Case 3:18-cv-00428-DMS-MDD Document 105 Filed 07/13/18 PageID.2073 Page 1 of 6 1 CHAD A. READLER Acting Assistant Attorney General 2 SCOTT G. STEWART 3 Deputy Assistant Attorney General WILLIAM C. PEACHEY 4 Director 5 Office of Immigration Litigation U.S. Department of Justice 6 WILLIAM C. SILVIS 7 Assistant Director Office of Immigration Litigation 8 SARAH B. FABIAN 9 Senior Litigation Counsel NICOLE N. MURLEY 10 Trial Attorney 11 Office of Immigration Litigation U.S. Department of Justice 12 Box 868, Ben Franklin Station 13 Washington, DC 20442 Telephone: (202) 532-4824 14 Fax: (202) 616-8962 15 ADAM L. BRAVERMAN 16 United States Attorney 17 SAMUEL W. BETTWY Assistant U.S. Attorney 18 California Bar No. 94918 19 Office of the U.S. Attorney 20 880 Front Street, Room 6293 San Diego, CA 92101-8893 21 619-546-7125 22 619-546-7751 (fax) 23 Attorneys for Federal Respondents24 Defendants 25 26 27 28 Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice Case 3:18-cv-00428-DMS-MDD Document 105 Filed 07/13/18 PageID.2074 Page 2 of 6 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 2 3 4 Petitioners-Plaintiffs, 5 6 Case No. 18cv428 DMS MDD MS. L, et al., JOINT MOTION REGARDING SCOPE OF THE COURT’S PRELIMINARY INJUNCTION vs. 7 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 8 Respondents-Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In accordance with the Court’s orders and with the Court’s July 10, 2018 status conference, the parties respectfully jointly move the Court to enter the attached Order Regarding Scope of the Court’s Preliminary Injunction. This Proposed Order addresses compliance with this Court’s preliminary injunction. It would provide that the Court’s preliminary injunction order in this case, or subsequent orders implementing that order, does not limit the Government’s authority to detain adults in the Department of Homeland Security’s (“DHS”) custody. Accordingly, when DHS would detain a Class Member together with his or her child in a facility for detaining families, consistent with its constitutional and legal authorities governing detention of adults and families, but the child may be able to assert rights under the Flores Settlement Agreement to be released from custody or transferred to a “licensed program” pursuant to that Agreement’s terms, then this Court’s preliminary injunction and implementing orders permit the Government to require Class Members to select one of the following two options: First, the Class Member may choose to remain in DHS custody together with his or her child, subject to any eligibility for release under existing laws and policies, but 28 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 105 Filed 07/13/18 PageID.2075 Page 3 of 6 1 to waive, on behalf of the child, the assertion of rights under the Flores Settlement 2 Agreement to be released, including the rights with regard to placement in the least 3 restrictive setting appropriate to the minor’s age and special needs, and the right to 4 release or placement in a “licensed program.” By choosing this option, the class 5 member is waiving the child’s right under the Flores Settlement Agreement to be 6 released, including the rights with regard to placement in the least restrictive setting 7 appropriate to the minor’s age and special needs, and the right to release or 8 placement in a “licensed program.” Second, and alternatively, the Class Member 9 may waive his or her right not to be separated from his or her child under this Court’s 10 preliminary injunction and assert, on behalf of the Class Member’s child, any such 11 right under the Flores Settlement Agreement for the child to be released from 12 custody or transferred to a “licensed program” pursuant to that Agreement’s terms— 13 in which circumstance the child would, consistent with this Court’s orders, be 14 separated with the parent’s consent. In implementing this release or transfer, the 15 government could transfer the child to HHS custody for placement and to be 16 otherwise treated as an unaccompanied child. See 6 U.S.C. 279(g)(2). 17 The Proposed Order provides that in neither circumstance do this Court’s 18 orders create a right to release for a parent who is detained in accordance with 19 existing law. If a Class Member is provided these two choices and does not select 20 either one, the Government may maintain the family together in family detention 21 and the Class Member will be deemed to have temporarily waived the child’s release 22 rights (including the rights with regard to placement in the least restrictive setting 23 appropriate to the minor’s age and special needs, and the right to release or 24 placement in a “licensed program”) under the Flores Settlement Agreement until the 25 Class Member makes an affirmative, knowing, and voluntary decision as to whether 26 he or she is waiving his or her child’s rights under the Flores Settlement Agreement. 27 28 2 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 105 Filed 07/13/18 PageID.2076 Page 4 of 6 1 The parties further agree that the Court’s orders in this case, and the Flores 2 Settlement Agreement, do not in any way prevent the Government from releasing 3 families from DHS custody. No waiver by any Class Member of his or her rights 4 under this Court’s orders, or waiver by the Class Member of his or her child’s rights 5 under the Flores Settlement Agreement, shall be construed to waive any other rights 6 of the Class Member or Class Member’s child to challenge the legality of his or her 7 detention under any constitutional or legal provisions that may apply. 8 The parties agree a Class Member’s waiver under the Flores Settlement 9 Agreement or this Court’s injunction can be reconsidered after it is made, but 10 disagree about whether there are circumstances when such a waiver cannot be 11 reconsidered. The parties propose to meet and confer regarding this issue, and 12 provide a joint statement to the Court addressing the results of the meet and confer 13 and, if necessary, providing statements of their respective positions – by 3:00 p.m. 14 on July 20, 2018. 15 DATED: July 13, 2018 16 17 18 19 20 21 22 23 24 25 26 27 Respectfully submitted, /s/ Lee Gelernt Lee Gelernt* Judy Rabinovitz* Anand Balakrishnan* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 T: (212) 549-2660 F: (212) 549-2654 lgelernt@aclu.org jrabinovitz@aclu.org abalakrishnan@aclu.org Bardis Vakili (SBN 247783) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES 28 3 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 105 Filed 07/13/18 PageID.2077 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 398-4485 F: (619) 232-0036 bvakili@aclusandiego.org Stephen B. Kang (SBN 292280) Spencer E. Amdur (SBN 320069) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 skang@aclu.org samdur@aclu.org Attorneys for Petitioners-Plaintiffs *Admitted Pro Hac Vice 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CHAD A. READLER Acting Assistant Attorney General SCOTT G. STEWART Deputy Assistant Attorney General WILLIAM C. PEACHEY Director WILLIAM C. SILVIS Assistant Director /s/ Nicole N. Murley NICOLE N. MURLEY Trial Attorney SARAH B. FABIAN Senior Litigation Counsel Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 28 4 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 105 Filed 07/13/18 PageID.2078 Page 6 of 6 1 2 (202) 532-4824 (202) 616-8962 (facsimile) sarah.b.fabian@usdoj.gov 3 4 5 6 7 ADAM L. BRAVERMAN United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney Attorneys for Respondents-Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 105-1 Filed 07/13/18 PageID.2079 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MS. L, et al., Petitioners-Plaintiffs, 12 13 Case No. 18cv428 DMS MDD vs. 14 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 15 Respondents-Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING JOINT MOTION REGARDING SCOPE OF THE COURT’S PRELIMINARY INJUNCTION Before the Court is the parties’ Joint Motion Regarding Scope of the Court’s Preliminary Injunction. IT IS HEREBY ORDERED that the Court’s preliminary injunction order in this case, or subsequent orders implementing that order, does not limit the Government’s authority to detain adults in the Department of Homeland Security’s (“DHS”) custody. Accordingly, when DHS would detain a Class Member together with his or her child in a facility for detaining families, consistent with its constitutional and legal authorities governing detention of adults and families, but the child may be able to assert rights under the Flores Settlement Agreement to be released from custody or transferred to a “licensed program” pursuant to that Agreement’s terms, then this Court’s preliminary injunction and implementing orders permit the Government to require Class Members to select one of the following two options: First, the Class Member may choose to remain in Case 3:18-cv-00428-DMS-MDD Document 105-1 Filed 07/13/18 PageID.2080 Page 2 of 3 1 DHS custody together with his or her child, subject to any eligibility for release under 2 existing laws and policies, but to waive, on behalf of the child, the assertion of rights under 3 the Flores Settlement Agreement to be released, including the rights with regard to 4 placement in the least restrictive setting appropriate to the minor’s age and special needs, 5 and the right to release or placement in a “licensed program.” By choosing this option, the 6 class member is waiving the child’s right under the Flores Settlement Agreement to be 7 released, including the rights with regard to placement in the least restrictive setting 8 appropriate to the minor’s age and special needs, and the right to release or placement in a 9 “licensed program.” Second, and alternatively, the Class Member may waive his or her 10 right not to be separated from his or her child under this Court’s preliminary injunction and 11 assert, on behalf of the Class Member’s child, any such right under the Flores Settlement 12 Agreement for the child to be released from custody or transferred to a “licensed program” 13 pursuant to that Agreement’s terms—in which circumstance the child would, consistent 14 with this Court’s orders, be separated with the parent’s consent. In implementing this release 15 or transfer, the government could transfer the child to HHS custody for placement and to be 16 otherwise treated as an unaccompanied child. See 6 U.S.C. 279(g)(2). 17 In neither circumstance do this Court’s orders create a right to release for a parent 18 who is detained in accordance with existing law. If a Class Member is provided these two 19 choices and does not select either one, the Government may maintain the family together in 20 family detention and the Class Member will be deemed to have temporarily waived the 21 child’s release rights (including the rights with regard to placement in the least restrictive 22 setting appropriate to the minor’s age and special needs, and the right to release or 23 placement in a “licensed program”) under the Flores Settlement Agreement until the Class 24 Member makes an affirmative, knowing, and voluntary decision as to whether he or she is 25 waiving his or her child’s rights under the Flores Settlement Agreement. 26 The parties further agree that the Court’s orders in this case, and the Flores Settlement 27 Agreement, do not in any way prevent the Government from releasing families from DHS 28 custody. No waiver by any Class Member of his or her rights under this Court’s orders, or Ex Parte Motion to File Exhibits as Restricted 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 105-1 Filed 07/13/18 PageID.2081 Page 3 of 3 1 waiver by the Class Member of his or her child’s rights under the Flores Settlement 2 Agreement, shall be construed to waive any other rights of the Class Member or Class 3 Member’s child to challenge the legality of his or her detention under any constitutional or 4 legal provisions that may apply. 5 The parties agree a Class Member’s waiver under the Flores Settlement Agreement 6 or this Court’s injunction can be reconsidered after it is made, but disagree about whether 7 there are circumstances when such a waiver cannot be reconsidered. They are directed to 8 meet and confer regarding this issue, and provide a joint statement to the Court addressing 9 the results of the meet and confer and, if necessary, providing statements of their respective 10 positions – by 3:00 p.m. on July 20, 2018. 11 Dated: 12 13 Hon. Dana M. Sabraw 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ex Parte Motion to File Exhibits as Restricted 2 18cv428 DMS MDD