate

16 notice and adversarial hearing procedures failed to make sponsors “aware of any of the

17 evidence or factual findings upon which ORR relied” and improperly placed the burden

18 on the sponsor to “change the agency’s mind,” or, if unable to do so, “initiate court

19 proceedings.” 222 F. Supp. 3d at 485. The court also found:

20

Virtually all of [ORR’s] procedures . . . consisted of internal evaluation

21

and unilateral investigation. In effect, Respondents contend that due

process was satisfied here because ORR made a significant effort to reach

22

the correct decision. But due process does not concern itself only with the

23

degree to which one can trust the government to reach the right result

on its own initiative; rather, due process is measured by the affected

24

individual’s opportunity to protect his or her own interests.

25

26 Id. at 486-87 (emphasis added). Likewise, in Santos v. Smith, the court found all of the

27 same due process deficiencies to exist and noted that they contributed to an increased

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risk of erroneous deprivation, finding that “had better or more process been given

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1 especially as to the delay and the burden being on Ms. Santos to initiate and justify

2 reunification, rather than the default rule being otherwise, the outcome could have been

3 different.” 260 F. Supp. 3d 598, 614 (W.D. Va. 2017).

4

Here, it is undisputed that “children are not provided a written denial of a

5 proposed custodian’s release request, unless the sole reason for the denial is a concern

6 that the unaccompanied alien child is a danger to himself/herself or the community.”

7 (SUF ¶ 70; see SUF ¶ 86 (Lucas R. did not know reasons sister was rejected, and neither

8 he nor his sister were provided written explanation for rejection); SUF ¶ 85 (Gabriela

9 N.’s proposed custodian was her grandfather, yet he was not provided written notice of

10 the reasons for rejection); Ex. 138 [J.F.A. Decl.] ¶ 12 (ORR never officially told

11 Gabriela N.’s grandfather that his sponsorship application had been denied or that they

12 were looking for other sponsors).) It is also undisputed that ORR does not have a policy

13 requiring it to provide an opportunity to inspect or rebut evidence that ORR considers

14 in determining whether a child should be released to a proposed custodian. (SUF ¶ 75.)

15

It is further undisputed that ORR does not, in policy or practice, provide children

16 or sponsors a hearing to challenge an anticipated denial of a proposed custodian’s

17 release request, much less any opportunity to offer input designed to rebut ORR’s

18 decision. (SUF ¶ 74–77.) Accordingly, the Court should find ORR’s policies and

19 procedures deficient, and order Defendants to provide Class Members with notice and

20 a hearing.15

21

22

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15 It is similarly undisputed that, with very limited exception, ORR fails to allow Class Members, or their sponsors, any opportunity to appeal its finding that a proposed custodian is unfit, much less within any certain timeframe. (SUF ¶¶ 77–80.) At most, only parents and legal guardians, and no other class of proposed sponsors—regardless of familial relation or other connection—are allowed an appeal; even then, ORR’s policies do not require that ORR provide a hearing on an appeal within any time certain. (SUF ¶ 80.)

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1

(ii) ORR’s failure to apply clear standards for

determining custodial fitness harms Plaintiffs’

2

interests.

3

Clear standards for determining custodial fitness would protect Plaintiffs against

4 ORR’s unchecked discretion. In L.V.M. v. Lloyd, for example, children detained by

5 ORR challenged a new policy requiring director-level approval to release children who

6 were currently or previously detained in staff-secure or secure facilities. 318 F. Supp.

7 3d 601, 608-09 (S.D.N.Y. 2018). The court found that “[u]nder a policy of his own

8 making, [the director] has unfettered discretion to approve, deny, or request additional

9 information, unguided by any rule or fixed set of criteria, giving him unrestricted power

10 to rule over the fate of vulnerable children.” Id. at 611. The court ordered ORR to vacate

11 the policy, calling it “the zenith of impermissible agency actions.” Id. at 609; see also

12 Staub v. City of Baxley, 355 U.S. 313, 322 (1958) (finding unconstitutional official’s

13 “uncontrolled discretion” based on decision criteria “without semblance of definitive

14 standards or other controlling guidelines”).

15

The same arguments apply to ORR’s current approach to determining custodial

16 fitness. First, ORR admits that, in making release decisions, “ORR does not use an

17 ‘evidentiary’ standard such as is more appropriately applied in formal court

18 proceedings.” (SUF ¶¶ 61–62, 93.) Second, ORR’s written policies offer only limited

19 instructions to case staff in making reunification decisions, none of which is published

20 in the Federal Register or a Notice of Proposed Rulemaking and is therefore shielded

21 from public scrutiny. (SUF ¶ 63.) Further, the limited guidance only instructs staff what

22 general categories of information to collect and consider, but not how to weigh

23 information once collected. (E.g., SUF ¶ 59.) Third, the undisputed evidence confirms

24 that the vast discretion afforded to case staff has resulted in arbitrary, inconsistent, and

25 shifting reasons for denial. (See SUF ¶ 38 (sponsor deemed non-viable by case staff at

26 one facility and then approved two weeks later after child was transferred to different

27 facility); SUF ¶ 82 (child’s sister denied as sponsor because child and sister did not have

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1 same last name).)16

2

Where, as here, “the individual interests at stake . . . are both particularly

3 important and more substantial than mere loss of money,” fundamental fairness requires

4 ORR to apply clear standards under a heightened standard of proof. Santosky, 455 U.S.

5 at 756 (“clear and convincing evidence” standard appropriate where government-

6 initiated proceedings . . . threaten the individual involved with a significant deprivation

7 of liberty or stigma”) (internal quotation marks and citations omitted).

8

(iii) ORR’s failure to provide for prompt release harms

9

Plaintiffs’ interests.

10

Courts have already found that ORR’s “significant” and “unexplained delay[s] in

11 responding to [a proposed sponsor’s] unification request” violate due process

12 irrespective of other procedural defects. Santos, 260 F. Supp. 3d at 614. Indeed, timely

13 process is required to ensure that ORR is not allowing Class Members to languish in

14 custody indefinitely. (See SUF ¶ 29; see also Flores v. Sessions, No. 2:85-cv-4544-

15 DMG (AGRx), 2018 WL 10162328, at *21 (C.D. Cal. July 30, 2018) (finding ORR’s

16 policies caused unnecessary delay, at least in part, because (1) they were not required

17 by the TVPRA or FSA, and (2) were not deemed necessary in analogous state child

18 welfare contexts); Flores v. Barr, No. CV 85-4544-DMG (AGRx), 2020 WL 2758798,

19 at *3 (C.D. Cal. Apr. 10, 2020) (“Any unnecessary delay in releasing a minor is, under

20 normal circumstances, a violation of the FSA . . . .”).

21

Even so, it is undisputed that “ORR does not have a policy requiring it to make a

22 final suitability determination regarding a proposed sponsor within any specific

23 timeline.” (SUF ¶ 96.) In fact, Defendants admit that “it may take several months before

24 ORR reaches a conclusion concerning whether a proposed sponsor is capable of

25 providing for a child’s physical and mental well-being and is otherwise suitable.” (SUF

26

27
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16 ORR similarly uses vague criteria to assess a sponsor’s ability to care for a child’s mental health needs prior to authorizing release. (See SUF ¶ 58.)

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1 ¶ 66; see also SUF ¶ 48 (ORR’s choice to require all household members to submit

2 fingerprints can cause “significant[] delay[].”); SUF ¶¶ 44–45 (home studies prolong

3 detention). Even after ORR makes its final determination, ORR policy does not require

4 that proposed custodians other than parents or legal guardians be notified of the

5 determination within any set time period. (SUF ¶ 72.)

6

The undisputed evidence also confirms that children are often in ORR custody

7 for significant periods of time even when they have available sponsors. Gabriela N., for

8 example, was in ORR custody for 633 days—nearly two years—despite her grandfather

9 being ready and willing to sponsor her release. (SUF ¶ 25.) ORR rejected Gabriela N.’s

10 grandfather’s sponsorship application and failed to provide written notice of its

11 rejection—or the reasons for that rejection—to Gabriela N. or her grandfather. (SUF

12 ¶ 85.) Lucas R. was in ORR custody for 208 days, despite two different siblings

13 applying to sponsor him. (SUF ¶ 26, 49.) These experiences are representative of other

14 Class Members who have been detained for extended periods of time in ORR custody,

15 at least one of whom was in ORR custody for more than four years. (SUF ¶ 27; see also

16 Stanley v. Ill., 405 U.S. 645, 647 (1972) (even a temporary deprivation of the right to

17 family integrity is constitutionally significant); D.B. v. Cardall, 826 F.3d at 741 (ORR’s

18 continued and prolonged detention of children “implicates protected liberty interests”);

19 cf. In re Robin M., 21 Cal. 3d 337, 342-43 (1978) (expressing disapproval over “the

20 practice of detaining a child one to six months prior to [a] juvenile court hearing” as

21 inconsistent “with the protective philosophy of the juvenile court”).)

22

Each of the foregoing failures, and the risk of erroneous deprivation, is further

23 compounded by substantial, undisputed evidence of the inherent harm in detention.

24 (SUF ¶¶ 1–4, 6–7.) Accordingly, the Court should order ORR to comply with the

25 timelines set forth in the concurrently filed Proposed Order.

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(iv) ORR’s failure to provide counsel to challenge release denials harms Plaintiffs’ interests.

Plaintiffs’ right to counsel is both constitutionally and statutorily guaranteed, see

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1 infra Section V, and the importance of counsel in legal proceedings where life or liberty

2 is at stake is beyond cavil. The right to be heard is of “little avail if it d[oes] not

3 comprehend the right to be heard by counsel. Powell v. Alabama, 287 U.S. 45, 68-69

4 (1932). 5 6

(v) ORR’s failure to provide interpreters harms Plaintiffs’ interests.

7

Appellate and district courts have routinely held that due process requires the

8 assistance of an interpreter, including in the immigration context. See Augustin v. Sava,

9 735 F.2d 32, 36–37 (2d Cir. 1984); Rivera v. Granucci, 1993 WL 76202, at *6 (D.

10 Conn. Mar. 12, 1993).

11

In a judicial proceeding where a defendant lacks the ability to speak or

understand English, an interpreter can be essential for ensuring a fair trial.

12

. . . Under the Court Interpreters Act, a trial judge must use an interpreter

13

in the courtroom if that judge determines that a party “speaks only or

primarily a language other than the English language . . . so as to inhibit

14

such party’s comprehension of the proceedings or communication with

15

counsel or the presiding judicial officer.”

16 United States v. Si, 333 F.3d 1041, 1042 (9th Cir. 2003) (quoting 28 U.S.C.

17 § 1827(d)(1)).

18

It is undisputed that ORR’s written policies do not guarantee the right to an

19 interpreter. (SUF ¶ 264.) Class Members nonetheless have the right to notice and an

20 opportunity to be heard and should be entitled to an interpreter as part of that process.

21

(vi) ORR’s failure to afford due process runs contrary to prevailing state and federal child welfare

22

practices.

23

“Appellate tribunals have accorded district courts broad discretion to frame

24 equitable remedies so long as the relief granted is commensurate with the scope of the

25 constitutional infraction.” Todaro v. Ward, 565 F.2d 48, 54 n. 7 (2d Cir.1977) (citations

26 omitted). Due process likewise “is flexible and calls for such procedural protections as

27 the particular situation demands.” Mathews, 424 U.S. at 334–35.

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State and other federal systems provide useful analogs for the types of protections

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1 and safeguards necessary here. See Schad v. Arizona, 501 U.S. 624, 640 (1991) (In

2 certain cases, a “widely shared practice” can help inform whether a particular practice

3 so drastically departs from accepted norms as to be presumptively violative of due

4 process). For example, in California, child welfare agencies must promptly involve the

5 juvenile court whenever the agency removes a child from their home. (Ex. 53 [Edwards

6 Expert Rep.] at 1334.) The juvenile court in turn provides a number of procedural

7 protections to children separated from their families, including the right to notice and

8 an opportunity to be heard, the right to a trained, neutral factfinder who applies

9 consistent evidentiary standards, and the right to appeal. (Id. at 1335.)

10

Indeed, dependency hearings are “evidentiary hearings, where children have the

11 right to review and rebut adverse evidence, including rebutting the evidence of adverse

12 witnesses.” (Id. at 1336.) And the system relies upon “[c]lear statutory timelines” for

13 hearings and dispositions, which “move children’s cases forward toward timely

14 permanency.” (Id. at 1337.) As explained by Plaintiffs’ expert, Judge Leonard Edwards,

15 “the procedural protections afforded to children and youth in the U.S. child welfare

16 system improve the quality of the decisions made in dependency proceedings and

17 minimize the risk of erroneous deprivation of the rights of children in the child welfare

18 system.” (Id. at 1326, 1338; see also Ex. 54 [Heldman Expert Rep.] at 1350 (finding

19 that “ORR’s policies and procedures for transferring and keeping children in restrictive

20 settings are far more informal and prone to error when compared to the procedures

21 provided in state and federal juvenile justice and child welfare statutes.”).) According

22 to Judge Edwards: “In most of the thousands of cases I heard, what happened at the

23 court hearing . . . modified in some way the recommendation of the social worker.”

24 (Ex. 53 [Edwards Expert Rep.] at 1339.) By contrast, the undisputed facts show that

25 FFS—and therefore ORR—have virtually unfettered discretion to deny Plaintiffs’

26 liberty interests and, further, that Plaintiffs have no ability to challenge those decisions.

27 (SUF ¶¶ 37, 46, 57–59, 77–80; see also Ex. 53 [Edwards Expert Rep.] at 1339

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(concluding that ORR’s procedures “fall far short of the procedures provided in the U.S.

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1 child welfare system”); Ex. 54 [Heldman Expert Rep.] at 1354 (pointing out that “in the

2 child welfare system, procedural protections center on the rights of parents and children

3 to maintain the parent-child relationship”).)

4

More process will improve government decision-making and reduce the risk of

5 erroneous deprivation of the substantial liberty interests at stake. Accordingly, this

6 Court should compel ORR to: (i) provide adequate notice and an opportunity to be heard

7 with respect to release decisions; (ii) articulate and adhere to clear standards in its

8 decision-making; (iii) adhere to timelines to ensure prompt release; (iv) provide the

9 right to counsel in release proceedings; and (v) guarantee interpreters.

10

c. Plaintiffs’ liberty interests far outweigh the government’s

interest. 11

12

The government’s interest is “to place a child in a home suited to the child’s

13 welfare and needs,” and “that goal [i]s best served by ‘procedures that promote an

14 accurate determination of whether [custodians] can and will provide a normal home.’”

15 J.E.C.M., 352 F. Supp. 3d at 586 (quoting Santosky, 455 U.S. 745); see also Lassiter v.

16 Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 27 (1981) (“Since the State has an

17 urgent interest in the welfare of the child, it shares the parent’s interest in an accurate

18 and just decision.”).

19

Here, Plaintiffs’ interests in being free from detention and to familial association

20 far outweigh the government’s interests, fiscal, administrative or otherwise. See

21 Beltran, 222 F. Supp. 3d at 482 (Defendants must make “strong showing under the

22 second and third [Mathews] factors” in light of substantiality of Plaintiffs’ interests);

23 see also Flores-Chavez v. Aschcroft, 362 F.3d 1150, 1161 (9th Cir. 2004); Rivera v.

24 Cty. Of Los Angeles, 2011 WL 2650006, at *13 (C.D. Cal. July 5, 2011). To be sure,

25 ORR denies that the principal reason it does not afford Class Members greater

26 procedural protections is because it would entail greater expense and administrative

27 inconvenience. (SUF ¶ 81.)

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Accordingly, the Court should find that Defendants have failed to afford

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1 Plaintiffs with basic due process protections and enter the relief requested in Plaintiffs’

2 Proposed Order filed concurrently herewith.

3

2. ORR’s restrictive placement policies and procedures are

constitutionally inadequate.

4

a. Plaintiffs’ interests are substantial. 5

6

Plaintiffs’ interests in freedom from detention and familial association are

7 substantial. See, e.g., Schall, 467 U.S. at 265 (freedom from institutional restraints);

8 Singh, 638 F.3d at 1208; Foucha, 504 U.S. at 80; Beltran, 222 F. Supp. 3d at 482; see

9 supra Section IV.A. Even more so when placed in ORR’s secure detention facilities

10 which are akin to jails and prisons. (SUF ¶ 128; supra Section II.C.) Children are

11 confined to locked facilities, subject to 24-hour surveillance, and treated like criminals.

12 (SUF ¶ 131.) They sleep in cells on concrete beds and are subject to being pepper

13 sprayed by guards. (SUF ¶ 130.) In RTC facilities, children face the added indignity of

14 being forced to take psychotropic medications. (SUF ¶¶ 133–34.)

15

Moreover, once stepped up: (i) children spend significantly longer detained and

16 separated from family—on average 131.2 days longer than children not stepped up

17 (SUF ¶ 141); (ii) children remain in restrictive placements despite ORR’s having found

18 them suitable for step-down (SUF ¶ 137); (iii) children detained in secure, staff-secure,

19 therapeutic staff-secure, RTCs, OON facilities, or therapeutic group homes are less

20 likely to be reunified with a proposed custodian (SUF ¶¶ 144–45), and more likely to

21 voluntarily depart the United States than children who are only ever placed in shelter

22 care (SUF ¶¶ 146–47); and (iv) children who are stepped up are unlikely to be released

23 to URM programs (SUF ¶¶ 148–49), and are ineligible for step-down to long-term

24 foster care programs (SUF ¶ 139). Even more concerning, restrictive placements can

25 lead to deterioration of children’s mental health (SUF ¶ 136), and ORR admits that

26 failing to step-down children who are ready for step-down can be detrimental to their

27 long-term psychological well-being and contrary to their best interests. (SUF ¶ 138).

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Accordingly, it is uncontroverted that the step-up Class Members’ interest is

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1 significant and substantial. Thus, the first Mathews factor weighs strongly in favor of

2 due process protections.

3

b. Plaintiffs have been prejudiced by ORR’s erroneous

deprivations of liberty in its step-up and step-down

4

decisions and the value of additional safeguards is

undisputable. 5

6

The prejudice and risk of erroneous deprivation of placing children in restrictive

7 facilities without commensurate procedural safeguards is high, particularly when it

8 results in children spending much longer time in ORR custody away from family. (See

9 supra Section II.C.) ORR’s opaque process also has resulted in numerous erroneous

10 decisions—either sending children to unnecessarily restrictive detention centers where

11 children suffer long lasting harms or keeping children in restrictive placements even

12 after a step-down decision is made. (SUF ¶¶ 137, 218–19.) Indeed, even once ORR

13 finds a child suitable for step-down, the step-down process can take several weeks and

14 sometimes even several months. (SUF ¶ 155.)

15

For example, Defendants admit that Class Representative Jaime D. was detained

16 in a secure detention center and kept there three weeks after it was determined that he

17 had been erroneously placed there in the first place. (SUF ¶¶ 218–19; ECF No. 144

18 [Azar Answer] ¶ 75 (Defendants admitting that two weeks after transfer to Yolo, “staff

19 were all in agreement that [Jaime] isn’t appropriately placed in a secure setting” and

20 that nonetheless Jaime stayed at Yolo for three more weeks).) Additionally, ORR’s own

21 compliance review of secure facilities revealed that “the majority of the kids [ ] were

22 inappropriately sheltered.” (Ex. 19 [Ray Dep. Tr.] at 163:19–25;17 see also SUF ¶ 218.)

23 Likewise, the review showed that placement of over 70% of kids in staff-secure and

24 RTCs was non-compliant with ORR’s own policies and this Court’s orders. (Ex. 23

25 [Fink Dep. Tr.] 153:8–13; SUF ¶ 218.)18

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17 All citations to deposition transcripts refer to original pagination. 18 The compliance review revealed even more failures in ORR’s step-up and step-down

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1

Defendants also admit that needlessly placing children in restrictive facilities or

2 failing to step them down from restrictive facilities is contrary to their best interests.

3 (SUF ¶¶ 116, 138.) Yet ORR’s current process allows for little to no oversight of

4 decisions related to restrictive placement. Accordingly, the Court should order ORR to

5 provide: (i) adequate notice and an opportunity to be heard; (ii) clear standards to

6 initially place, step-up, or step-down children; (iii) counsel to challenge restrictive

7 placements; (iv) automatic hearings before a neutral factfinder; (v) interpreters; and

8 (vi) periodic hearings on placement decisions.

9

(i) ORR’s failure to provide Class Members adequate

notice and an opportunity to be heard harms

10

Plaintiffs’ interests.

11

Due process requires notice and an opportunity to be heard, particularly where,

12 as here, “subjective judgments are . . . susceptible to error.” Beltran, 222 F. Supp. 3d at

13 486. Indeed, “even when all parties involved in this process act with diligence and good

14 faith, there is considerable risk of error in the tribunal’s findings of fact. There is a risk

15 inherent in any process that . . . is closed and accusatorial.” Boumediene, 553 U.S. at

16 785 (quoting Bismullah v. Gates, 514 F. 3d 1291, 1296 (D.D.C. 2008) (Ginsburg, C.J.,

17 concurring)). Confining children in secure juvenile detention, where they “can’t freely

18 walk out the door” or are “locked in a cell” entails important liberty interests because

19 such detention departs from ordinary standards. See E.J. v. Templeton, No. 3:16-cv-

20 01975, 2017 WL 2080182, *7 (M.D. Tenn. May 15, 2017) (finding Fourteenth

21 Amendment protects juveniles from denial of liberty interest in avoiding incarceration

22 in secure detention facility because such confinement drastically departs from the

23 “ordinary standards” of juvenile detention). Accordingly, a “factfinding process” is

24

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processes, including instances where children remained in secure and RTC placements even after such placement was no longer appropriate. (SUF ¶ 219; Ex. 19 [Ray Dep. Tr.] at 170:19–23; SUF ¶¶ 218–19; Ex. 22 [Fields Dep. Tr.] at 148:8–23 (admitting there were “quite a few children” for whom the psychiatrist had recommended step down or reunification, but who were still at Shiloh RTC).)

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1 required to protect children from erroneous detention in restrictive placements,

2 including psychiatric facilities and juvenile detention centers. See Saravia, 280 F. Supp.

3 3d at 1199.

4

For over 50 years, the Supreme Court has recognized that detained children must

5 be provided notice “sufficiently in advance of scheduled [hearings] so that reasonable

6 opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct

7 with particularity.’” In re Gault, 387 U.S. 1, 33 (1967). Similarly, in the civil

8 commitment context, notice is “essential to afford the [individual] an opportunity to

9 challenge the contemplated action and to understand the nature of what is happening to

10 him.” Vitek, 445 U.S. at 496.

11

Here, there is no dispute that ORR does not require that a child and/or his or her

12 parent or other potential custodian be provided any prior notice that he or she may be

13 stepped up or the reasons for step-up (SUF ¶¶ 179, 181), and that Class Representatives

14 were stepped up without written notice to them or their potential sponsors of the basis

15 for restrictive placement prior to step-up. (SUF ¶¶ 180, 182; see also Ex. 70 [K.S.G.P.

16 Decl.] ¶ 2 (minor was not informed of the reason for transfer prior to or subsequent to

17 her second placement at Shiloh RTC); Ex. 82 [Y.A.M.S. Decl.] ¶¶ 27, 42 (“I arrived at

18 the Yolo . . . in December 2016 and have been detained here ever since. . . . I have never

19 been told why I am here, had a chance to present any evidence on why I should not be

20 here, or been given any notice of any classification review.”).)

21

Although ORR requires that a child receive a NOP within 48 hours following

22 step up, i.e. after the decision has been made, such notice is inadequate where it is

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undisputed that: (1) ORR procedures do not require that the notice be provided within the same time frame to children placed in out-of-network facilities, or to children placed in therapeutic group homes at all (SUF ¶¶ 184–85); (2) Children do not always receive a NOP within 48 hours after arrival at a restrictive placement (SUF ¶ 188); (3) Children do not consistently know or understand the reasons for restrictive placement and are not consistently informed and sometimes

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1

do not understand the contents of the notice (SUF ¶¶ 189–90);

2

(4) The NOP does not include documents or other evidence supporting the

step-up decision (SUF ¶ 192); and

3

(5) Children are not given adequate opportunity to respond to the NOP (SUF

4

¶¶ 201–02, 204).

5 Providing notice after step-up has occurred without the documents or evidence used to

6 make the decision, fails to afford the child enough time to confront the evidence to

7 understand what is happening and an opportunity to challenge the contemplated

8 deprivation. See In re Gault, 387 U.S. at 33; Vitek, 445 U.S. at 495–96. Further, notice

9 without an opportunity to respond is worthless. Saravia, 905 F.3d at 1144 (“Due process 10 always requires, at minimum, notice and an opportunity to respond.”) (quoting United

11 States v. Raya-Vaca, 771 F. 3d. 1195, 1204 (9th Cir. 2014), abrogated on other grounds

12 by Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020)).

13

Finally, the Government faces minimal burdens in providing adequate notices.

14 See Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 805 (9th Cir. 2004) (cost of

15 adding written notice is “minimal”); Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 16 1998) (“Providing constitutionally adequate notice requires only minor changes in the

17 content of [INS] forms themselves and equally slight adaptations in the INS’s method

18 of presenting the forms.”). Especially here, where it is undisputed that the evidence is 19 compiled and reviewed by Case Managers, reviewed by Case Coordinators before 20 making a recommendation, and then sent to FFS for final decision-making. (SUF ¶ 162– 21 63, 167–68.) The same evidence could easily be shared with the child and his or her 22 legal representative contemporaneously with the evidence being shared with the Case 23 Coordinator and FFS.

24

Defendants also admit that no hearing is afforded to children prior to or after step-

25 up (SUF ¶¶ 193–99, 204), and there is no constitutionally adequate opportunity to be

26 heard. Given the deprivation of liberty, the substantial private interest at stake, and the

27 risk involved, due process requires that such hearing occur pre-deprivation––prior to

28 initial placement or step-up to a restrictive setting. See Zinermon, 494 U.S. at 127–28

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1 (due process generally requires “some kind of a hearing” before a deprivation of

2 protected liberty interests) (emphasis added). While the Supreme Court has made

3 exceptions for situations “where a predeprivation hearing is unduly burdensome in

4 proportion to the liberty interest at stake . . . or where the State is truly unable to

5 anticipate and prevent a random deprivation of liberty interest,” id. at 132 (internal

6 citations omitted), such exceptions are inapplicable here.

7

Indeed, it is highly predictable that a child could be erroneously deprived of his

8 or her interest where the child, parent, sponsor and/or the child’s attorney or

9 representative is not notified or made part of the decision-making process (SUF ¶¶ 164–

10 65, 170–73, 179, 234–39, 244), no hearing or opportunity to respond is afforded (SUF

11 ¶¶ 193–95), and decision-makers are given no evidentiary standard to apply and little

12 to no guidance on how to weigh factors or assess criteria, like danger to self or others

13 (SUF ¶¶ 176–78). It is also feasible to provide pre-deprivation hearings and notice

14 where ORR steps up relatively few children (SUF ¶ 222), making the administrative

15 burden minimal at most. Despite the predictability and feasibility of providing a pre-

16 deprivation opportunity to be heard, ORR policy and practice does not afford children

17 an opportunity to challenge a decision to place them in a restrictive setting before such

18 placement occurs. (SUF ¶¶ 193–95.)

19

Even after placement in a restrictive setting, children are not provided an

20 opportunity to challenge their placement in an evidentiary hearing. (SUF ¶ 204.)19

21 Although some children are afforded an opportunity to request reconsideration of

22 placement, this request for reconsideration is inadequate because:

23

(1) Only children placed in RTCs and secure facilities are afforded this

opportunity, but not children placed in staff-secure, therapeutic staff-

24

secure, or therapeutic group homes (SUF ¶¶ 201–02);

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19 Class representatives Lucas R. Gabriela N., Daniela Marisol, Sirena P., and Benjamin F. were stepped up to an RTC, and Jaime D. was stepped up to secure juvenile detention without being provided an evidentiary hearing to challenge the step-up decision. (SUF ¶ 195.)

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(2) Children are not heard by a neutral factfinder (SUF ¶ 187; see infra Section

IV.D.2.b.ii);

2

(3) Children have no ability to inspect or rebut information relied upon in

3

making a placement decision (SUF ¶ 215);

4

(4) Children have no opportunity to present witnesses or evidence on their own

behalf (SUF ¶ 204); and

5

(5) Children have no chance to cross-examine adverse witnesses (SUF

6

¶ 199).20

7 See Vitek, 445 U.S. at 494–95 (Due process requires “an opportunity to be heard in

8 person and to present documentary evidence,” as well as “[a]n opportunity at the

9 hearing to present testimony of witnesses by the defense and to confront and cross-

10 examine witnesses called by the state, except upon a finding, not arbitrarily made, of

11 good cause for not permitting such presentation, confrontation, or cross-examination.);

12 Schall, 467 U.S. at 277 (due process satisfied where accused juvenile was provided a 13 hearing to call witnesses and offer evidence on his own and where government was

14 allowed to call witnesses under oath and witnesses were subject to cross examination);

15 In re Gault, 387 U.S. at 57 (“absent a valid confession, a determination of delinquency

16 and an order of commitment to a state institution cannot be sustained in the absence of

17 sworn testimony subjected to the opportunity for cross-examination in accordance with

18 our law and constitutional requirements”).

19

Moreover, in Saravia v. Sessions, the Ninth Circuit upheld a preliminary

20 injunction that provided detention hearings for children who were rearrested by ICE

21 and placed in ORR custody. 905 F.3d at 1141, 1144–45 (finding no abuse of discretion 22 where district court required prompt hearing before a neutral decisionmaker at which

23 the minors could contest gang allegations and government would need to justify

24 detention based on allegations). There is no reason the same process should not be

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20 Class representatives Lucas R. Gabriela N., Daniela Marisol, Sirena P., and Benjamin F. were stepped up to an RTC, and Jaime D. was stepped up to secure juvenile detention without being provided an opportunity to cross-examine witnesses in an evidentiary hearing regarding step-up or placement in a restrictive setting. (SUF ¶ 200.)

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1 afforded to all children ORR steps up to restrictive detention centers based on similarly

2 one-sided allegations, where the provision of such hearings would be a minimal burden

3 to the government. Id. at 1143 (“district court was well within its discretion to conclude

4 that the cost of transporting minors to the hearing location was not likely to outweigh

5 the benefits provided by its order, given that witnesses and evidence concerning the

6 gang allegations that led to the minor’s current predicament are most likely to be found

7 where they lived”).

8

(ii) ORR’s failure to articulate clear standards to

initially place, step-up, or step-down children

9

harms Plaintiffs’ interests.

10

As discussed supra, courts have disapproved of ORR policies that result in

11 “unfettered discretion . . . to rule over the fate of vulnerable children.” L.V.M., 318 F.

12 Supp. 3d at 609, 611. Yet ORR enjoys virtually unfettered discretion in deciding

13 whether to initially place or step-up or step-down children to more or less restrictive

14 detention centers. First, ORR admits that it does not use any type of evidentiary

15 standard in making detention placement decisions. (SUF ¶ 177.)21 Second, ORR’s

16 written policies offer only limited guidance to case staff for initially placing, stepping

17 up or stepping down children, and no guidance whatsoever on how to weigh information

18 relevant to placement decisions. (SUF ¶ 178.) Further, not all FFS receive formal

19 training on the differences between all of the different restrictive detention centers.

20 (SUF ¶ 175.) And ORR policy provides no standardized metric to assess whether a child

21 is a danger to self or others for step-up to a more restrictive setting—including the most

22 restrictive, jail-like facilities—or “stable enough” for step-down. (SUF ¶¶ 150–51, 176.)

23 Third, ORR’s written policies and procedures on initial placements, step-up, and step-

24
25
26
27
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21 In contrast, courts uniformly require a showing of “clear and convincing evidence” for involuntary civil commitment, Addington, 441 U.S. at 432–33; Hubbart v. Knapp, 379 F.3d 773 (9th Cir. 2004) (same), and “proof beyond a reasonable doubt” if a juvenile is to be confined in juvenile detention. In re Winship, 397 U.S. 358, 368 (1970). The Ninth Circuit has also required the “clear and convincing evidence” standard of proof for prolonged immigration detention. Singh, 638 F.3d at 1203–05.

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1 down change frequently (SUF ¶ 160), are not always consistent (SUF ¶ 159), and are

2 not published in the Federal Register or a Notice of Proposed Rulemaking and are

3 therefore shielded from public scrutiny (SUF ¶ 158). Fourth, FFS make final placement

4 decisions based on information and evidence provided by case staff, which is not always

5 accurate (SUF ¶ 169), and do not independently interview the children and/or their

6 potential sponsors to aid in their decision-making (SUF ¶ 170–73).22 Fifth, in most

7 cases, FFS placement decisions are not subject to review (SUF ¶ 174), and FFS may

8 disregard recommendations of case staff when making such decisions (SUF ¶ 167).

9 Additionally, an FFS holds all the power to decide whether a placement review can

10 occur earlier than 30 days. (SUF ¶ 211). Power, like that given to an FFS, “exercised

11 entirely at the[ir] discretion . . . is a broad, roving authority, a type of administrative

12 absolutism not congenial to our law-making traditions.” Gutknecht v. United States, 396

13 U.S. 295, 306 (1970).

14

(iii) ORR’s failure to provide counsel to challenge

restrictive placements harms Plaintiffs’ interests. 15

16

As discussed, a right to be heard is concomitant with the right to counsel. (See

17 supra Section IV.D.1.b.iv.) Because these children have a fundamental liberty interest

18 at stake, there is no doubt that the right to counsel is constitutionally mandated—

19 especially where the detainee is a vulnerable unaccompanied child. (See infra Section

20 V.)

21

(iv) ORR’s failure to provide automatic hearings before

22

a neutral factfinder harms Plaintiffs’ interests.

23

Procedural due process also requires an automatic hearing by a neutral factfinder.

24 (See supra Section IV.B.; Morrisey v. Brewer 408 U.S. 471, 485 (1972); see also

25 Zadvydas, 533 U.S. at 692 (recognizing this Court has suggested that “the Constitution

26
27
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22 An FFS did not interview class representatives Lucas R., Gabriela N., Daniela Marisol, Sirena P., Benjamin F., or Jaime D. before stepping them up to restrictive settings. (SUF ¶¶ 171–72.)

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1 may well preclude granting ‘an administrative body the unreviewable authority to make

2 determinations implicating fundamental rights’”) (quoting Superintendent, Mass. Corr.

3 Inst., Walpole v. Hill, 472 U.S. 445, 450 (1985)).) The undisputed facts show that

4 ORR’s written policies do not guarantee Class Members the right to a hearing before a

5 neutral factfinder in connection with decisions to detain a child in a restrictive

6 placement, despite the fact that all 50 states and the District of Columbia require a

7 hearing before a neutral factfinder before a child can be detained in a secure facility,

8 and a majority of the states provide the same for children placed in staff-secure facilities.

9 (SUF ¶¶ 74, 207.)

10

Further, due process tilts overwhelmingly in favor of automatic hearings to

11 ensure Class Members’ ongoing prolonged confinement in restrictive detention centers

12 remains justified. First, “[t]he private interest here—freedom from prolonged

13 detention—is unquestionably substantial.” Singh, 638 F.3d at 1208. Prolonged

14 confinement imposes not only lengthy physical restraint, but also loss of familial

15 association. Second, the record evidence establishes that erroneous deprivations of

16 liberty occur without automatic hearings and adequate notice. Many Class Members

17 lack English proficiency or literacy in any language meaning that due process can only

18 be achieved if a child’s hearings are automatic. See Walters, 145 F.3d at 1043 (striking

19 down INS procedures in part because “the alien never learns how to take advantage of

20 the procedures because the combined effect of all the [immigration] forms together is

21 confusion”) (emphasis in original); see also Gallinot, 657 F.2d at 1023 (lack of

22 automatic hearings rendered process “illusory” because detainees “cannot realistically

23 be expected to set the proceedings into motion in the first place”).

24

In similar juvenile proceedings, children’s deprivation hearings occur as of right

25 and the onus is never placed on a child to prove that they should not be deprived of

26 liberty. (Ex. 144 [Quinn Expert Rep.] at 2050.) According to Professor Mae Quinn, who

27 has nearly thirty years of experience in juvenile and criminal court systems throughout

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the United States, it is self-evident that, before a youth is “exposed to a secure detention

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1 setting for a prolonged period, there needs to be a hearing provided in an automatic way,

2 that is the youth shouldn’t have the [burden of requesting it].” (Ex. 32 [Quinn Dep. Tr.]

3 at 91:1–3.) Finally, the Government faces minimal burdens in scheduling automatic

4 hearings and has denied cost is a principal factor. (SUF ¶ 225.) Thus, requiring ORR to

5 institute procedural safeguards before detaining children in restrictive placements will

6 lessen any burden by avoiding costly and unnecessarily prolonged detentions.

7

(v) ORR’s failure to provide interpreters harms

8

Plaintiffs’ interests.

9

As discussed, courts routinely hold that due process requires the assistance of an

10 interpreter. (See supra Section IV.D.1.) This right is particularly important where, as

11 here, the vast majority of children neither speak nor understand English. (SUF ¶ 226.)

12 Accordingly, children in ORR custody are entitled to a qualified interpreter when

13 challenging ORR’s decisions with respect to restrictive placement.

14

(vi) ORR’s failure to provide periodic hearings on

15

placement decisions harms Plaintiffs’ interests.

16

The Ninth Circuit has specifically held that immigrants at risk of prolonged

17 detention are entitled to individualized periodic review at which they must be released

18 unless the government establishes—through a formal hearing adjudicated by an

19 immigration judge—that they are a flight risk or danger to the community. Diouf v.

20 Napolitano, 634 F.3d 1081, 1091–92 (9th Cir. 2011). Children at risk of indefinite

21 detention in ORR custody are therefore entitled to individualized periodic reviews of

22 their placement in restrictive facilities and such reviews must include the full panoply

23 of procedural rights.

24

Likewise, “it is necessary that the child’s continuing need for commitment be

25 reviewed periodically by a similarly independent procedure” as provided upon

26 confinement. Parham, 442 U.S. at 607. In Parham, periodic reviews were conducted

27 by “at least one independent, medical review group” and were “as frequent as weekly,

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1 but none are less often than once every two months.” Id. at 615. The court did not rule

2 on whether this review was sufficient but rather held that the periodic review provided

3 reduced the risk of error and therefore was necessary. Id. at 617. Similarly, recognizing

4 the risk of error and risk of prolonged or indefinite detention in the juvenile justice

5 context, a majority of states, statutes and court rules explicitly ensure that detention of

6 a juvenile in a secure detention facility does not continue indefinitely without court

7 review. (Ex. 54 [Heldman Expert Rep.] at 1353 & App’x B (citing to 30 state statutes

8 or court rules).)

9

Although ORR policy provides for placement reviews at least every 30 days a

10 child spends in a restrictive placement (SUF ¶ 209), the evidence shows that ORR has

11 failed to provide the reviews under the mandated timeframe. (SUF ¶ 212.)23 And even

12 when it does provide a 30-day review, the review is meaningless where children are not

13 permitted to and do not participate or submit evidence (SUF ¶ 213),24 and are not

14 allowed an opportunity to cross-examine witnesses (SUF ¶ 216).25

15

(vii) ORR’s failure to afford adequate due process

protections runs contrary to prevailing state and

16

child welfare practices.

17

The safeguards Plaintiffs are seeking have long since been standard protocol both

18

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23 Failure to provide children placed in secure facilities a placement review “at minimum, on a monthly basis” is also a violation of the TVPRA. See 8 U.S.C. § 1232(c)(2). Agency action “not in accordance with the law,” like the TVPRA, not only violates the APA under 5 U.S.C. § 706(2)(A), but also constitutes “agency action unlawfully withheld” under § 706(1). Ramirez v. U.S. Immigr. & Customs Enf’t, --- F. Supp. 3d ----, 2020 WL 3604041, *83 (D.D.C. July 2, 2020); see also infra Section VI.
24 Class representatives Lucas R. Gabriela N., Daniela Marisol, Sirena P., Jaime D., and Benjamin F. participated in case management meetings with their Case Managers, but they were not a part of the case staffing meetings that occurred between Case Managers, Clinicians, Case Coordinators, and the FFS to discuss their cases. (SUF ¶ 214.)
25 Class representatives Lucas R. Gabriela N., Daniela Marisol, Sirena P., Jaime D., and Benjamin F. were not provided an opportunity to cross-examine witnesses in an evidentiary hearing regarding eligibility for step-down. (SUF ¶ 217.)

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1 at the state and federal level. See Schad, 501 U.S. at 640. Plaintiffs’ expert, Professor

2 Jessica Heldman, conducted a review of the laws and policies in all 50 states, as well as

3 federal law and policy, relating to detention and placement of children and youth in

4 secure and staff secure settings within juvenile justice systems. (Ex. 54 [Heldman

5 Expert Rep.] at 1349.) Professor Heldman concluded that “the procedural protections

6 afforded children in the juvenile justice and child welfare systems minimize the risk of

7 erroneous and unnecessarily lengthy placements in secure and staff secure settings

8 which can be harmful and traumatic.” (Id. at 1350.)

9

More specifically, Professor Heldman found that in all 50 states plus the District

10 of Columbia, children are “entitled to a hearing when they are placed in a secure

11 detention facility.” (Id. at 1351.) Broken down by time frame, 19 states require a

12 detention hearing within 24 hours of a youth entering a secure facility; 16 states within

13 48 hours; and 12 states within 72 hours. In comparison, ORR provides no time frame

14 nor an automatic right to a detention hearing at all. Instead, children are expected to

15 pursue federal court review or ORR Director review on their own. This is unrealistic

16 when ORR does not provide counsel to children in restrictive placements to challenge

17 their placement. In 41 states plus the District of Columbia, there is an explicit right to

18 an attorney in a detention hearing; in the 9 other states, counsel is provided “either ‘at

19 all proceedings’ or ‘at all stages of proceedings’ under the juvenile delinquency code.”

20 (Id. at 1352.) Additionally, the “majority of states have written policies—through

21 statute, court rules, or both—indicating that all juveniles have a right to notice prior to

22 their detention hearing.” (Id.)

23

Professor Heldman concluded that “the most basic state law protections

24 providing the right to a hearing, representation by an attorney, and an opportunity to be

25 heard with testimony, witnesses and presentment of evidence in determinations

26 regarding placement in a staff secure or secure facility exceed the procedural protections

27 within ORR’s written policies and procedures regarding the placement of children in

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restrictive settings.” (Id. at 1350; SUF ¶ 220.) 50

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1

Meaningful process will improve ORR’s decision-making with respect to

2 restrictive placement and it will bring ORR’s restrictive placement process in-line with

3 the vast majority of states’ juvenile justice protections, as well as in-line with the

4 process due under the Fifth Amendment given the substantial interests at stake and

5 significant risk of erroneous deprivation. Accordingly, this Court should compel ORR

6 to: (i) provide Class Members adequate notice and an opportunity to be heard, with the

7 opportunity to inspect, confront, present and rebut evidence through testimony, if

8 necessary; (ii) articulate clear standards to initially place or step-up or step-down

9 children; (iii) provide Class Members with the right to counsel to challenge their

10 restrictive placement; (iv) provide Class Members the right to automatic hearings before

11 a neutral factfinder regarding their placement; (v) provide interpreters; and (vi) provide

12 periodic hearings on placement decisions.

13

c. Plaintiffs’ liberty interests far outweigh the government’s

interest.

14

15

The government denies that its decision to provide children with no notice or

16 opportunity to be heard is rooted in economic burdens or administrative inconvenience.

17 (SUF ¶ 225.) Nor could the government assert economic or administrative burden as

18 the excuse to unilaterally deprive children of liberty without due process because the

19 burden would be insignificant. See Beltran, 222 F. Supp. 3d at 482; see also Padilla v.

20 Immigration & Customs Enf’t, 953 F.3d 1134, 1142 (9th Cir. 2020) (“In the context of

21 immigration detention, it is well-settled that due process requires adequate procedural

22 protections to ensure that the government’s asserted justification for physical

23 confinement outweighs the individual’s constitutionally protected interest in avoiding

24 physical restraint.”) (internal quotation marks omitted). Moreover, given that it is more

25 expensive to detain children in RTC placements than in shelters (SUF ¶ 221), procedural

26 safeguards that minimize the rate of erroneous placements in RTCs will reduce rather

27 than increase costs to Defendants.

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The number of youth detained in ORR restrictive placements as of March 2020

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1 was a small percentage of the total detained population in ORR custody. (See supra

2 Section II.B.) Of the 3,632 total children in ORR care (in- and out-of-network), 91 were

3 detained in restrictive placements, or less than 2.5% of the total ORR population. (See

4 SUF ¶¶ 222–23). Thus, a minimal financial and administrative burden would be placed

5 on the government to provide these additional protections to less than 2.5% of the total

6 detained population before placing a youth in a restrictive placement.

7 V. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FOURTH CLAIM FOR RELIEF
8

9

“‘The right to be heard would be, in many cases, of little avail if it did not

10 comprehend the right to be heard by counsel.’. . . Counsel can help delineate the issues,

11 present the factual contentions in an orderly manner, conduct cross-examination, and

12 generally safeguard the interests of the recipient.” Goldberg, 397 U.S. at 270–71

13 (quoting Powell, 287 U.S. at 68–69). Since the Supreme Court’s decision in Goldberg,

14 the right of anyone who appears before a federal administrative agency to be represented

15 by counsel has been a hallmark of administrative law: “A person compelled to appear

16 in person before an agency or representative thereof is entitled to be accompanied,

17 represented, and advised by counsel or, if permitted by the agency, by other qualified

18 representative. A party is entitled to appear in person or by or with counsel or other duly

19 qualified representative in an agency proceeding.” 5 U.S.C. § 555(b).

20

Giving children in ORR custody—the vast majority of whom speak no English

21 and have no ability to advocate for themselves within the U.S. legal system—a right to

22 be heard will be of little practical benefit if they are denied effective assistance of

23 counsel. Indeed, Plaintiffs’ right to legal assistance is codified in the TVPRA, see infra

24 Section V.A, and required as a matter of due process, see infra Section V.B.

25 Nonetheless, the undisputed facts confirm that Defendants consistently and effectively

26 deny children legal representation with respect to their release, placement, and

27 medication decisions, see infra Section V.C, and even forbid legal services providers

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from using federal funds to represent children in those decisions, see infra Section V.D.

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1

A. The TVPRA Grants Plaintiffs a Comprehensive Right to Counsel

2

The TVPRA obliges ORR to “ensure, to the greatest extent practicable . . . that

3 all unaccompanied alien children who are or have been in [its] custody . . . have counsel

4 to represent them in legal proceedings or matters and protect them from mistreatment

5 . . . .” 8 U.S.C. § 1232(c)(5) (emphases added). But ORR has never issued regulations

6 or other written guidance on the definition of “legal proceedings or matters” or what

7 amounts to protection “from mistreatment.” (SUF ¶ 270.)

8

Here, there can be little question that ORR detaining children, placing them in

9 high-security facilities like psychiatric facilities and juvenile detention centers, and

10 administering psychotropic medication without parental consent are all “legal

11 proceedings or matters” within the meaning of the TVPRA. Black’s Law Dictionary

12 defines “matter” as a “subject under consideration, esp. involving a dispute or

13 litigation.” Black’s Law Dictionary 442 (11th ed. 2019). And decisions concerning the

14 fitness of custodians, placing children in psychiatric facilities or juvenile detention

15 centers, and medicating children without parental consent are all matters routinely

16 disputed and litigated. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We

17 have little doubt that the Due Process Clause would be offended if a State were to force

18 the breakup of a natural family . . . without some showing of unfitness”) (internal

19 quotation marks omitted); Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (considering

20 ORR’s process for denying children’s release); Flores v. Sessions, No. 2:85-cv-4544-

21 DMG (AGRx), ECF No. 470, at 20–24 (C.D. Cal. July 30, 2018) (considering whether

22 ORR medicating children without informed parental consent violates consent decree);

23 id. at 15–20 (considering whether ORR’s transferring children to restrictive placement

24 violates consent decree).26

25

Accordingly, ORR has a clear statutory obligation to ensure, to the greatest extent

26 26 Nor can there be any credible argument that making such decisions without adequate
27 cause or procedural protections amounts to “mistreatment.” 8 U.S.C. § 1232(c)(5).

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1 practicable, that Plaintiffs have counsel to represent them with respect to release,

2 placement, and medication.27

3

B. Plaintiffs Are Entitled to Counsel as a Matter of Due Process

4

Courts have found that individuals have a due process right to legal counsel in a

5 host of scenarios, including the termination of welfare benefits. Goldberg, 397 U.S. at

6 270–71 (welfare recipient “must be allowed to retain an attorney”). If adult welfare

7 recipients must be allowed to retain an attorney before benefits may be terminated, it

8 must be true that vulnerable, detained, non-English-speaking children facing prolonged

9 detention, step-up, or forced medication are also entitled to counsel. See generally

10 J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011) (children “as a class” “lack the

11 capacity to exercise mature judgment and possess only an incomplete ability to

12 understand the world around them”); see also Tawadrus v. Ashcroft, 364 F.3d 1099,

13 1103 (9th Cir. 2004) (immigrant in removal proceedings entitled to counsel). As for

14 children, the Ninth Circuit also has held that minors in removal proceedings “are

15 entitled to trained legal assistance so their rights may be fully protected . . . .” Jie Lin v.

16 Ashcroft, 377 F.3d 1014, 1033 (9th Cir. 2004). In Jie Lin v. Ashcroft, for example, the

17 Ninth Circuit held that when a child appears in removal proceedings with “obviously

18 unprepared” counsel, an immigration judge must “suspend the hearing and give [the

19 child] a new opportunity to retain competent counsel or sua sponte take steps to procure

20 competent counsel to represent [the child].” 377 F.3d at 1033 (quoting Johns v. Cty. of

21 San Diego, 114 F.3d 874, 877 (9th Cir. 1997)).

22

As discussed supra, ORR’s decisions with respect to release and placement

23 implicate significant liberty interests, including the right to be free from detention, the

24

25
26
27
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27 That denying Plaintiffs access to counsel violates the due process clause (see infra Section V.B.) likewise counsels in favor of interpreting the TVPRA to provide a comprehensive right to counsel. See INS v. St. Cyr, 533 U.S. 289, 300 (2001) (if “fairly possible” to interpret a statute to avoid raising serious constitutional problems, courts must do so).

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1 right to familial association, and the right for children in ORR custody to be placed in

2 the least restrictive setting that is in the best interest of the child. (See supra Sections II,

3 IV.) Just as the Supreme Court and the Ninth Circuit have already found in the context

4 of welfare benefits and immigration proceedings, children detained by ORR have a right

5 to counsel to protect the liberty interests implicated by decisions concerning release,

6 placement, and medication.

7

C. ORR Violates Plaintiffs’ Right to Counsel by Denying Effective

Assistance of Counsel 8

9

ORR obstructs Plaintiffs from receiving effective legal representation in myriad

10 ways, thereby implicating their rights relating to release, placement, and medication

11 decisions. First, as further explained infra in Section V.D, rather than ensuring access

12 to counsel on all the matters contemplated by the TVPRA, ORR limits its funding to

13 immigration matters only. (SUF ¶¶ 271–72.)

14

Second, ORR grants a host of actors and decision-makers—including FFS, Case

15 Coordinators, Case Managers, and Clinicians—broad discretion to communicate (or

16 not) with children’s legal representatives, which makes it difficult, if not impossible,

17 for such representatives to effectively advocate for their clients. (SUF ¶¶ 234–39; see

18 also supra Sections IV.D.) And in some cases, children’s lawyers are excluded entirely

19 from the decision-making process. (E.g., SUF ¶ 251 (children’s lawyers excluded from

20 30-day reviews of placement in high security facilities); SUF ¶ 255 (ORR policy

21 provides for no prior notice of step-up decisions).)

22

Third, even when a child’s attorney is able to speak with someone in ORR’s

23 decision-making tree, she often does so without the benefit of having been given all the

24 evidence and information that ORR relied upon for its decision—decisions that

25 significantly affect children’s liberty interests. (SUF ¶¶ 241, 243–44, 246, 254, 259);

26 see also supra Section IV.D.)

27

Fourth, ORR’s policies and practices deny attorneys any meaningful opportunity

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to present affirmative evidence to rebut ORR’s adverse decisions. (SUF ¶ 252; see also

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1 supra Sections IV.D.) In other words, ORR’s policies provide legal counsel no role

2 whatsoever in decisions impacting their clients’ lives.

3

Subjecting children to decisions relating to release, placement and medication

4 without affording meaningful access to legal counsel is incompatible with Plaintiffs’

5 rights to counsel, grounded in both the TVPRA and the Constitution.28

6

D. ORR Unlawfully Bars Legal Service Providers from Using Federal

Funding to Represent Children with Respect To Release, Placement,

7

and Administration of Psychotropic Medication

8

Defendants admit that they forbid legal services providers from using federal

9 funds to represent children in opposition to ORR’s wishes. (SUF ¶¶ 271–72.) But

10 Congress specifically gave children whom ORR takes into its custody the right to legal

11 representation in legal matters and to protect them from mistreatment in the TVPRA:

12

The Secretary of Health and Human Services shall ensure, to the greatest

13

extent practicable and consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied alien children

14

who are or have been in the custody of the Secretary or the Secretary of

15

Homeland Security . . . have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and

16

trafficking.

17 8 U.S.C. § 1232(c)(5) (emphasis added); see also Homeland Security Act of 2002,

18 § 462(b) Pub. L. No. 107-296, 116 Stat. 2135 (2002) (“HSA”) (“[T]he Director of the

19 Office of Refugee Resettlement shall be responsible for . . . developing a plan to be

20 submitted to Congress on how to ensure that qualified and independent legal counsel is

21

22 28 ORR’s attempt to exclude attorneys from the process altogether is significantly more
23 egregious than other cases finding violations of the right to counsel. See, e.g., Mosley
24 v. St. Louis Southwestern Railway, 634 F.2d 942, 945–56 (5th Cir. 1981) (finding violation of right to counsel where EEOC investigator denied plaintiff opportunity to
25 discuss proposed settlement with lawyer); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 492 (3d
26 Cir. 1980) (finding violation of right to counsel where appeals referee questioned disability applicant outside presence of attorney, concluding that such “ex parte
27 questioning is inconsistent with the right to be represented by counsel”).

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1 timely appointed to represent the interests of each such child . . . .”) (emphasis added).29

2

Accordingly, the Court should order ORR to allow legal services providers to use

3 federal funds to represent children in release, placement, and medication decisions.

4 VI. PLAINTIFFS ARE ALSO ENTITLED TO SUMMARY JUDGMENT ON

THEIR FIRST, SECOND, AND FOURTH CLAIMS FOR RELIEF

5

UNDER THE APA

6

Federal courts have jurisdiction to review final agency decisions and compel a

7 federal officer to perform a duty owed to a plaintiff. 5 U.S.C. §§ 702 et seq.30 A Court

8 “shall . . . hold unlawful and set aside agency action” where the action is: (i) contrary

9 to a constitutional right; or (ii) “otherwise not in accordance with law.” 5 U.S.C §§ 706

10 (2)(A), (2)(B).31

11

First, as discussed supra, ORR’s custodial vetting and restrictive placement

12 policies and procedures deny children basic due process rights. As such, ORR’s denials

13 of Class Members’ sponsor applications and step-up decisions violate the Constitution

14 and should be set aside. See 5 U.S.C § 706(2)(B); Asse Intern., Inc., 803 F.3d at 1073

15 n.12 (setting aside agency action as contrary to constitutional right); see also Atterbury

16 v. U.S. Marshals Serv., 941 F.3d 56, 64 (2d Cir. 2019) (summary judgment on employee

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29 The TVPRA and HSA directed Defendants to recruit counsel to represent detained children pro bono publico, and for years Congress also has consistently appropriated funds to ensure that Plaintiff Class Members receive legal representation. See, e.g., Further Consolidated Appropriations Act, 2020, 116 Pub. L. No. 94, Title II, 133 Stat. 2534 (2019) (appropriating $160 million to “be used for legal services, child advocates, and post-release services”).
30 ORR decisions with respect to release and placement are “final agency decisions.” (See SUF ¶¶ 57, 167; Ex. 1 [ORR Policy Guide] §2.7 (“Only ORR (or ACF) has the authority to make the final decision on a release.”); id. § 1.3.2 (“The ORR/FFS supervisor makes a final placement decision on the level of care.”); ECF No. 141 at 11– 13 (concluding “that the policies and/or practices identified in the FAC constitute final agency actions”).)
31 Under 5 U.S.C § 706(2)(A), the Court’s review is limited to the administrative record with limited exceptions. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014).

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1 termination reversed and remanded to agency to conduct further proceedings that

2 comport with due process).

3

Second, ORR’s release and step-up decisions are “otherwise not in accordance

4 with law” under 5 U.S.C. § 706(2)(A) because they result in unnecessary delay of

5 children’s release, denied family reunification, and improper placement in high security

6 settings, all of which violate the express provisions of the TVPRA. See 8 U.S.C.

7 § 1232(c)(2)(A); supra Section IV.D. ORR’s obstruction of children’s legal counsel’s

8 involvement in decisions relating to release, placement, and administration of

9 psychotropic medication likewise violate the express provisions of the TVPRA.

10 8 U.S.C. § 1232(c)(5); supra Section V.

11

By denying sponsors and placing children in restrictive settings without affording

12 any opportunity to be heard or to be represented by legal counsel, ORR’s policies violate

13 the Constitution, the TVPRA, and, in turn, the APA. Accordingly, this Court should

14 compel ORR to afford basic due process protections to Plaintiffs, as requested herein

15 and in the concurrently filed Proposed Order. See 5 U.S.C § 706(1); Garcia-Ramirez v.

16 ICE, 2020 WL 3604041, at *83 (holding that APA claims under 5 U.S.C. § 706(1) and

17 § 706(2) can work together such that if you can show an agency acted not in accordance

18 with the law, you have shown that agency action has been “unlawfully withheld or

19 unreasonably delayed”).

20 VII. PLAINTIFFS ARE ENTITLED TO A PERMANENT INJUNCTION

21

To obtain a permanent injunction, a plaintiff must show: (1) that it has suffered

22 an irreparable injury; (2) that remedies available at law, such as monetary damages, are

23 inadequate to compensate for the injury; (3) that the remedy in equity is warranted upon

24 consideration of the balance of hardships between the plaintiff and defendant; and

25 (4) that the permanent injunction being sought would not hurt public interest. See, e.g.,

26 Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–313 (1982); Amoco Production Co.

27 v. Gambell, 480 U.S. 531, 542 (1987).

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Plaintiffs’ deprivation of liberty clearly constitutes irreparable harm. The harm

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1 caused by unlawful detention without adequate process is particularly severe given that

2 Class Members are unaccompanied minor children detained for prolonged periods of

3 time, some in jail-like conditions separated from their families. See Garcia Ramirez v.

4 ICE, 2020 WL 3604041, at *148 (holding that “deprivations of physical liberty are the

5 sort of actual and imminent injuries that constitute irreparable harm”); see also Saravia,

6 905 F.3d at 1143; Padilla, 953 F.3d at 1147-48. Nor are money damages an option in

7 this case. Finally, given the substantiality of the interests involved (see supra Sections

8 IV.A and IV.D), and the minimal burden that would be imposed on the government to

9 revise its policies and procedures (see supra Section IV.D), a permanent injunction

10 would not hurt the public interest, but instead promote it; the balance therefore tips

11 significantly in Plaintiffs’ favor. Padilla, 953 F.3d at 1147 (“‘it is always in the public

12 interest to prevent the violation of a party’s constitutional rights’”) (quoting Melendres

13 v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).32

14 VIII. CONCLUSION

15

For the foregoing reasons, the Court should grant Plaintiffs’ Motion for Partial

16 Summary Judgment of their First, Second, and Fourth Claims for Relief.

17

18 Dated: October 2, 2020

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19

20

/s/ Summer J. Wynn Summer J. Wynn (240005)

21

Attorneys for Plaintiffs Email: swynn@cooley.com

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25

26
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32 Plaintiffs respectfully refer the Court to the Proposed Order filed concurrently herewith. Plaintiffs further respectfully request that the Court order additional briefing on remedy should it so require.

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