there are several issues on appeal before the court today i am happy to address all of them and of course any of the court's questions with regard to any of the issues but i want to start by focusing on a few points related to two of the  issues st with regard to the district court's finding that u s customs and border protection was in violation of the florida settlement agreement the regard to conditions in the rio grande valley at border patrol station ok let me see if i  basic structure of this case right as it comes to us that we really don't have any jurisdiction over the case with respect to appointment of the monarchy unless some of the conditions of the agreement unless the terms of the agreement have been changed so the fight with respect to jurisdiction is whether or not all the district court's findings just a violation of the reman were changes to the agreement i got that right that's correct your honor i would note that in the order that's on appeal today the d court declined to order a special monitor that a later order did impose a special monitor on the government and that we had had a protective notice of appeal that we've recently dismissed so we are not appealing the later order appointing going forward there was another order and it was actually we have did appeal to orders in that appeal it was an order appointing the special monitor and then we had moved for rican partial reconsideration of that order and that was denied by so we had a single appeal pending for those two orders also hanging out there is the question of the regulation that while some of negate all this and started all over again all right but that's and that hasn't happened there is no regulation the final regulation is that correct your honor we  haven't had issued a proposed regulation of that comment period has closed i don't have any information on when final regulations will be issued got of course the government's position is what will terminate the floors agreement by its terms but whether that issue reaches this court is of course a question for another day cell but what that means is that for an end this case we have limited we have jurisdiction only  the green and i gather you agree with this that the order somehow amended the queen or modified that's correct your honor to the extent that and that goes to the judge such as question the to the extent that this court finds that the district court's order does nothing more than order the government to comply with the existing terms of the agreement than the government  acknowledges that this court would not have jurisdiction over the appeal and certainly reads that way another one struggling our order is paragraph such and such and force paragraph such and such and force paragraph such and such as in force that's the order at the end right correct your honor and i think that is really the structure of the order there are a few points where the government's position is that in in holding the government to what the district court found were the terms of the agreement it's our position that in fact she expanded the terms of the agreements and in one of the it believes at least one or two of the issues that we raised another source for jurisdiction is that she that is that the district court declined to and that's that's that would be correct your honor it in the district with with regard to those issues what we argued is that the the statutes and regulations really required that certain provisions of the agreement not be enforced in the way that the court eventually did enforce that and so do we have jurisdiction over that because that could that argument as you just presented is not that they can remain has been changed but rather that the agreement is no longer if that's the frame of the argument there there would be jurisdiction if if the district court declined to modify as the language of and did not actually did you ask the court to modify i would say that we did not directly ask the court to modify what we did was ask the court to read the read the agreement in conjunction with the later issued statute so to the extent that she that the district court read the agreement ignoring the later later issued statutes then we would argue that that meets the requirement of a declining to modify or declining to read oh ok lance you know i kind of smile we may take you over time but don't worry about that i think i'm being your appeal on your contention that some while some of these orders amended the you know the underlying consent decree does that carry with it the jurisdiction to examine and i think i think that the answer is that if the court finds that there was no amendment to the agreement that there would not be jurisdiction to reach our evidentiary issues i wish my answer was different because i think those are important and would would like the court to reach but i i believe my understanding of the statue would be that if the court finds no jurisdiction to hear the appeal in general then i can't see how the court would have juries not the most productive use for me  i would say i don't know that what we're peeling is sort of we have two issues that were killing the regard to a more singular finding of the district court which is ability for release to us and that i use i've raised in the district are isis simply not qualified to do that and i understand the district court's sort of conclusion that they shouldn't be allowed out of that simply because they're not qualified but the fact is that they're not qualified because the t v p r i has put that authority and put that mandate on to hit us and they are the ones with the expertise in that process  the district court held that it was specific lea ice was required to conduct that conduct the suitability finding of suitability is in fact part of the floors agreement and that was then interpretating very old agreement that was designed with the ins in mind which you know is no longer around and so i think to the extent that the district court really read the agreement took two and it having passed on to new agencies to apply specifically to this agency and the it would be this court could revenge this or court i believe this court could find shows your problem on this particular point only as to what part of the government's been directed to do this rather than what it has been directed to do correction or that seems pretty easy and maybe if we do have jurisdiction because modification of the agreement we have jurisdiction  attention you mean in our in our briefing yesterday there's a district art i i'm not finding it i'm looking through her opinion i'm not finding it sure let me and it's not very important but i just think th and twelve point five b as controlling release to twelve point five b can apply in conjunction with two hundred and thirty five point three before two which is which is what we argue also must apply in looking at parole for individuals who have not yet been found to have credible fear and that is that is our position here is that to the extent the court the district court read out the two  position then i think we agree but but our understanding of what the court was ordering was that was that ice could not apply the two hundred and thirty five three standard and was required only to apply that to twelve  says that we would agree it does directly apply but it doesn't read out of the picture two hundred and thirty five thousand two hundred and thirty five point three b so you read through to thirty five point three the limitations as exclusive and saying that unless they have an emergency medical or they're involved with law enforcement they can't get parole but this provision says that if they're changing accordance with two hundred and thirty five three b and they're juveniles they can't get parole i would then it notes that those individuals can get if they're not deemed to be a flight risk can get parole but for individuals who fall under the requirements of two hundred and thirty five point three those individuals must st meet the standards of the thirty five dollars and i would note that what what this says is simply how indeterminate under what conditions a juvenile should be paroled from detention so if they did you know is to be paroled in accordance with the is not in you just into the list of people listed in the other section so that those people really can't be paroled after  back up under the other one so that the other one is a meaningful sort of qual restriction but a pregnant woman is able to qualify how do you how do you do that i'm not sure i understand the question you've got two sections you say in order to get all of those individuals to the extent that they have not yet been found to have credible fear also apply under two hundred and thirty five point three  well know of that meeting they can be paroled but under the more narrow just standard in the us your life that's what's the standard that is parole is required to meet a medical emergency or is necessary for a legitimate law enforcement about being being certified to be pregnant isn't good enough you have to have a medical emergency well i think that that that that part would be st is that to thirty five dollars the st analysis is that they have to meet the requirements for that but here's a here's the problem i think you recognize it is really hard to say that simply being pregnant is a medical emergency and it's really hard to say that being pregnant is a law was was a later and acted regulation and it was intended to implement talk twenty five dollars b and to create a more restrictive standard for individuals who are still pending their credible fear of finding but it didn't say  in the c b p facilities ok but you're really going to stand up and tell us that being able to sleep isn't a question of safer sanitary conditions you're right i think what i'd like to what i'd like to stand up and say i guess is the focus as a focus the court decree and what i what i do want to know is that what the court what the district court looked at was not asking the question was you know is there a violation of the language of the consent decree and is is is this an overall violation of what the parties intended to prohibit it in the in the consent decree that's not the this record instead looked at it from a different angle the district court look st was there a violation of c b p zone ted just standard to sleep i think the concern there is your honor the court finding that sleep for example falls under is relevant to a finding of you know safe and sanitary conditions is one thing but the ultimate conclusion  the agencies to deter to determine or it was relatively obvious in its least obvious enough so that if you're put into peoples in the room crowded room to sleep on a concrete floor with an aluminum foil blanket on top of them that doesn't comply with the agreement when it may be that they don't get super thread count egyptian linens i get that but the testimony that the district judge believed was it's were reached the conclusion was to say these specific items and i think i will acknowledge i think sleep as is the more difficult and of what i'm arguing we now actually having an opinion that says that it's unconstitutional for make homeless people not sleep might correct your honor and i think i mean i do know what i think that's part of our point though is that we're not talking about the constitutional standard here and we're not talking about what what c b p has implemented more broadly as its own ted's policy we're talking about are you but are you are you are you seriously that you do not read the agreement as requiring you to do something our concern is that the district court really looked at a condition looked at and again as i said i think sleep is is clearly at that sort of one and of her findings i think her strongest argument and well i mean i think what i would go to is that when you started numerate ing for example specific hygiene items and the way that was done is that the court in sort of a decree doesn't have a list of items that have to be supply and i want to be senator oh what's a reasonable in your eyes with a reasonable definition of sanitary that the court could enforce well i think what i would ask is what i would say is the court i would ask that the court find that that the conditions were not safe and sanitary what the court found is these things fall within that category and by not providing them that's an automatic breach of the agreement was and i don't know what the automatic but to me it's more like it's just what you said it's within everybody's common understanding that you know if you don't have a toothbrush if you don't have so freak it's frequently intended to be much shorter term so it may be that for a shorter term stay in c p p custody that some of those things may not be required you know but i don't think that was the situation of the court was confronting me it wasn't as though those people were there for twelve hours and then moved on to the hilton hotel know you were there for a very severely sustained period and at least according to the evidence the judge believed they were getting these things for a fairly sustained period well i do want to minors who weren't moved to ursula very just to clarify at some point in your brief you appear to be saying that safe unsanitary has no independent me and that the following indeed there is another sentence that follows it that has some details and that's the only thing you're meaning and if that's the impression argument gave i apologize i think that the position is more general but to impose specific specific meanings that are not contained in the agreement it without in fact reaching the ultimate question of were the conditions overall in general as a general matter safe and sanitary is not it's not a correct finding of breach something in that if they're not and if they're not going to be able to be taken care of by their parents because their parents isn't attention and and after the last iteration of this case you're not going to get that parent frayed because of this agreement but still i don't i maybe i'm missing the stakes here but whether it's whatever it is whether it's ice or are if they're there if they're still banned by the game and what difference  we're not aware of a single case in which a child has been transferred from ice to o r or then the use of the major a so then if they're coming here and telling us that that's what they're supposed to be doing then they've got a major simply because the mother says i would like my child my child released to my mother the child's grandmother inseam francisco that is supposed to trigger and historically has triggered a grief investigation certainly they they they can assess the household and they should assess their household but that triggers a brief investigation into can the grandmother is that when other willing capable  care of that child that's taking place while the child is with the mother in a family detention center under federal law you cannot suddenly define it child as an unaccompanied minor just because the mother said i would like the least to my sister now once if the ice determines as it historically has for thirty three years they had that the grandmother is a good placement and they placed that child with their grandmother even then i don't think you can define the trial as an unaccompanied minor nor nor has the government ever done that so it would simply create an administrative nightmare with no written procedures about how to find a let me let me interject again is this issue properly before us given that has not been presented to the district court i don't think it is because again we suitable custody and that's all they ever argued there they didn't argue anything about that t v p r day and whether in really under the t v p r a us i'll say it again you know you've convinced counsel addressed which is that the district courts approach to deciding what was and was not sanitary went way beyond not an expert next contract will but i think she generally terms in an agreement have to be reasonably interpreted like what what was the reasonable intention of the parties i think that's fair to say concerns with a particular vulnerability so you have those three constellation of ideas so when you look when when you doing it's kind of and i think sanitary is an adjective it generally means to be free from dangers to one's health if you look up the web students dictionary and i'm not positive we had the webster's dictionary with us when we were negotiating the settlement but but it's as good a guide it any to what the what does this mean webster's dictionary defines sanitary as quote or relating to health if you look up the word clean is it clean in there anywhere sanitary sounds like it has some relation to cleanliness you know i think you then have to keep looking at further definitions to get to clean but i i i think they had what the court was looking at where is a reasonable interpretation of safe a little mystified by this notion i that we don't in this instance she wrote the agreement to say paragraphs such and such as in force paragraphs such and such as the groups in the two thousand and fifteen agreement she wrote the agreement with the order to say the defendant shall do x crime nobody thought that that was not an appealable or correct right even though it was even though it was in essence an order issues for the st time and so what you saw order is actually in forcing different parts of the sentiment we were somewhat frustrated that they were still not complying with the settlement or with their two thousand and fifteen order which at the same time we were in front of the line circuit dealing with and so we were perhaps overly cautious and   nd time to order them for the nd time to do this and we made the decision as clause counsel to seek the appointment of an independent more natural and that is the only thing we but i still don't know why the order in the form that issue which before it got to the question of the monitor denying the special my mask but but but say you should have this in china moni that you make a report to the court such and such a day or so monday has a report due any day and according to an order and i don't have the docket number but in order that the court issued just two weeks ago on june the team and pursuant to a stipulation that we reach with the government because we filed and another motion to enforce about a military style camp that they were running with two thousand children in florida unlicensed facility so we filed an important motion to new force and the the government and us agreed that that is being submitted to the special monitor for mediation  to hear that motion deal with that motion we have filed a non confidential brief government just yesterday we did it before filed a brief we're all meeting on thursday and friday and then the judge said in her order of opinion i e it's already been resolved where the question their position is that the license and secured requirement aren't not secure  might be a couple of ways to look at her position i think one way to look at it is to say beforehand then hold these children with their mothers in ohio since facility states do issue time i know that there is ongoing litigation in texas about where they were they can't get this type of license the folks that they give the money to to run those facilities have lobbied very hard in texas to get the texas whatever it's called department of children or family services to provide them with a license and that is an ongoing  ok thank you very much and we took the government well over time we can put three minutes on the clock please i just i wanted to see if i could hopefully answer a few of the jurisdictional really reads the st place way but you seem to be reading it the nd way well and i think that gets to sort of why i wanted to point that out those is that it hadn't been argued in front of the prior panel and i think it clarified our understanding of of this court understand that sort of two ways that we would we would read this is that if if what the district court said is that you are you are i am finding that you are not obligated per se to comply with your  these are numerated conditions and may be part of a senate unsanitary finding and if the court is saying there are not new requirements they're not added requirements and they're not it's not a direct finding that these are obligation then in fact if if the court is simply ordering comply and so with the existing term of the agreement in a way that that can be understood then then that's what the author says then now i think in that position we would we would understand the year of monitoring by the juvenile court nadirs the district court decided that that was insufficient and ordered a special title special master independent monitored so it's not so and therefore the question of whether so so what i in this order then we would also then go back to the district court and challenge really with a motion for reconsideration i come back and consider whether you really want to continue this if you didn't seem to be all that left of it release yesterday the plane just may fall a new motion with regard to the border patrol very soon and so i want to say that one of the issues that may still be very live is the evidentiary issue which we didn't discuss here today i think it's we understood that that was what we're being asked you i would note in the record that the judge specifically said that that would not have been allowed at the hearing and understandably so so it mean it with the conjunction with the most recent motion there were eighty declarations there were four hundred possible declarations that i mean this may that would be our approach your honor and it seems she never got to the point of saying how many of the one hundred you want to pull out because her position was that