Saravia v. Sessions et al
ORDER REQUESTING RESPONSE TO EMERGENCY APPLICATION. Signed by Judge Vince Chhabria on December 7, 2017. (vclc3S, COURT STAFF) (Filed on 12/7/2017)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. 17-cv-03615-VC
ORDER REQUESTING RESPONSE TO
JEFFERSON B. SESSIONS, et al.,
Re: Dkt. No. 108
The government is ordered to file a response to the emergency application by Monday,
December 11, 2017 at 5 p.m. In its response, the government should make sure to address the
following, in addition to whatever other points it wishes to make:
Although the Court's preliminary injunction ruling is admittedly ambiguous in places, it
appears the government is making implementation of the ruling more complicated than it needs
to be. The ruling holds that the government, to justify arrest and continued detention of a
noncitizen minor who had previously been placed with a sponsor by ORR, must be able to
present evidence at a hearing before an immigration judge that circumstances have changed since
ORR made the placement decision. Specifically, the government must present evidence that the
minor is dangerous or a flight risk (or that his removal is imminent), and the minor and his
sponsor must have the opportunity to rebut the government's showing. If the government loses
at this hearing, the minor must be released back to the sponsor. See November 20, 2017 Order at
2, Dkt. No. 100 ("Instead of giving those minors a prompt hearing to dispute that their detention
is now justified based on changed circumstances . . . " (emphasis added)); id. ("[F]or any
noncitizen minor previously placed with a sponsor who has been arrested on allegations of gang
activity, the government is ordered to provide a hearing before an immigration judge . . . to allow
the minor and his sponsor to contest the government's evidence of changed circumstances. The
government must restore the minor to the sponsor's custody if such evidence is lacking.").
Therefore, even if agents had probable cause to believe that changed circumstances exist when
they arrested the minor, if the immigration judge concludes that changed circumstances do not
actually exist (that is, if the immigration judge concludes that the minor is not dangerous or a
flight risk), the minor must be released back into his previously-approved sponsor's care. See id.
at 2; id. at 31-32 ("[T]he minor must have the opportunity to rebut the government's showing,
and, if he does so successfully, the neutral decision maker must have the ability to order a return
to the status quo."); id. at 44 ("A decision by the immigration judge that the government has not
made an adequate showing of changed circumstances, or that the minor has successfully rebutted
the showing, requires release into the custody of the previous sponsor.").
It is therefore unclear why the government thinks there needs to be both what it calls a
"Saravia hearing" and what it calls a "Flores hearing" for a minor rearrested by the government
after previously being placed with a sponsor by ORR. To the extent the government believes
that the preliminary injunction ruling in Saravia requires merely prompt adjudication of whether
there was probable cause to arrest a minor previously placed with a sponsor, as opposed to
prompt adjudication of whether changed circumstances actually exist to justify the minor's
continued detention, that is a cramped interpretation of the ruling. To the extent the government
believes it would somehow violate the TVPRA or the Ninth Circuit's recent decision in Flores to
release a minor who falls in this category without re-conducting the suitability assessment
previously made by ORR, that seems wrong. First, as has been previously discussed, it is far
from clear that minors previously placed with sponsors by ORR who are later rearrested by the
federal government should continue to be considered "unaccompanied minors" covered by the
TVPRA.1 Second, even if these minors are covered by the TVPRA, that statute merely requires
Query whether this emergency application will force a ruling on that question.
ORR to make a determination, before releasing a minor to a sponsor, "that the proposed
custodian is capable of providing for the child's physical and mental well-being." 8 U.S.C. §
1232(c)(3)(A). As discussed in the preliminary injunction ruling, ORR has already made that
determination with respect to these minors, because ORR has already placed them with sponsors;
this language from the TVPRA does not seem to stand for the proposition that ORR must make
this determination again if the minor happens to be improperly detained by the federal
government after having been released. See November 20, 2017 Order at 32-33. The language
of the Flores ruling appears to be in accord – it says merely that "the TVPRA prevents ORR
from releasing an unaccompanied minor from custody unless the agency has identified a suitable
custodian . . . ." Flores v. Sessions, 862 F.3d 863, 878 (9th Cir. 2017). ORR has already
identified suitable custodians for this narrow class of minors, so the release of an improperlydetained minor to a previously-approved sponsor appears consistent with that ruling, not in
conflict with it.
If the above analysis is incorrect, the government's response should explain why. In
addition, the government should specify and explain whether: (i) it believes that the approach it
has taken towards A.H. (with the "combined Saravia/Flores hearing" and the possibility that
detention could continue if the minor loses on the first but wins on the second) is the approach
that should be taken towards class members going forward; or (ii) it believes this is a problem
unique to A.H. based on his specific circumstances.
Any reply in support of the emergency motion must be filed by Tuesday, December 12,
2017, at 10:00 a.m. The Court is of the tentative view that a hearing will not be required to
resolve this emergency motion, but if the parties request a hearing they should include that
request in their response and/or reply, after conferring about a mutually acceptable hearing date.
IT IS SO ORDERED.
Dated: December 7, 2017
United States District Judge
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