Flores v. Rosen, No. 19-56326 (9th Cir. 2020)
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This case relates to the consent decree incorporating the Flores Agreement, a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention. The Agreement established nationwide standards for the detention, release, and treatment of minors by U.S. immigration authorities. The Agreement, by its own terms, terminates after the government's publication of final regulations implementing the Agreement. In 2019, the government issued final regulations represented as implementing, and thus terminating, the Agreement. The district court then concluded that the new regulations, on the whole, were inconsistent with the Agreement, enjoining the regulations from taking effect and denying the government's motion to terminate the Agreement.
The Ninth Circuit held that the provisions of the new regulations relating to unaccompanied minors are consistent with the Agreement except to the extent that they require ORR to place an unaccompanied minor in a secure facility if the minor is otherwise a danger to self or others and to the extent they require unaccompanied minors held in secure or staff-secure placements to request a hearing, rather than providing a hearing to those minors automatically unless they refuse one.
The panel also held that some of the regulations regarding initial detention and custody of both unaccompanied and accompanied minors are consistent with the Agreement and may take effect. However, the remaining new regulations relating to accompanied minors depart from the Agreement in several important ways. Therefore, the panel affirmed the district court's order enjoining those regulations. The panel further held that the district court correctly concluded that the Agreement was not terminated by the adoption of the regulations. Finally, the panel held that the district court did not abuse its discretion in denying the government's motion to terminate the Agreement, as the government has not demonstrated that changed circumstances, such as an increase in family migration, justify terminating the Agreement's protections.
Court Description: Immigration. In an action involving the Flores Agreement, a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention (“the Agreement”), the panel affirmed in part and reversed in part a district court order enjoining regulations represented as implementing the Agreement, and affirmed the district court’s denial of the government’s motion to terminate the Agreement. By the Agreement’s terms, it terminates after the “publication of final regulations implementing this Agreement.” In 2019, the Department of Homeland Security (“DHS”) and the Department of Health and Human Services (“HHS”) issued a final rule entitled “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children (“Final Rule”), which * Pursuant to Ninth Circuit General Order 3.2.h, Judge M. Smith, Jr. was drawn by lot to replace Judge Tashima, who has recused himself. Judge M. Smith, Jr. has reviewed the record and briefs in this case and listened to the oral argument before the prior panel. FLORES V. ROSEN 3 comprises two sets of regulations: one issued by DHS and one by HHS. The district court entered a permanent injunction enjoining enforcement of the Final Rule in its entirety. As to the HHS regulations relating to unaccompanied minors, the panel held that the provisions are generally consistent with the Agreement, and may take effect, with two exceptions. First, the panel concluded that the provision allowing the Office of Refugee Resettlement (“ORR”) to place an unaccompanied minor in a secure facility (e.g., a state or county juvenile detention facility) if the minor is “otherwise a danger to self or others” is inconsistent with the Agreement. The panel explained that the relevant statutory provision states that a minor shall not be placed in a secure facility “absent a determination that the child poses a danger to self or others,” not that ORR may place a minor in a secure facility whenever it makes that determination. Second, the panel concluded that the portion of the bond hearing regulations providing a hearing to unaccompanied minors held in secure or staff-secure placements only if they request one is inconsistent with the Agreement, which provides unambiguously for a bond hearing “unless the minor indicates . . . that he or she refuses such a hearing.” Although the panel held that the majority of the HHS regulations may take effect, it also held that the district court did not abuse its discretion in declining to terminate the portions of the Agreement covered by those regulations, noting that the government moved to terminate the Agreement in full, not to modify or terminate it in part. As to the DHS regulations regarding initial apprehension, processing, and custody of both unaccompanied and accompanied minors, the panel held that some of the provisions are consistent with the Agreement 4 FLORES V. ROSEN and may take effect: namely, the provisions regarding transfer of unaccompanied minors from DHS to HHS and those regarding DHS custodial care immediately following apprehension. However, the panel held that the remaining regulations relating to accompanied minors depart from the Agreement in two principal, related ways: (1) they limit the circumstances in which accompanied minors may be released, and (2) they provide for the detention of families together in facilities licensed not by states but by Immigration and Customs Enforcement itself. The panel explained that these departures undermine the Agreement’s core “presumption in favor of releasing minors” and its requirement that those not released be placed in “licensed, non-secure facilities that meet certain standards.” Explaining that these regulations dramatically increase the likelihood that accompanied minors will remain in government detention indefinitely, the panel observed that effecting this change was one of the principal features of the Final Rule, and that the government strongly disagrees with the court’s holding in Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) (“Flores I”), that the Agreement encompasses accompanied minors. Because the panel concluded that the differences between the regulations and the Agreement are substantial and affect the central protections afforded by the Agreement, the panel rejected the government’s argument that the Agreement terminated by its own terms. Finally, the panel held that the district court did not abuse its discretion in denying the government’s motion to terminate the Agreement as to accompanied minors, as the government had not demonstrated that changed circumstances justified termination. First, the panel rejected FLORES V. ROSEN 5 the government’s contention that, by codifying the Agreement’s protections for unaccompanied minors, Congress had signaled it was leaving the treatment of accompanied minors to DHS’s discretion. The panel explained that it had already held to the contrary in Flores I, where the court determined that the creation of statutory rights for unaccompanied minors does not make application of the Agreement to accompanied minors impermissible. Second, addressing the government’s contention that the Final Rule is a fundamental change in law justifying termination of the Agreement, the panel rejected the notion that the executive branch can unilaterally create the change that it then offers as the reason it should be excused from compliance. Although the Agreement contemplates termination upon the promulgation of consistent regulations, the panel explained it does not follow that the executive branch could bring about termination through the promulgation of inconsistent regulations. Third, the panel rejected the government’s argument that an unprecedented increase in family migration warrants termination of the Agreement. The government has three primary options when DHS encounters an accompanied minor: (1) release all family members, (2) detain the parent(s) or legal guardian(s) and release the minor to a parent or legal guardian, or transfer the minor to HHS as an unaccompanied minor, or (3) detain the family together at an appropriate family detention center. The panel observed that the government prefers the third option, but that the Agreement flatly precludes that approach. The panel explained that, if the only problem were a lack of licensed facilities to hold accompanied minors, then modification of the Agreement might be warranted, but the government sought a much more comprehensive change by jettisoning 6 FLORES V. ROSEN the Agreement’s release mandate for accompanied minors except in narrow circumstances. Even if the government has legitimate justifications for detaining adults, the panel concluded that it had not shown why it must also detain accompanying minors. The panel noted that the Final Rule suggests disingenuously that family separation is not preferable because it has generated significant litigation. The panel explained that the litigation cited relates to forcibly separating parents and children, but that nothing in the Agreement requires the government to take children against their parents’ will. Instead, the Agreement provides for the release of a minor to certain adult relatives and, if none of those relatives are available, provides a mechanism for parents to designate another individual or entity. Fourth, the panel rejected the government’s contention that flaws in the certified class of Plaintiffs constitute changed circumstances warranting termination of the Agreement. Observing that Flores I held that the government waived its ability to challenge the class certification when it settled the case and did not timely appeal the final judgment, the panel explained that the government cited no authority supporting its suggestion that the evolution of class certification standards warrants termination, particularly when the government has never moved to decertify or modify the class. FLORES V. ROSEN 7
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