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Government Shutdown, unaccompanied minors & ORR and Judge McGee Trifecta

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Posted on December 28 2018


In the past I’ve discussed the document abuse both physically and emotionally inflicted on Unaccompanied minors, see ACLU research and FOIA entry here.

June 2018 entry includes GAO numbers of Unaccompanied Minors. Numerous HHS-ORR contracts, proposed 2019 budgets.

June 2018 entry further discussions of Contracts, Contract Mods, Southwest Key programs, various facilities that house the thousands of unaccompanied minors.

June 2018 entry, which included the UN-HCR, response from the Global Community and what the UN describes as “Crimes Against Humanity”

July 2018 entry, which discussed Court Order(s), Class Action Complaints, Sec Neilsen’s incompetence and lack of candor in her Congressional testimony.

October 2018 entry which goes into the GAO report of the mental health implications unique to children. In late May of 2018 Dr. Fortuna’s declaration explained the mental health impact on a child’s developing brain. Sadly the data shows the impact is often irreparable. Yet Trump & Neilsen continue to ignore the pleas and warnings from the peducatric medical community and 200+ advocacy groups. You can read the January 2018 letter here.


 “who have faced psychological trauma are at heightened risk of suffering from irreversible, psychological harm and especially if a child also experiences a traumatic separation from their parent.’


November 2018 entry, Trump’s Executive Orders, Asylum and TPS. The mental health component was largely ignored. The Tornillo Influx Care Facility:

Concerns About Staff Background Checks and Number of Clinicians on Staff:

This memorandum documents that OIG has alerted your office to serious safety and health vulnerabilities at Tornillo: the lack of FBI fingerprint background checks and the dangerously low number of clinicians serving children. Both issues warrant immediate attention because they pose substantial risks to children receiving care at this facility.

The distinction is Trump’s supporters blindly follow him. They actually believe his lies and rarely seek out facts that refute Trump’s plethora of lies.The fact of the matter is the Trump Administration has repeatedly lost in Court, received warning from medical professionals. But Trump being Trump he ignored nearly all the expert advise and listened to Stephen Miller and his ilk who for a lack of better terms, enable the very worst tendencies of Trump. Remarkably a leader who governs and leverages fear, unknowing and doubt is not a very good leader. 


In March of 2018 the American Academy of Pediatrics (AAP) wrote a second sharp letter to DHS Secretary Neilsen, “imploring” her to “reject” any policy that would forcibly separate children “from their parents”, that are apprehended at our Southern Border.



Academy urged you in the strongest possible terms to reject a policy that would separate children from their parents at the border. To our knowledge, no decision has been made with respect to this policy. However, we are aware of reports that parents and children are being forcibly separated at our borders. We write to implore you to intervene with immigration enforcement and put an end to the separation of parents and children.


The AAP closed their March 2018 letter with this blistering paragraph:


We ask you to put children first and not exacerbate their suffering by the additional trauma of being separated from their parents. As children develop, their brains change in response to environments and experiences. Fear and stress, particularly prolonged exposure to serious stress without the buffering protection afforded by stable, responsive relationships– known as toxic stress – can harm the developing brain and harm short- and long-term health


In May of 2018, Dr. Colleen Kraft president of the American Academy of Pediatrics, traveled to Texas to visit one of the many government funded “facilities” housing these unaccompanied minors. After the visit Dr. Kraft issued the following statements:

“Separating children from their parents contradicts everything we stand for as pediatricians — protecting and promoting children’s health,” she said.

“We can and must do better for these families,” Dr. Kraft said. “We can and must remember that immigrant children are still children; they need our protection, not prosecution.”


Should you be inclined you can read her May 2018 LA Times OpEd here. Conversely the notion that Trump only until very recently showed his overt racial animus towards people of color, one needs to look no further than his twitter account. The earliest tweet I found where Trump invoked  “illegal immigration” circa 2011:



This Trump twitter archive link will take you to the 93 unique tweets using “illegal immigration”...

what I found odd is Trump has only used the phrase “unaccompanied minor” once and that appears to be a mere cut and paste. Naturally I just assumed Trump doesn’t know how to spell  “unaccompanied minor” or what it means or how to use it in a sentence, hence he’s only tweeted that term once, see archive link here.



With respect to Trump tweeting about his “big beautiful strong bigly wall”, his twitter archive reflects 319 unique tweets about his wall. In the aggregate I found something interesting. From January 2017 to present Trump had only tweeted about his (stupid fucking) wall 102 times. Which means the vast majority of the 319 unique tweets, roughly 2/3 of the aggregate tweets (percisely 217 tweets) were during his campaign.



And like many I essentially tuned Trump and his supporters out, but upon closer review I found yet another interesting pattern. During the 2016 presidential election Trump delighted in hearing his “adoring fans” chanting “Mexico will pay for the wall”...Trump has only tweeted that phrase 3 times since January 2017 to present. See twitter archive link



Which tells me, Trump knows the diplomatic fubar of his siren call to his supporters “Mexico will pay for the wall” was and is nothing more than vulgar propaganda. Moreover in some respect Trump is an attention junkie. When he’s morose or intemperate Trump’s staff sends him out on the Campaign style rally. One can only assume this is to facilitate his “attention fix”.  This is particularly noticeable when he goes on a twitter rampage. Remember that Trump isn’t a decent negotiator. He is a strictly transactional negotiator. If I were in a position to tell my political party what to’s what I would tell them:

Trump is currently on defense. Let him continue to equivocate and flounder in the Court of Public Opinion. The recent public polling suggest that Trump & his incompetent staff know the longer his shutdown persist the worse it is for Trump. Let him face the wrath of hundreds of thousands of furloughed Federal Employees. Because the fact Trump blatantly lied about the majority of Federal Employees not getting paid are Democrats, it stinks of pure weakness and desperation.

The Democrats should (as some are currently doing) make this about the children, the unaccompanied children. Especially those that have died in our Country’s custody. The same children who will unlikely be reunited with their parents because Sec Neilsen and Trump failed to have a database that “shared” information and his administration deported hundreds of parents. 

The Democrats should focus on the mental health component, back in June I linked to numerous lawsuits and the need for a certification of a “class” and granted at the time I expressed a certain and sometime vehement objection of our Government administering ppsychotropic drugs to unaccompanied minors. See the lengthy twitter thread below.



Late yesterday (remember I’m in the East Coast timezone), Judge McGee issued a slew of orders. This two page order  which denied the Government’s request for a stay. The Judge stated in what I can only describe as a terse and sharply worded order:

“The prosecution of this action should not be further delayed because it concerns the health and welfare of minors in the custody of the Office of Refugee Resettlement,”


Moreover in Case 2:18-cv-05741-DMG, the Judge certified multiple classes and appointed class representatives 


Defendants have largely refrained from disputing Plaintiffsassertions 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. 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.

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”);

c who are or will be prescribed or administered one or more psychotropic medications without procedural safeguards;

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”)



In a third Order Judge McGee essentially thrashed the Government, specifically ORR. To put it mildly the Judge found the government’s argument “without merit”. Judge McGee went on to modified the class definition. Swapping out the Rehabilitation Act standard and alternatively using the Americans With Disabilities Act standard. Which has a far broader scope.

Order erred in certifying the legal representation and disability classes and in concluding that the Office of Refugee Resettlement (“ORR”) engaged in “transparent attempts to thwart” class certification. 
With one minor exception, Defendants’ arguments are without merit.


Under the previous Rehabilitation Act standard, it required plaintiffs to show they were “denied services ‘solely by reason of’ [his or] her disability,” by using the ADA standard Judge McGee then amended the November order by updating it to now read and include”...and the Judge went on to hold the Government accountable as they “released” various class members just prior to the November hearing. 


 “Defendants do correctly point out, however, that the November 2, 2018 Order defined the
disability class using the Americans with Disabilities Act (“ADA”) legal standard instead of the
narrower Rehabilitation Act test...who have or will have a behavioral, mental health, intellectual, and/or developmental disability” and who will receive treatment while in federal custody because of their disabilities.”

Defendants do not identify any other free legal service providers available to the legal representation class members, nor have Plaintiffs contended that Defendants impeded their access to these providers. Thus, the record shows that the legal representation class’s definition is not overbroad....undisputed facts show that they were subjected to the same aforementioned policy or practice as the absent class members, even though the precise circumstances under which they suffered their respective injuries may differ..


What is interesting according to ACF-HHS homepage (updated on June 20, 2018) ensuring unaccompanied minors have legal representation, it’s odd that in the aforementioned Court Order the Government only offered one “legal service grant, yet as you can see ACF-HHS states clearly they’ve 

 ORR announced a program expansion to support the need for legal services for unaccompanied alien children after their release from the custody of ORR, by awarding additional funds to two existing grantees to hire attorneys to provide legal representation to approximately 2,600 unaccompanied alien children.


The reality is this, the rampant negligant treatment by our Government, specifically the DHS & HHS ORR of the undocumented minors in their custody, of whom three have died in our Custody should be a shameful stain on our Country. Their deaths could have been prevented but the intolerable cruelty of the Trump Administration and his cult like sycophants. Their depravity is antithetical to REAL American values. The silence from the Evangelical Trump supporters is beyond deafening. 



Personally speaking if you want to really rattle Trump’s cage, I would bring his daughter amd son before Congress and compel Kremlin Barbie and her brother to testify about her roll in Trump’s 2017 bombing of the Syrian airfield after they warned Russia, tomahawks would be incoming. Thus giving Assad & Putin enough time to move their fighter jets. It is remarkable to me that all Kremlin Barbie needed to do was tell her daddy she was “heart broken” yet in the same vain her daddy’s own immigration crisis of his own making, she remains silent. What is complicit? Her name is Ivanka Marie Trump.


If it wouldn’t get me in actual trouble, I would in fact play this audio recording outside Ivanka & Jared “bone saw” MbS enabler Georgetown home 24/7/365. Because I’m not fooled by Kremlin Barbie’s fake whispering voice, she’s just as meniacle and cruel as her sociopath of a father. To the Trump’s non-white people are “others” to be referred to as “animals, rapist, breeding and infestation” do you know who else used this kind of dehumanizing language? Adolf Hitler, who literally coined the vulgar term: Untermenschen - loosely translated as “subhuman”. Hitler also frequently referred to people of Jewish faith as: “parasitic vermin”...I don’t think it’s a stretch to say Trump’s dehumanizing language as it relates to parents and children fleeing extreme poverty, gang violence is on par with how Hitler dehumanized the Jewish people.


Martin Niemöller's

First they came for the socialists, and I did not speak out—  Because I was not a socialist.

The they came for the trade unionists, and I did not speak out—Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—  Because I was not a Jewish

Then they came for me—and there was no one left to speak for me.


As some of you may recall I’ve attempted to track the various issues with HHS-ORR”s vendors. Specifically BCFS, SouthWest Key etc...


What you may not know is in mid December 2018, HHS-OIG issued a pretty brutal report of BCFS. To be fair this HHS-OIG report evaluated data strictly during the Obama Administration so it would be intellectually dishonest to apportion any blame on Trump. Beyond noting the Trump administration has most likely exasperated the lack of “quality care” for unaccompanied minors. The HHS-OIG made the following recommendations:

BCFS HHS comply with ORR regulations pertaining to;
(1) video monitoring in common areas,(2) sponsor and other household members background checks,(3) admission/intake assessments and medical exams, and (4) discharge notifications to DHS and other stakeholders.

In addition, we recommend that BCFS HHS comply with State regulations pertaining to;

(1) minimum bedroom space, (2) health and safety standards for shelters and foster care homes, and (3) employee background investigations.

We also recommend that BCFS HHS ensure that information reported to ORR is accurate.

The report also contains other procedural recommendations for BCFS HHS to operate its UAC program in accordance with Federal and State regulations.


And lastly you do get this whole Government Shutdown is on Trump, right? Oh you’d like to hear my argument why this THIRD SHUTDOWN in <11 months is on Trump? Fine here’s my closing argument

But if the Government doesn’t open on January 4, 2019 I might in fact check into a hotel. I don’t like sharing my home office and I certainly do not like being asked in the middle of my work day...”honey I’m hungry can you make lunch” or “what’s for dinner”...-Spicy Out

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