Ms. L. v. U.S. Immigration and Customs Enforcement et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Ms. L.; et al.,
Petitioners-Plaintiffs,
v.
U.S Immigration and Customs
Enforcement (“ICE”); et al.,
Respondents-Defendants.
Case No.: 18cv0428 DMS (AHG)
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR PARTIAL RELIEF
FROM SECTION IV.C.1 OF THE
MS. L. SETTLEMENT
AGREEMENT
This case comes before the Court on Defendants’ motion for partial relief from
Section IV.C.1 of the Ms. L. Settlement Agreement. Plaintiffs filed an opposition to the
motion, and Defendants filed a reply. The motion came on for hearing on January 29,
2026. Lee Gelernt, Daniel Galindo, and Natalie Behr appeared for Plaintiffs, and Daniel
Schutrum-Boward and Carmen Yori appeared for Defendants.
In this motion, Defendants argue the newly passed HR-1 conflicts with the following
provision in Section IV.C.1. of the Settlement Agreement:
/ / /
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If the parole request is approved, USCIS will issue a travel document
authorizing parole for a period of 36 months from the date the individual is
paroled at the port of entry (for individuals outside the United States) or a
Form I-94, Arrival/Departure Record valid for 36 months from the date parole
is approved (for requests for parole in place).
(Settlement Agreement at 15, ECF No. 721-1.) According to Defendants, this provision
conflicts with HR-1’s requirement that employment authorizations for parolees “be valid
for a period of 1 year or for the duration of the alien’s parole, whichever is shorter.” 8
U.S.C. § 1804(b)(1). To resolve this conflict, Defendants argue the Settlement Agreement
should be modified to align with the new one-year limit for parole and employment
authorization approvals. Plaintiffs do not dispute there is a conflict between the Settlement
Agreement’s 36-month approval period and HR-1’s new one-year limit. Instead, they
argue Defendants’ proposed modification is not suitably tailored to address the conflict.
Plaintiffs propose a modification that would “require[ ] Defendants to renew class members
and QAFMs employment authorization each year for the duration of their parole.” (Opp’n
at 16.)
There being no dispute that there is a conflict on this issue, the Court grants
Defendants’ request for relief from the above provision of Section IV.C.1 of the Settlement
Agreement. This leaves only the terms of the modification. As stated above, Defendants
argue the Settlement Agreement should be modified to align with HR-1’s new requirement
that employment authorization for parolees “be valid for a period of 1 year or for the
duration of the alien’s parole, whichever is shorter.” 8 U.S.C. § 1804(b)(1), while Plaintiffs
assert the Settlement Agreement should be modified to require Defendants to automatically
review Class Members’ and QAFMs’ employment authorization applications every year
for the duration of their parole. Plaintiffs’ proposed modification does not directly address
the conflict between the Settlement Agreement and HR-1, which concerns the length of
employment authorizations. Instead, it would impose a new obligation on Defendants to
automatically reconsider a parolee’s employment authorization application every year.
Because Plaintiffs’ proposed modification does not directly address the conflict and would
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impose a new obligation on Defendants, the Court declines to adopt it. Instead, the Court
adopts Defendants’ proposed modification and modifies Paragraph 5 of Section IV.C.1 to
state:
If the parole request is approved, USCIS will issue a travel document
authorizing parole for a period of 36 months from the date the individual is
paroled at the port of entry (for individuals outside the United States) or a
Form I-94, Arrival/Departure Record valid for 36 months from the date parole
is approved (for requests for parole in place). CBP has final authority to grant
parole at the port of entry. The Ms. L. Settlement Class member of Qualifying
Additional Family Member may apply for employment authorization pursuant
to 8 C.F.R. § 274a.12(c)(11) once he or she is paroled into the United States.
An initial Form I-765, Application for Employment Authorization (EAD
application), will be accepted and adjudicated without a fee waiver required
and, if approved, the time frame for employment authorization will be 1 year
or for the duration of the alien’s parole, whichever is shorter.
(modifications in italics).
The second issue on the present motion concerns HR-1’s fee provisions for parole,
employment authorization applications, and requests for asylum. According to HR-1,
asylum applications now require the payment of a $100 fee, 8 U.S.C. § 1802(a)-(b),
employment authorization applications now require the payment of a $550 fee, 8 U.S.C. §
1803(a)(1)-(2), (b)(1)-(2), and persons granted parole must now pay a fee of $1,000. 8
U.S.C. § 1804(a), (c). Defendants do not assert these fee provisions conflict with the
Settlement Agreement, and thus, they do not seek modification of the Settlement
Agreement on this issue. Instead, they state they are simply “informing” the Court that
they are going to start collecting the fees set out in HR-1.
Although Defendants do not request that the Court take any action on the fee issue,
Plaintiffs argue the Settlement Agreement prohibits Defendants from collecting these fees.
Plaintiffs rely generally on the overall intent of the Settlement Agreement, which was to
provide Class Members and QAFMs with a remedy for the injuries inflicted as a result of
the first Trump Administration’s family separation policy. Plaintiffs also rely on the
structure of the Settlement Agreement, which requires Defendants to bear the costs of those
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remedies. On the specific issue of fees, Plaintiffs rely on the following provisions set out
in Section IV.C.1 of the Settlement Agreement, which state:
(1) “USCIS will exempt the filing fee for the Form I-131, Application for Travel
Document (parole application), for all Ms. L. Settlement Class members’ and
Qualifying Additional Family Members’ parole requests submitted in compliance
with the [Family Reunification Task Force] Parole Filing Guides,” (Settlement
Agreement at 14),
(2) “An initial Form I-765, Application for Employment Authorization (EAD
application), will be accepted and adjudicated without a fee or a fee waiver required
and, if approved, the time frame for employment authorization will align with the
duration of parole,” (id. at 15),
(3) “Ms. L. Settlement Class members and Qualifying Additional Family Members
requesting re-parole will not be required to pay the parole application fee.” (id. at
17-18), and
(4) “USCIS will also exempt the filing fee for one Form I-765 renewal application
for employment authorization, with no fee waiver application required, based on a
period of re-parole granted under this settlement for Ms. L. Settlement Class
members and Qualifying Additional Family Members.” (Id. at 18.)1
Because Defendants have started imposing these fees on Class Members, (see Second
Supp. Decl. of Marien Velez Alcaide in Supp. of Pls.’ Notice Regarding Pending Motions,
ECF No. 931-6), the Court addresses the fee issue below.
Defendants’ first argument on this issue is the “new” fee structure was not in
existence when the Settlement Agreement was executed, therefore any exemption provided
1 Plaintiffs also point out that when the Settlement was finalized, USCIS had been enjoined from collecting
fees for asylum applications, (Opp’n at 3), a point Defendants do not dispute. For that reason, the
Settlement Agreement is silent on the issue of asylum fees. However, given the Settlement Agreement’s
language on the parole and employment authorization fees, and the imposition of other costs on
Defendants, the parties clearly intended for Class Members and QAFMs to be exempt from any asylum
fees. The Court’s discussion below therefore applies to asylum fees, as well.
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in the Settlement Agreement does not apply to the “new” fees. There are two problems
with this argument. First, the Court is not convinced these fees are actually “new.” Prior
to passage of HR-1, USCIS had authority to collect fees for parole applications, asylum
applications, and employment authorization applications under the implementing
regulations for 8 U.S.C. § 1356(m).2 See 8 C.F.R. §§ 106.2(a)(7) (parole), (28) (asylum),
and (44) (employment authorization). HR-1 increased the amount of those fees, but it did
not create “new” fees that did not exist before HR-1. Second, and contrary to Defendants’
suggestion, there is nothing in the Settlement Agreement that explicitly limits the
exemption to fees imposed pursuant to 8 U.S.C. § 1356(m). Rather, the exemption applies
to parole application fees and work authorization fees generally and without exception.
Absent explicit language limiting the exemptions to fees imposed under § 1356(m), the
Court declines to interpret the Settlement Agreement to include that limitation. See Davis
v. Woodford, 446 F.3d 957, 962 (9th Cir. 2006) (quoting People v. Gipson (In re Gipson),
117 Cal. App. 4th 1065, 1070 (2004)) (“in California, contracts … are ‘deemed to
incorporate and contemplate not only the existing law but the reserve power of the state to
amend the law or enact additional laws.’”)
Construing the exemption provision more broadly then, the question becomes
whether HR-1 itself precludes application of that provision. Defendants argue it does
because the statute says the Secretary of Homeland Security or the Attorney General “shall
require the payment of a fee,” 8 U.S.C. § 1802(a); 8 U.S.C. § 1803(a)(1); 8 U.S.C. §
2 This statute states: “Notwithstanding any other provisions of law, all adjudication fees as are designated
by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account
entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected
directly by the Attorney General or through clerks of courts: Provided, however, That all fees received by
the Attorney General from applicants residing in the Virgin Islands of the United States, and in Guam,
under this subsection shall be paid over to the treasury of the Virgin Islands and to the treasury of Guam:
Provided further, That fees for providing adjudication and naturalization services may be set at a level
that will ensure recovery of the full costs of providing all such services, including the costs of similar
services provided without charge to asylum applicants or other immigrants. Such fees may also be set at
a level that will recover any additional costs associated with the administration of the fees collected.” 8
U.S.C. § 1356(m).
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1804(a), and these fees “shall not be waived or reduced.” 8 U.S.C. § 1802(e); 8 U.S.C. §
1803(c)(5); 8 U.S.C. § 1804(f). Plaintiffs correctly point out, however, that the statute says
nothing about exemptions, which are different from waivers and reductions. See 8 C.F.R.
106.3 (discussing fee waivers and exemptions in separate sections). Because Defendants’
argument would require the Court to insert “exemptions” into the statute after Congress
failed to do so, the Court rejects it. See Lopez v. Garland, 116 F.4th 1032, 1043 (9th Cir.
2024) (quoting United States v. Temple, 105 U.S. 97, 99 (1881)) (stating Supreme Court
“observed long ago ‘[w]hen the language is plain, we have no right to insert words and
phrases, so as to incorporate in the statute a new and distinct provision.’”)
The Court also rejects Defendants’ argument that Congress’s failure to relieve Ms.
L. Class Members and QAFMs from the obligation to pay the HR-1 fees reflects the fees
should apply to them in the same way they apply to everyone else. In support of this
argument, Defendants rely on Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), but in that
case the court refused to construe Congress’s silence to “overrule[ ] a binding agreement
incorporated into a judicial decree[.]” Id. at 875. Instead, the court stated that when the
new laws were enacted, “Congress was on notice with respect to the government’s
obligations under the nationwide Flores Settlement and resulting consent decree,” and it
“therefore had the opportunity to address, and to explicitly modify if it wished to do so,
any provisions of the Settlement[.]” Id. Because Congress failed to do so, the court
“refuse[d] to read into such legislative silence any affirmative intent.” Id. So, too, here.
In light of the above discussion, the Court agrees with Plaintiffs that the Settlement
Agreement prohibits Defendants from collecting the fees set out in HR-1 from Class
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Members and QAFMs. To the extent Defendants have already requested those fees from
Class Members and QAFMs, they shall rescind those requests. Defendants shall also
refrain from imposing those fees going forward.
IT IS SO ORDERED.
Dated: February 5, 2026
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