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 17

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 MS. L, et al.,
Petitioners-Plaintiffs,

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Case No. 18cv428 DMS MDD

vs.

14 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
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Respondents-Defendants.
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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

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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).
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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.
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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

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18cv428 DMS MDD

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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.
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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.
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Dated:

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Hon. Dana M. Sabraw

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United States District Judge

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Ex Parte Motion to File Exhibits as Restricted

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18cv428 DMS MDD