Saravia v. Sessions et al

Filing 196

ORDER re [181-2] Defendants' Motion for Clarification. Signed by Judge Vince Chhabria on January 25, 2019. (vclc3S, COURT STAFF) (Filed on 1/25/2019)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

ILSA SARAVIA,

Case No. 17-cv-03615-VC

Plaintiff,
v.
JEFFERSON B. SESSIONS, et al.,
Defendants.

ORDER GRANTING IN PART AND
DENYING IN PART THE MOTION
TO CLARIFY THE COURT'S
DECEMBER 3, 2018, ORDER
Re: Dkt. No. 181

The defendants have filed a motion for clarification, in which they seek guidance on the
application of the preliminary injunction to two unaccompanied minors, Y.M.M.C. and K.D.C.S.
The defendants also request clarification on the general application of the Court’s December 3,
2018, order. The motion is granted in part and denied in part.
1. Whether an unaccompanied minor can be released from ORR custody involves two
questions: (1) whether the minor is a danger to the community or a flight risk; and (2) whether
there is a suitable sponsor to whom the minor can be released. The preliminary injunction
involves the procedures that must be made available to challenge the government’s decision to
take a released minor back into custody when the government has changed its mind on the first
question, operating on the assumption that the answer to the second question has remained the
same. The government has now presented two minors who were detained after encounters with
local law enforcement, but who, the government alleges, cannot be safely returned to their
original sponsors. According to the government, both minors might be members of the Saravia
class, but the government is concerned that if it provides them with hearings, and if the hearings
result in a conclusion by an immigration judge that the minors are still not a danger to the

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community or a flight risk, and if ORR then fails to release the minors on the ground that the
sponsors are no longer suitable, the government will be deemed out of compliance with the
preliminary injunction.
The government need not be concerned about this. The preliminary injunction ruling
requires the release of minors who were rearrested after previously being placed with a sponsor
when an immigration judge concludes that changed circumstances do not exist with respect to
their being a danger or a flight risk, but only if there is a suitable sponsor. In other words, the
preliminary injunction ruling did not override HHS’s obligation under the TVPRA to ensure that
minors are placed with custodians “capable of providing for the child’s physical and mental wellbeing.” 8 U.S.C. § 1232(c)(3)(A). To resolve the presumably very small percentage of cases
where the government believes it cannot comply with the TVPRA by releasing minors to their
previously-designated sponsors, ORR should follow its existing policies for unaccompanied
minors.1 See U.S. Department of Health and Human Services, ORR Guide: Children Entering the
United States Unaccompanied, available at https://perma.cc/4QCP-CQGD (last visited Jan. 25,
2018). This includes, of course, making sure that the minors are not held in a more restrictive
facility than necessary.
2. With respect to the defendants’ general request for a further ruling regarding the class
definition, the motion is denied. The defendants’ brief largely repeats the arguments made with
respect to the prior motion for clarification. See Dkt. No. 173. Until the parties have had a chance
to complete discovery and provide the Court with additional information surrounding the
defendants’ policies, it is not appropriate to revisit the class definition, or to pre-adjudicate all the
possible situations in which it might be difficult to determine whether a minor is a member of the
provisional class. However, as discussed at the hearing, the government should, when in doubt,

The Court is cognizant of its prior order rejecting the government’s arguable attempt to use
sponsor suitability to flout the preliminary injunction as to A.H., the named plaintiff. See Dkt.
No. 117. But there is no indication that the government has engaged in similar conduct since
then, and certainly no indication that it’s doing so with respect to the two minors currently at
issue.
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err on the side of providing a hearing. And agents in the field must, when in doubt, consult with
counsel.
IT IS SO ORDERED.
Dated: January 25, 2019
______________________________________
VINCE CHHABRIA
United States District Judge

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