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The Court Order that mandates the 20-day release in family asylum cases [Full Text]

The string of legal actions and responses is long where Flores is concerned. Tracking down the 20-day reference being used in news stories and press releases wasn’t easy, but it exists.

After the government lost its case in Flores v. Lynch, a series of legal actions were taken by both the plaintiff and defendant in the case. In August of 2015, a court order was issued to implement remedies that had been ordered in July of that year. That order contains the now infamous 20-day limit for asylum processing. The limit is an average.

First, the exact text that appears to have created the 20-day limit [emphasis added]:

2. Consistent with Paragraphs 9, 14, and 41 of the Agreement, at the earliest
moment that the family becomes eligible for discretionary release from
detention under 8 U.S.C. § 1226(a), or is detained under 8 U.S.C. § 1231
and receives a positive finding of reasonable fear, Defendants shall
release the family without unnecessary delay in accordance with the
following considerations:

a. Families who are determined to have a credible fear or reasonable fear
by DHS will be released under this provision as expeditiously as
possible (in light of necessary screenings and assessments that reflect
legitimate government interests) and in any case within an average of
20 days from the day that such families arrive in ICE custody.

b. The following time will not count against the time within which
release must occur:

(i) Any time in ICE custody before the families have expressed a
fear of persecution or torture if returned to their country of
origin.
(ii) The time between a negative credible fear or reasonable fear
determination by DHS and a finding of credible fear or
reasonable fear by the EOIR.
(iii)Time requested by the family or counsel to adjourn or delay the
credible fear or reasonable fear interview or service of the
determination by DHS.
(iv) Any time where exceptional circumstances, such as natural
disasters or medical emergencies, preclude conducting credible
or reasonable fear interviews.

And second, here is the full text of the August, 7, 2015 order:


UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
JENNY LISETTE FLORES; et al.,
Plaintiffs,
v.
LORETTA E. LYNCH, Attorney
General of the United States; et al.,
Defendants.

Case No. CV 85-4544-DMG
ORDER IMPLEMENTING
REMEDIES PURSUANT TO THE
COURT’S JULY 24, 2015 ORDER
[PROPOSED]

WHEREAS, on July 24, 2015, the Court issued an Order finding that the
U.S. Department of Homeland Security (“DHS”) breached the Flores Settlement
Agreement (“Agreement”) with regard to certain provisions; and
WHEREAS, the Court issued an order to show cause why certain remedies
should not be implemented within 90-days; and,
WHEREAS, having considered the submissions and arguments of the
parties, the Court hereby finds:1

1. Consistent with paragraphs 92 and 413 of the Agreement, the detention of
accompanied children in DHS custody is subject to the Agreement and
the applicable provisions of the Immigration and Nationality Act
(“INA”). The Agreement does not preclude DHS from placing families
into expedited removal pursuant to 8 U.S.C. § 1225(b) or into the
reinstatement process pursuant to 8 U.S.C. § 1231(a)(5) nor does it
preclude DHS from detaining families together in ICE Family
Residential Centers pursuant to these statutes until such family units

1 Defendants submit this proposed order as an alternative remedy only in response to the Court’s
finding that they are in breach of the Flores Settlement Agreement. Defendants continue to
assert and preserve all arguments that the Agreement does not govern the detention of adults,
families, or accompanied children apprehended or encountered by Defendants; that adults,
families, and accompanied children are not “class members” under the Agreement; and that
Defendants have not breached the Agreement.

2 Paragraph 9 of the Agreement states the parties’ clear intent to supersede previous INS policies
governing the detention, release, and treatment of minors in the custody of INS but does not state
an intent to supersede or otherwise nullify the operation or application of either the existing
mandatory detention, expedited removal, or reinstatement statute in cases involving minors.

3 Paragraph 41 of the Agreement states that, in signing the Agreement, the parties knew “of
nothing in this Agreement that exceeds the legal authority of the parties or is in violation of any
law.” establish either a credible or reasonable fear of persecution or torture or
are removed.

2. Consistent with Paragraphs 9, 14, and 41 of the Agreement, at the earliest
moment that the family becomes eligible for discretionary release from
detention under 8 U.S.C. § 1226(a), or is detained under 8 U.S.C. § 1231
and receives a positive finding of reasonable fear, Defendants shall
release the family without unnecessary delay in accordance with the
following considerations:

a. Families who are determined to have a credible fear or reasonable fear
by DHS will be released under this provision as expeditiously as
possible (in light of necessary screenings and assessments that reflect
legitimate government interests) and in any case within an average of
20 days from the day that such families arrive in ICE custody.

b. The following time will not count against the time within which
release must occur:

(i) Any time in ICE custody before the families have expressed a
fear of persecution or torture if returned to their country of
origin.
(ii) The time between a negative credible fear or reasonable fear
determination by DHS and a finding of credible fear or
reasonable fear by the EOIR.
(iii)Time requested by the family or counsel to adjourn or delay the
credible fear or reasonable fear interview or service of the
determination by DHS.
(iv) Any time where exceptional circumstances, such as natural
disasters or medical emergencies, preclude conducting credible
or reasonable fear interviews.

c. In determining whether to release, Defendants shall determine
whether any family member poses an unreasonable risk of flight, a
danger to themselves or to others, or a threat to national security

d. In assessing whether release of accompanied children and their
accompanying parents would pose an unreasonable risk of flight,
Defendants shall, if applicable, consider as a highly favorable
discretionary factor the provision of a verifiable fixed address where
an accompanied child and his or her accompanying parent would
reside upon release. See ECF No. 177, p. 9 at n.5.

e. Defendants shall consider whether a monetary bond, electronic (GPS)
monitoring, or other conditions of release would adequately mitigate
risk of flight. Bonds should be set at a reasonable level, taking into
account the accompanying parents’ or applicable sponsors’ ability to
pay.

3. Consistent with Paragraph 14 of the Agreement, if Defendants determine
that there are no conditions under which release is appropriate, or if a
family does not meet the conditions of release set by Defendants or by
EOIR, the family may remain in an ICE Family Residential Center.
Consistent with their May 13, 2015 announcement [Doc. # 153-1],
Defendants will proactively review the cases of accompanied children
and accompanying parents who are not released within the timeframes
prescribed above once detention reaches 90 days in duration, and every
60 days thereafter, to ensure that their detention or any previously set
bond amount or other conditions of release continues to be appropriate
while families await conclusion of their immigration proceedings.
4. Consistent with Paragraphs 9, 14, and 41 of the Agreement, in the event
an accompanied child or his or her accompanying parent is determined
not to have a credible fear or reasonable fear or otherwise becomes
subject to a final order of removal, they may be detained in an ICE
Family Residential Center pending removal, subject to limitations on
detention that may exist, such as those under Zadvydas v. Davis, 533 U.S.
678, 687 (2001). They may also be considered for release in Defendants’
discretion in cases where ICE has discretionary release authority.
5. Recognizing the principle of family unity, in cases where only an
accompanied child (but not the accompanying parent) is determined to
have a credible or reasonable fear or is otherwise placed in removal
proceedings under 8 U.S.C. § 1229a, the accompanied child may, in
Defendants’ discretion, remain with the accompanying parent if the
parent so requests until the accompanying parent’s release or removal. If
Defendants determine that the accompanying parent will not be released,
Defendants will consider the preferences of the accompanying parent
and, in the case of a child aged 14 years or older, the preference of such
child.

6. When an accompanied child is released from custody without his or her
accompanying parent, Defendants will consult with the Department of
Health and Human Services’ Office of Refugee Resettlement (ORR) and
assess whether the child should be transferred to ORR custody in
accordance with the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457, § 235,
112 Stat. 5044, 5074-5082 (codified in principal part at 8 U.S.C. §
1232).

7. All ICE Family Residential Centers shall meet or exceed the standards
set forth in Exhibit 1 to the Agreement. The parties shall meet and confer
regarding oversight and reporting to ensure compliance with this
provision and shall file a proposal for such oversight and reporting within
60 days of the date of this Order.

8. Consistent with Paragraph 12 of the Agreement, accompanied children
and their accompanying parents or legal guardians (also referred to herein
as “families”) who come into the custody of U.S. Customs and Border
Protection (CBP) will be transferred to U.S. Immigration and Customs
Enforcement (ICE) as expeditiously as possible.

9. The Court’s Order with regard to CBP facilities is hereby vacated, and
the parties are ordered to meet and confer within 21 days, and to file with
the Court within an additional 28 days, a proposed scheduling order
including dates for discovery, dispositive motions and, if necessary, an
evidentiary hearing.

10. In consultation with Plaintiffs, Defendants shall propose within 30
days of the date of this order, the parameters of periodic statistical
reporting to demonstrate compliance with this order.

11. Unless otherwise specifically stated herein, this Order and its
obligations shall be implemented by the Parties on or before
October 22, 2015.

IT IS SO ORDERED.

Dolly M. Gee
United States District Judge

R. Mitchell

Rich Mitchell is the editor-in-chief of Conservative Daily News and the president of Bald Eagle Media, LLC. His posts may contain opinions that are his own and are not necessarily shared by Anomalous Media, CDN, staff or .. much of anyone else. Find him on twitter, facebook and

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