State of Washington et al v. United States of America et al

Filing 29

SUPPLEMENT Defendants Appendix A, Dkt. #21 -1 by Defendants Alex Azar, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, Donald Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: #1 Exhibit 15, #2 Exhibit 16, #3 Exhibit 17, #4 Exhibit 18, #5 Exhibit 19, #6 Exhibit 20, #7 Exhibit 21, #8 Exhibit 22)(Murley, Nicole)

Exhibit 16

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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
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WILLIAM C. SILVIS
7 Assistant Director
Office of Immigration Litigation
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SARAH B. FABIAN
9 Senior Litigation Counsel
NICOLE N. MURLEY
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Trial Attorney
11 Office of Immigration Litigation
U.S. Department of Justice
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Box 868, Ben Franklin Station
13 Washington, DC 20442
Telephone: [phone]
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Fax: [phone]
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ADAM L. BRAVERMAN
16
United States Attorney
17 SAMUEL W. BETTWY
Assistant U.S. Attorney
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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)

Lee Gelernt*
Judy Rabinovitz*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad St., 18th Floor
New York, NY 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

23 Attorneys for Federal Respondents24 Defendants

Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice

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Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN
DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]
[e-mail]

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Petitioners-Plaintiffs,

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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.,
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Respondents-Defendants.
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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

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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.
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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
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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: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]
Bardis Vakili (SBN 247783)
ACLU FOUNDATION OF SAN DIEGO
& IMPERIAL COUNTIES

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P.O. Box 87131
San Diego, CA 92138-7131
T: [phone]
F: [phone]
[e-mail]
Stephen B. Kang (SBN 292280)
Spencer E. Amdur (SBN 320069)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
T: [phone]
F: [phone]
[e-mail]
[e-mail]
Attorneys for Petitioners-Plaintiffs
*Admitted Pro Hac Vice

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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

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[phone]
[phone] (facsimile)
[e-mail]

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ADAM L. BRAVERMAN
United States Attorney
SAMUEL W. BETTWY
Assistant U.S. Attorney
Attorneys for Respondents-Defendants

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