Case 3:18-cv-00428-DMS-MDD Document 192 Filed 08/16/18 PageID.3244 Page 1 of 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 MS. L, et al., Petitioners-Plaintiffs, 12 13 Case No. 18cv428 DMS MDD vs. U.S. IMMIGRATION AND CUSTOMS 14 ENFORCEMENT, et al., 15 ORDER GRANTING JOINT MOTION REGARDING SCOPE OF THE COURT’S PRELIMINARY INJUNCTION Respondents-Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 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 192 Filed 08/16/18 PageID.3245 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 30 1 18cv428 DMS MDD Case 3:18-cv-00428-DMS-MDD Document 192 Filed 08/16/18 PageID.3246 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 August 23 2018. 11 Dated: August 16, 2018 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ex Parte Motion to File Exhibits as Restricted 30 2 18cv428 DMS MDD