Jenny Flores v. Jeffrey Rosen ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNY LISETTE FLORES, No. 19-56326
Plaintiff-Appellee,
D.C. No.
v. 2:85-cv-04544-
DMG-AGR
JEFFREY A. ROSEN, Acting Attorney
General; CHAD F. WOLF; U.S.
DEPARTMENT OF HOMELAND OPINION
SECURITY; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; U.S.
CUSTOMS AND BORDER PROTECTION,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted May 19, 2020
San Francisco, California
Filed December 29, 2020
2 FLORES V. ROSEN
Before: William A. Fletcher, Marsha S. Berzon, and
Milan D. Smith, Jr., * Circuit Judges.
Opinion by Judge Berzon
SUMMARY **
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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
COUNSEL
August E. Flentje (argued), Special Counsel to the Assistant
Attorney General; Sarah B. Fabian, Senior Litigation
Counsel; William C. Silvis, Assistant Director; Jeffrey
Robins, Deputy Director; William C. Peachey, Director;
Joseph Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellants.
Carlos R. Holguin (argued) and Peter A. Schey, Center for
Human Rights & Constitutional Law, Los Angeles,
California; Holly S. Cooper, Co-Director, Immigration Law
Clinic, University of California Davis School of Law, Davis,
California; Leecia Welch, Neha Desai, Poonam Juneja, and
Freya Pitts, National Center for Youth Law, Oakland,
California; Kevin Askew, Orrick Herrington & Sutcliffe
LLP, Los Angeles, California; for Plaintiff-Appellee.
Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle,
Constitutional Accountability Center, Washington, D.C., for
Amici Curiae Members of Congress.
James H. Hulme, Arent Fox LLP, Washington, D.C.;
David L. Dubrow and Melissa Trenk, Arent Fox LLP, New
York, New York; Justin A. Goldberg, Arent Fox LLP, Los
Angeles, California; for Amici Curiae American Pediatric
Association, American Pediatric Society, American
Academy of Child and Adolescent Psychiatry, American
Academy of Pediatrics, American Academy of Pediatrics
California Chapter, American Academy of Pediatrics
Pennsylvania Chapter, American Academy of Pediatrics
Texas Chapter, American Association for Psychoanalysis in
Clinical Social Work, American Medical Association,
8 FLORES V. ROSEN
American Professional Society on the Abuse of
Children, American Psychiatric Association, American
Psychoanalytic Association, Association of Medical
School Pediatric Department Chairs, California Medical
Association, California Psychiatric Association, Center for
Law and Social Policy, Center for Youth Wellness,
Children’s Defense Fund, Doctors for America, Lutheran
Immigration and Refugee Service, March of Dimes,
National Association of Pediatric Nurse Practitioners,
National Association of Social Workers, National Education
Association, Society for Pediatric Research, Women’s
Refugee Commission, First Focus On Children, Save The
Children Action Network Inc., Save The Children US,
United States Fund for UNICEF, and Zero To Three.
Amanda Aikman, Jennifer K. Brown, and Natasha Greer
Menell, Morrison & Foerster LLP, New York, New York,
for Amici Curiae Interfaith Group of 40 Religious and
Interreligious Organizations.
Alexis Coll-Very, Redwood City, California; Molly L.
Leiwant, New York, New York; Wendy Wylegala, Kids in
Need of Defense, New York, New York; for Amici Curiae
Kids in Need of Defense, Capital Area Immigrants’ Rights
Coalition, Catholic Legal Immigration Network Inc.,
Florence Immigrant and Refugee Rights Project, Immigrant
Children Advocates’ Relief Efforts, International Rescue
Committee, Legal Services for Children, National
Immigrant Justice Center, Northwest Immigrant Rights
Project, Public Counsel, and Young Center for Immigrant
Children’s Rights.
Sarah P. Alexander, Constantine Cannon LLP, San
Francisco, California, for Amici Curiae Human Rights
Watch and Amnesty International USA.
FLORES V. ROSEN 9
Aaron X. Fellmeth, Arizona State University, Sandra Day
O’Connor College of Law, Phoenix, Arizona; W. Warren H.
Binford, Willamette University College of Law, Salem,
Oregon; Blaine I. Green and Erica Turcios Yader, Pillsbury
Winthrop Shaw Pittman LLP, San Francisco, California;
Michael Garcia Bochenek, New York, New York; Stella
Burch Elias, University of Iowa College of Law, Iowa City,
Iowa; Ian M. Kysel, Cornell Law School, Ithaca, New York;
for Amici Curiae Legal Scholars and Nongovernmental
Organizations.
Joseph P. Lombardo, Sara T. Ghadiri, and Eric S. Silvestri,
Chapman and Cutler LLP, Chicago, Illinois, for Amici
Curiae Children’s Advocacy Organizations.
Xavier Becerra, Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Sarah E. Belton,
Supervising Deputy Attorney General; Virginia Corrigan,
Rebekah A. Fretz, Vilma Palma Solana, and Julia Harumi
Mass, Deputy Attorneys General; California Department of
Justice, Oakland, California; William Tong, Attorney
General, Hartford, Connecticut; Kathleen Jennings,
Attorney General, Wilmington, Delaware; Kwame Raoul,
Attorney General, Chicago, Illinois; Aaron M. Frey,
Attorney General, Augusta, Maine; Brian E. Frosh, Attorney
General, Baltimore, Maryland; Maura Healey, Attorney
General, Boston, Massachusetts; Dana Nessel, Attorney
General, Lansing, Michigan; Keith Ellison, Attorney
General, St. Paul, Minnesota; Aaron D. Ford, Attorney
General, Carson City, Nevada; Gurbir S. Grewal, Attorney
General, Trenton, New Jersey, Hector Balderas, Attorney
General, Santa Fe, New Mexico; Letitia James, Attorney
General, New York, New York; Ellen F. Rosenblum,
Attorney General, Salem, Oregon; Josh Shapiro, Attorney
10 FLORES V. ROSEN
General, Harrisburg, Pennsylvania; Peter F. Neronha,
Attorney General, Providence, Rhode Island; Thomas J.
Donovan Jr., Attorney General, Montpelier, Vermont;
Mark R. Herring, Attorney General, Richmond, Virginia;
Robert W. Ferguson, Attorney General, Olympia,
Washington; Karl A. Racine, Attorney General,
Washington, D.C.; for Amici Curiae States of California,
Connecticut, Delaware, Illinois, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, New York, Oregon, Pennsylvania, Rhode
Island, Vermont, Virginia, Washington, and the District of
Columbia.
Michael N. Feuer, City Attorney; Kathleen Kenealy,
Valerie L. Flores, Michael Dundas, and Danielle L.
Goldstein, Attorneys; Office of the City Attorney, Los
Angeles, California; Donna R. Ziegler, County Counsel,
Oakland, California; Craig Labadie, City Attorney, Albany,
California; Esteban A. Aguilar Jr., City Attorney,
Albuquerque, New Mexico; Joanna C. Anderson, City
Attorney, Alexandria, Virginia; Nina R. Hickson, City
Attorney, Atlanta, Georgia; Anne L. Morgan, City Attorney,
Austin, Texas; Andre M. Davis, City Solicitor, Baltimore,
Maryland; Farimah F. Brown, City Attorney, Berkeley,
California; Eugene O’Flaherty, Corporation Counsel,
Boston, Massachusetts; Nancy E. Glowa, City Solicitor,
Cambridge, Massachusetts; Mark A. Flessner, Corporation
Counsel, and Benna Ruth Solomon, Deputy Corporation
Counsel, Chicago, Illinois; William R. Hanna, Director of
Law, Cleveland Heights, Ohio; Zach Klein, City Attorney,
Columbus, Ohio; Sharon L. Anderson, County Counsel,
Martinez, California; Jessica M. Scheller, Assistant State’s
Attorney, Chicago, Illinois; Heather M. Minner, City
Attorney, Cupertino, California; Ronald C. Lewis, City
Attorney, Houston, Texas; Charles Parkin, City Attorney,
FLORES V. ROSEN 11
Long Beach California; Margaret L. Carter, O’Melveny &
Myers LLP, Los Angeles, California; Michael P. May, City
Attorney, Madison, Wisconsin; Leslie J. Girard, County
Counsel, Salinas, California; James E. Johnson, Corporation
Counsel, New York, New York; Barbara J. Parker, City
Attorney, Oakland, California; Marcel S. Pratt, City
Solicitor, Philadelphia, Pennsylvania; Cris Meyer, City
Attorney, Phoenix, Arizona; Yvonne S. Hilton, City
Solicitor, Pittsburgh, Pennsylvania; Tracy P. Reeve, City
Attorney, Portland, Oregon; Jeffrey Dana, City Solicitor,
Providence, Rhode Island; Susan Alcala Wood, City
Attorney, Sacramento, California; Dennis J. Herrera, City
Attorney, San Francisco, California; Richard Doyle, City
Attorney, San Jose, California; James R. Williams, County
Counsel, San Jose, California; Dana McRae, County
Counsel, Santa Cruz, California; Peter S. Holmes, City
Attorney, Seattle, Washington; Francis X. Wright Jr., City
Solicitor, Somerville, Massachusetts; Michael Jenkins, City
Attorney, Best Best & Krieger LLP, Manhattan Beach,
California; for Amici Curiae 37 Cities and Counties.
OPINION
BERZON, Circuit Judge:
We consider again 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”). The Agreement established
nationwide standards for the “detention, release, and
treatment of minors” by U.S. immigration authorities.
Agreement ¶ 9. By the Agreement’s own terms, it terminates
after the government’s “publication of final regulations
12 FLORES V. ROSEN
implementing this Agreement.” Id. ¶ 40 (as modified by
Stipulation, Dec. 7, 2001).
In 2019, the government issued final regulations
represented as implementing, and thus terminating, the
Agreement. The new regulations largely mirror the
Agreement’s protections for unaccompanied minors, but
they significantly reduce the limits on detention for minors
taken into custody with a family member or guardian
(“accompanied minors”). The district court concluded that
the new regulations, on the whole, were inconsistent with the
Agreement. It enjoined the regulations from taking effect
and denied the government’s motion to terminate the
Agreement.
We hold that the provisions of the new regulations
relating to unaccompanied minors are generally consistent
with the Agreement and may take effect, with two
exceptions. Additionally, some of the regulations regarding
initial detention and custody of both unaccompanied and
accompanied minors are consistent with the Agreement and
may take effect.
The remaining new regulations relating to accompanied
minors depart from the Agreement in several important
ways. We therefore affirm the district court’s order enjoining
those regulations. Additionally, the district court correctly
concluded that the Agreement was not terminated by the
adoption of the regulations. Finally, 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.
FLORES V. ROSEN 13
I.
A. The Flores Agreement
This case stems from a 1985 lawsuit filed on behalf of a
class of minors detained by U.S. immigration authorities.
After considerable litigation, the parties negotiated the
Agreement, entered by the district court as a consent decree
in January 1997. The Agreement applies to “[a]ll minors
who are detained in the legal custody of the INS,”
Agreement ¶ 10, and so covers both unaccompanied and
accompanied minors, Flores v. Lynch, 828 F.3d 898, 905–
08 (9th Cir. 2016) (“Flores I”). 1 It “creates a presumption in
favor of releasing minors and requires placement of those
not released in licensed, non-secure facilities that meet
certain standards.” Flores I, 828 F.3d at 901.
The Agreement anticipated that its terms would be
adopted into regulations. Paragraph 9 specifies that “[w]ithin
120 days of the final district court approval of this
Agreement, the INS shall initiate action to publish the
relevant and substantive terms of this Agreement as a
Service regulation” and that “[t]he final regulations shall not
be inconsistent with the terms of this Agreement.”
Agreement ¶ 9. Paragraph 40 of the Agreement originally
included a termination date, but in 2001 the parties stipulated
to extend the Agreement. As modified, paragraph 40
provides that “[a]ll terms of this agreement shall terminate
45 days following defendants’ publication of final
regulations implementing this Agreement.” The government
1
Although the Agreement refers to “INS,” the Immigration and
Naturalization Service’s obligations under the Agreement now apply to
the Department of Homeland Security (“DHS”) and the Department of
Health and Human Services (“HHS”). See Flores v. Sessions, 862 F.3d
863, 870 (9th Cir. 2017) (“Flores II”).
14 FLORES V. ROSEN
did not publish final regulations intended to implement the
Agreement until August 2019.
The Agreement imposes several substantive
requirements on the government’s detention of minors. It
requires the government to “hold minors in facilities that are
safe and sanitary and that are consistent with the INS’s
concern for the particular vulnerability of minors” and to
“place each detained minor in the least restrictive setting
appropriate to the minor’s age and special needs.”
Agreement ¶¶ 11, 12A. Ordinarily, within three days after
apprehending and detaining a minor, the government must
choose between two options for placing the minor. Id. ¶ 12A.
The first option, discussed in paragraph 14, is releasing the
minor to a parent, legal guardian, adult relative, or another
“capable and willing” designated adult or entity. Release is
mandatory if the minor presents neither a flight nor a safety
risk and a qualified custodian is available. Alternatively,
under paragraph 19, the minor may be placed in a facility
“licensed by an appropriate State agency to provide
residential, group, or foster care services for dependent
children.” Id. ¶ 6. Licensed facilities must be “non-secure as
required under state law.” Id.
There are some exceptions to the Agreement’s
placement and time requirements. For instance, a minor may
be placed in a secure juvenile detention facility under
paragraph 21 in limited circumstances, such as when the
minor has been charged with a crime. Id. ¶¶ 12A(1), 21. And
“in the event of an emergency or influx of minors into the
United States,” the requirement that minors be placed within
three days is relaxed, provided that “the INS shall place all
minors pursuant to Paragraph 19 as expeditiously as
possible.” Id. ¶ 12A(3). An “influx of minors” occurs if
FLORES V. ROSEN 15
“more than 130 minors” are awaiting placement in a non-
secure licensed facility under paragraph 19. Id. ¶ 12B.
Finally, the Agreement mandates that a minor in
deportation proceedings who is not released is entitled to a
bond hearing before an immigration judge, “unless the minor
indicates on the Notice of Custody Determination form that
he or she refuses such a hearing.” Id. ¶ 24A.
B. Subsequent developments
The INS published a proposed rule in 1998, stating that
the “substantive terms of the settlement form the basis for
the proposed rule.” 63 Fed. Reg. 39,759, 39,759 (1998). In
January 2002, shortly after the Agreement was extended, the
INS announced it was “reopening the comment period” and
particularly sought “comments that relate to issues that have
come to the public’s attention since the close of the original
comment period in 1998.” 67 Fed. Reg. 1670, 1670 (2002).
That rulemaking process did not result in a final rule.
In 2002, Congress passed the Homeland Security Act,
Pub. L. No. 107-296, 116 Stat. 2135, which abolished INS
and transferred most immigration functions to the newly
formed DHS, which houses Immigration and Customs
Enforcement (“ICE”). 6 U.S.C. §§ 111, 251, 291. But the
Act assigned responsibility for the care of “unaccompanied
alien children who are in Federal custody by reason of their
immigration status” to the Office of Refugee Resettlement
(“ORR”), housed within HHS. Id. § 279(a), (b)(1)(A).
In 2008, Congress elaborated on ORR’s duties relating
to the care and custody of unaccompanied children in the
Trafficking Victims Protection Reauthorization Act
(“TVPRA”). Pub. L. No. 110-457, 122 Stat. 5044(principally codified in relevant part at 8 U.S.C. § 1232). The
16 FLORES V. ROSEN
TVPRA “partially codified the [Flores Agreement] by
creating statutory standards for the treatment of
unaccompanied minors.” Flores I, 828 F.3d at 904.
C. Flores I & II
Before September 11, 2001, “families apprehended for
entering the United States illegally were most often released
rather than detained because of a limited amount of family
bed space; families who were detained had to be housed
separately, splitting up parents and children.” Id. at 903
(internal quotation marks omitted). After 2001, immigration
policy changed, “with more restrictive immigration controls,
tougher enforcement, and broader expedited removal of
[inadmissible] aliens, which made the automatic release of
families problematic.” Id. (internal quotation marks
omitted). Nonetheless, until 2014, ICE “generally releas[ed]
parents who were not flight or safety risks.” Id. at 908.
In 2014, ICE responded to a surge of migrating families
from Central America by opening new family detention
centers in Texas, which it operated under internal standards
that did not comply with the Agreement. Id. at 904. (ICE also
operated a state-licensed family detention center in
Pennsylvania. Id. at 903.) Plaintiffs moved to enforce the
Agreement, arguing both that ICE was violating its terms by
holding minors in secure, unlicensed facilities, and that the
Agreement required ICE to release a minor’s accompanying
parent, absent a flight or safety risk. Id. at 905. The
government responded that the Agreement did not apply to
accompanied minors, id., and that even if it did, the
Agreement should be modified to exclude them from
coverage, given “the surge in family units” crossing the
southwest border and the passage of the Homeland Security
Act and the TVPRA, id. at 909–10.
FLORES V. ROSEN 17
Flores I held that the plain language of the Agreement
covers accompanied minors but that the Agreement does not
require the government to release parents. Id. at 905, 908.
Importantly, the Agreement’s applicability to accompanied
minors does not mean that detained parents and their
children must be separated. If the government does not
release parents, the parents have a choice, albeit a difficult
one: they may choose to exercise their children’s right to
release under the Agreement, provided a suitable sponsor is
available, or they may waive their children’s rights and keep
their children with them.
Flores I also rejected the government’s motion to modify
the Agreement. Id. at 909–10. We held that the government
had not shown that the surge in family migration was
unanticipated, and even if it was, modifying the Agreement
to exempt accompanied minors was not a “‘suitably tailored’
response.” Id. at 910 (quoting Rufo v. Inmates of Suffolk Cty.
Jail, 502 U.S. 367, 383 (1992)). We also held that the
Homeland Security Act and the TVPRA did not make
application of the Agreement to accompanied minors
“impermissible.” Id.A year later, we held that nothing in the Homeland
Security Act or the TVPRA excused the government from
providing detained, unaccompanied minors with bond
hearings as required by the Agreement. Flores II, 862 F.3d
at 881. We observed that “[t]he bond hearing under
Paragraph 24A is a fundamental protection guaranteed to
unaccompanied minors under the Flores Settlement” and
that it “provide[s] minors with meaningful rights and
practical benefits.” Id. at 867.
18 FLORES V. ROSEN
D. The Final Rule
In August 2019, DHS and HHS jointly issued a final rule
entitled “Apprehension, Processing, Care, and Custody of
Alien Minors and Unaccompanied Alien Children.” 84 Fed.
Reg. 44,392 (Aug. 23, 2019) (“Final Rule”). According to
the rule’s preamble, the agencies’ intention was to
implement the Flores Agreement “in a manner that is
workable in light of subsequent statutory, factual, and
operational changes.” Id. at 44,392. The Final Rule
comprises two sets of regulations: one issued by DHS and
the other by HHS. The DHS regulations address the
apprehension and processing of both unaccompanied and
accompanied minors, as well as the care and custody of
accompanied minors. See id. at 44,525–30 (codified at
8 C.F.R. §§ 212.5, 236.3). The HHS regulations address
only the care and custody of unaccompanied minors. See id.
at 44,530–35 (codified at 45 C.F.R. pt. 410). The DHS
regulations provide that after DHS apprehends
unaccompanied minors, it ordinarily transfers them to the
custody of HHS. 2 Id. at 44,526 (codified at 8 C.F.R.
§ 236.3(f)).
While the HHS regulations generally track the
Agreement with respect to the treatment of unaccompanied
minors, the DHS regulations applicable to the care and
custody of accompanied minors, by design, depart
significantly from the Agreement. The Final Rule explains
at the outset that the Agreement’s “application to
accompanied minors has created a series of operational
difficulties for DHS, most notably with respect to a state-
2
Under the TVPRA, children from contiguous countries may in
some circumstances be returned to those countries instead of being
transferred to the custody of HHS. See 8 U.S.C. § 1232(a)(2).
FLORES V. ROSEN 19
licensing requirement for an ICE Family Residential Center
. . . in which such parents/legal guardians may be housed
together with their children during immigration
proceedings.” 84 Fed. Reg. at 44,393. Although the
Agreement requires that minors who are not released must
be transferred to a state-licensed program unless one of the
limited criteria permitting secure detention is satisfied, see
supra p. 14–15, only two states license facilities in which
adults and children are housed together, see 84 Fed. Reg. at
44,394, 44,419. The DHS regulations both limit the
circumstances under which accompanied minors may be
released and “create[] an alternative to the existing licensed
program requirement for ICE family residential centers,”
allowing ICE to operate family detention centers under
internal standards, without state oversight. Id. at 44,392; see
id. at 44,394.
E. The district court’s order
After the government initially proposed the regulations
in 2018 and before they were final, Plaintiffs filed a motion
to enforce the Agreement, arguing that the proposed
regulations amounted to an anticipatory breach and seeking
to enjoin the government from implementing them. The
district court deferred consideration of Plaintiffs’ motion
until the regulations became final. After the government
issued its Final Rule, it filed a notice of termination of the
Agreement—asserting that the Agreement expired by its
own terms following publication of the Final Rule—and a
motion in the alternative to terminate the Agreement under
Rule 60(b) of the Federal Rules of Civil Procedure.
In September 2019, about a month before the Final Rule
was to take effect, the district court granted Plaintiffs’
motion to enforce and denied the government’s motion to
terminate. The district court concluded that the Final Rule
20 FLORES V. ROSEN
did not terminate the Agreement because it was inconsistent
with the Agreement and therefore did not “implement[]” it
as required by paragraph 40’s termination clause. The
district court also declined to terminate the Agreement under
Rule 60(b) because, it held, the government had not
demonstrated that changed circumstances warranted
termination. In granting relief to Plaintiffs, the district court
reasoned that the Agreement by its own terms precluded
implementation of the Final Rule, as the Agreement
provided that the regulations “shall not be inconsistent” with
it. Agreement ¶ 9. The district court entered a permanent
injunction enjoining enforcement of the Final Rule in its
entirety, denying the government’s request to “sever the new
regulations into valid and invalid portions.”
II.
The district court’s interpretation of the Agreement is
reviewed de novo. Flores I, 828 F.3d at 905. Decisions on
“[m]otions for relief from judgment under Rule 60(b) are
reviewed for abuse of discretion.” United States v. Asarco
Inc., 430 F.3d 972, 978 (9th Cir. 2005).
A. The HHS regulations
We begin with the HHS regulations applicable to
unaccompanied minors. The regulations largely parallel the
Agreement with respect to unaccompanied minors’
placement and care. For example, both the regulations and
the Agreement direct the release of minors “without
unnecessary delay,” unless continued custody is necessary
to ensure the minor’s safety or the safety of others or to
secure the minor’s timely appearance before DHS or the
immigration courts. Compare 84 Fed. Reg. at 44,532
(codified at 45 C.F.R. § 410.301(a)), with Agreement ¶ 14.
Both provide the same ranked list of potential custodians to
FLORES V. ROSEN 21
whom a minor may be released, including a parent; legal
guardian; other adult relative; an adult or entity designated
by a parent or legal guardian; a licensed program willing to
accept legal custody; or, in the absence of a likely alternative
to long-term custody, another adult or entity seeking
custody. Compare 84 Fed. Reg. at 44,532–33 (codified at
45 C.F.R. § 410.301(b)), with Agreement ¶ 14. And both
direct that minors who remain in the government’s
custody—either because they present a safety or flight risk,
or because a suitable custodian has not yet been found—
must ordinarily be placed promptly in a “licensed program.”
Compare 84 Fed. Reg. at 44,531, 44,533 (codified at
45 C.F.R. §§ 410.202, .302), with Agreement ¶¶ 12.A, 19.
The regulations and the Agreement provide the same
definition of and standards for licensed programs. Compare
84 Fed. Reg. at 44,530, 44,533–34 (codified at 45 C.F.R.
§§ 410.101, .402), with Agreement ¶ 6 & Ex. 1.
Despite the evident consistency between the Agreement
and several provisions of the HHS regulations, the district
court enjoined the regulations in their entirety. The district
court found fault with three aspects of the HHS regulations:
(1) their replacement of the Agreement’s mandatory
language with purportedly nonmandatory language; (2) their
provisions for placing a minor in a secure facility; and
(3) their provisions for bond hearings. We address each issue
in turn.
1. Mandatory language
The district court held that the HHS regulations were
inconsistent with the Agreement because the regulations use
descriptive, not mandatory, language. For example, while
the Agreement requires that minors not released “shall be
placed temporarily in a licensed program” whose homes and
facilities “shall be non-secure as required under state law,”
22 FLORES V. ROSEN
Agreement ¶¶ 6, 19 (emphasis added), the regulations state
that “ORR places [unaccompanied minors] into a licensed
program” and that “ORR places each [minor] in the least
restrictive setting that is in the best interest of the child and
appropriate to the [minor’s] age and special needs,” 84 Fed.
Reg. at 44,531 (codified at 45 C.F.R. §§ 410.201(a),
410.202) (emphasis added). The government asserts on
appeal that “the use of the present tense in this and other
provisions does not render these provisions optional; they
are mandatory.” We will hold the government to its word.
HHS and ORR are bound by and must comply with the
descriptive language in the HHS regulations as equivalent to
the mandatory requirements in the Agreement. So
interpreted, the descriptive language in the regulations is
consistent with the Agreement.
2. Placement in a secure facility
The Agreement provides that a minor may be held in a
secure facility, such as a state or county juvenile detention
facility, in five circumstances. Agreement ¶ 21. To
summarize (although the actual circumstances are somewhat
more extensive), the government may opt for secure
placement whenever it determines that a minor (1) has been
charged with a crime or is the subject of delinquency
proceedings; (2) has committed or threatened to commit
violence while in government custody; (3) has engaged in
“unacceptably disruptive” conduct, such as drug or alcohol
abuse, while in a licensed program; (4) is an escape-risk; or
(5) must be held in a secure facility for the minor’s own
safety, such as when the government has reason to believe a
particular minor may be abducted by a smuggler. See id.In the TVPRA, Congress directed that an
unaccompanied minor “shall not be placed in a secure
facility absent a determination that the child poses a danger
FLORES V. ROSEN 23
to self or others or has been charged with having committed
a criminal offense.” 8 U.S.C. § 1232(c)(2)(A). The HHS
regulations incorporate this statutory standard. See 84 Fed.
Reg. at 44,531–32 (codified at 45 C.F.R. § 410.203). Like
the Agreement, the regulations allow placement in a secure
facility in five circumstances, the first three of which are
nearly identical to the first three circumstances listed in the
Agreement. The regulations add to the first and third
circumstances a required finding that the minor “poses a
danger to self or others.” Id. (codified at 45 C.F.R.
§ 410.203(a)(1), (3)). Neither the district court nor Plaintiffs
take issue with this addition.
The HHS regulations dispense with the fourth and fifth
circumstances in the Agreement that permit placement in
secure facilities. In their place, the regulations substitute two
additional circumstances in which a minor may be placed in
a secure facility: “(4) For purposes of placement in a secure
residential treatment center[] . . . , if a licensed psychologist
or psychiatrist determines that the [minor] poses a risk of
harm to self or others; or (5) [if the minor] [i]s otherwise a
danger to self or others.” Id. at 44,532 (codified at 45 C.F.R.
§ 410.203(a)(4), (5)). The fourth circumstance is consistent
with the district court’s interpretation of the Agreement in a
2018 order, and again, neither the district court nor Plaintiffs
challenge it. See Flores v. Sessions, No. CV 85-4544, 2018
WL 10162328, at *10–11 (C.D. Cal. July 30, 2018).
The district court held that the fifth circumstance—
which allows placement of a minor in a secure facility upon
an agency determination that the minor is “otherwise a
danger to self or others”—is a “significant deviation” from
the Agreement. The government insists that “this standard
comes directly from the TVPRA” and “implements
Paragraph 21” of the Agreement. Additionally, the
24 FLORES V. ROSEN
government points to the assurance, later in the same section
of the HHS regulations, that “[n]otwithstanding ORR’s
ability . . . to place [unaccompanied minors] who are
‘otherwise a danger to self or others’ in secure placements,
the provision in this section does not abrogate any
requirements to place [unaccompanied minors] in the least
restrictive setting appropriate to their age and special needs.”
84 Fed. Reg. at 44,532 (codified at 45 C.F.R. § 410.203(d)).
We agree with the district court that nothing in the
TVPRA requires the fifth, catchall circumstance in the HHS
regulations and that the catchall provision is inconsistent
with the Agreement. The TVPRA 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,” 8 U.S.C.
§ 1232(c)(2)(A) (emphasis added), not that ORR may place
a minor in a secure facility whenever it makes that
determination. As the district court explained, the
government in the Agreement committed to limit the
circumstances under which secure detention would be
permitted to those specifically enumerated in paragraph 21
of the Agreement. By adding a catchall provision, the HHS
regulations broaden the circumstances in which a minor may
be placed in a secure facility and are therefore inconsistent
with the Agreement.
The government’s assurance that it will comply with its
obligation to place minors in the least restrictive setting
appropriate does not affect that conclusion, as it would not
prevent the government from relying on the catchall
provision as a ground for the determination that a child’s
least restrictive setting is a secure facility. Nor is the
inconsistency between the regulations and the Agreement
required by the TVPRA, as the government can comply with
both the TVPRA and the Agreement by abiding by the
FLORES V. ROSEN 25
Agreement’s limitations. See Flores II, 862 F.3d at 874. We
therefore conclude that the catchall provision, 45 C.F.R.
§ 410.203(a)(5), is inconsistent with the Agreement and may
not take effect.
3. Bond hearings
The Agreement provides that a “minor in deportation
proceedings” who is kept in government custody “shall be
afforded a bond redetermination hearing before an
immigration judge in every case, unless the minor indicates
on the Notice of Custody Determination form that he or she
refuses such a hearing.” 3 Agreement ¶ 24A. “The bond
hearing under Paragraph 24A is a fundamental protection
guaranteed to unaccompanied minors under the Flores
Settlement.” Flores II, 862 F.3d at 867. That is so even
though “a favorable finding in a hearing under
Paragraph 24A does not entitle minors to release.” Id.
Release is not guaranteed upon a finding by the immigration
judge “that the form of detention ORR has imposed is
improper” because “the government must still identify a safe
and secure placement into which the child can be released.”
Id. Nonetheless, a bond hearing “does provide minors with
meaningful rights and practical benefits.” Id. Without one,
minors “have no meaningful forum in which to challenge
ORR’s decisions regarding their detention or even to
3
“Administrative removal proceedings to determine a non-citizen’s
right to remain in the United States [are] re-designated as ‘removal’
rather than ‘deportation’ under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
110 Stat. 3009 (1996).” Flores II, 862 F.3d at 869 n.5. We “therefore
treat[] ‘deportation proceedings’ as addressed in the [Agreement] to be
the equivalent of the ‘removal proceedings’ that take place under the
current statutory framework.” Id.
26 FLORES V. ROSEN
discover why those decisions have been made.” Id. at 867–
68.
Like the Agreement, the HHS regulations provide
unaccompanied minors held in government custody with an
opportunity for a bond hearing, but the hearing is before an
HHS adjudicator instead of an immigration judge. See
84 Fed. Reg. at 44,535 (codified at 45 C.F.R. § 410.810).
Under the regulations, an unaccompanied minor “may
request that an independent hearing officer employed by
HHS determine . . . whether the [minor] would present a risk
of danger to the community or risk of flight if released.” Id.(codified at 45 C.F.R. § 410.810(a)) (emphasis added). The
preamble to the Final Rule explains that the regulations are
intended to “afford the same type of hearing
paragraph 24(A) calls for, while recognizing the transfer of
responsibility of care and custody of [unaccompanied
minors] from the former INS to HHS ORR. . . . The idea was
to provide essentially the same substantive protections as
immigration court custody hearings, but through a neutral
adjudicator at HHS rather than DOJ.” Id. at 44,476.
The district court rejected the HHS hearing regulations
as inconsistent with the Agreement. The court reasoned that
the regulations depart from the Agreement by (1) shifting
bond redetermination hearings “away from independent
immigration judges” and (2) transforming the hearings “into
an opt-in rather than opt-out right.” The district court
concluded that these differences “would effectively
abrogate” the Agreement’s guarantee of a bond hearing. We
disagree with the district court as to the first inconsistency it
perceived and agree, in part, as to the second.
The regulations’ provision for a hearing before “an
independent hearing officer employed by HHS,” rather than
an immigration judge, is not a material departure from the
FLORES V. ROSEN 27
Agreement. 84 Fed. Reg. at 44,535 (codified at 45 C.F.R.
§ 410.810(a)). When the Agreement was signed, it applied
to minors “detained in the legal custody of the INS.”
Agreement ¶ 10. The INS, like the Executive Office for
Immigration Review—the agency employing immigration
judges—was housed in the Department of Justice. See
84 Fed. Reg. at 44,479. As a consequence of Congress’s
assigning responsibility for unaccompanied minors to HHS
in the Homeland Security Act and the TVPRA, HHS is the
INS’s successor agency for purposes of the Agreement’s
provisions relating to the care and custody of
unaccompanied minors. That reassignment of responsibility
attenuated the connection between immigration judges and
the government’s custody determinations for those minors.
Shifting bond redetermination hearings for unaccompanied
minors from immigration judges, adjudicators employed by
the Justice Department, to independent adjudicators
employed by HHS is a permissible interpretation of the
Agreement, so long as the shift does not diminish the due
process rights the Agreement guarantees.
We conclude it does not. Flores II identified the critical
due process rights afforded by a bond hearing under the
Agreement: (a) the “right to be represented by counsel”;
(b) the “right to make an oral statement”; (c) the right to
“examine and rebut the government’s evidence”; (d) the
right to “create an evidentiary record”; (e) the right “to have
the merits of [the minor’s] detention assessed by an
independent” adjudicator; and (f) the right to appeal the
adjudicator’s decision. 862 F.3d at 867–68, 879. The
government asserts that the HHS regulations guarantee the
very protections identified in Flores II. See 84 Fed. Reg. at
44,478. Consistent with the government’s commitment, we
interpret the regulations as requiring the government to
provide these protections. See id. at 44,535 (codified at
28 FLORES V. ROSEN
45 C.F.R. § 410.810(c) (right to representation by counsel;
right to present oral and written evidence), (b) (requiring
HHS to present evidence “support[ing] its determination”
that a minor “would pose a danger or flight risk if
discharged” and allowing the minor an opportunity to “show
that he or she will not be a danger to the community or flight
risk if released”), (a) (right to a “written decision” by an
“independent hearing officer”), (e) (right to appeal the
hearing officer’s decision to the Assistant Secretary of the
Administration for Children and Families)).
The right we recognized in Flores II to an independent
assessment of custody determinations was not the right to
have those determinations reviewed by an immigration
judge in particular, but the right to have such determinations
reviewed by an adjudicator “independent” from the entity
making the determinations. 862 F.3d at 867. The regulations
guarantee a hearing before an “independent” hearing officer.
84 Fed. Reg. at 44,535 (codified at 45 C.F.R. § 410.810(a));
see id. at 44,479. Neither Plaintiffs nor the district court
explains why independent hearing officers employed by
HHS would not be as competent to make custody
determinations as immigration judges, who are employed by
the Justice Department and are subject to supervision by the
Attorney General. 4 As explained in the preamble to the Final
Rule, the government anticipates that the independent
4
See, e.g., Memorandum from the U.S. Attorney General to the
Executive Office for Immigration Review, Renewing Our
Commitment to the Timely and Efficient Adjudication of Immigration
Cases to Serve the National Interest (Dec. 5, 2017), available at
https://www.justice.gov/eoir/file/1041196/download; Memorandum
from Director, Executive Office for Immigration Review, to the Office
of the Chief Immigration Judge et al., Case Priorities and Immigration
Court Performance Measures (Jan. 17, 2018), available at
https://www.justice.gov/eoir/page/file/1026721/download.
FLORES V. ROSEN 29
hearing office established by HHS to conduct hearings under
the regulations will “accrue specialized expertise and at least
in theory be able to make adjudications more quickly and
effectively than immigration judges who remain largely
unfamiliar with ORR policies and practices.” Id. at 44,483.
We conclude that the regulations’ provision for a hearing
before an “independent hearing officer employed by HHS”
is consistent with the Agreement.
We agree with the district court, however, that the
distinction between the Agreement’s opt-out process for
obtaining a bond hearing and the regulations’ opt-in process
is significant for some unaccompanied minors. The text of
the Agreement provides unambiguously for a bond hearing
“unless the minor indicates on the Notice of Custody
Determination form that he or she refuses such a hearing.”
Agreement ¶ 24.A. Under the regulations, in contrast, a
minor, the minor’s legal representative, or the minor’s parent
or legal guardian “may request” a hearing. 84 Fed. Reg.
at 44,535 (codified at 45 C.F.R. § 410.810(a)).
The government maintains that the difference is
immaterial in practice. The preamble to the Final Rule
explains that HHS has not automatically instituted a bond
redetermination hearing for every unaccompanied minor in
custody who does not affirmatively refuse one. Id. at 44,478.
Instead, the agency gives every such minor “the opportunity
to request a bond hearing.” Id. Most unaccompanied minors
in ORR custody are placed in shelters or group homes
because ORR has determined that these minors do not
present a safety or flight risk. See id. at 44,477. These minors
remain in custody only because a suitable custodian has not
yet been found. See id. at 44,533 (codified at 45 C.F.R.
§ 410.302(a)). Unaccompanied minors in these placements
are entitled to request a bond hearing, see id. at 44,480, but
30 FLORES V. ROSEN
if they do, ORR typically stipulates that “it does not consider
the children to be dangerous or flight risks,” id. at 44,477,
44,480. As to these minors, we agree that the distinction
between an opt-out and an opt-in right to a hearing is
immaterial. The stipulations fulfill the purpose of the bond
hearings for these minors, as the bond hearings do not decide
anything beyond whether the minors present a safety or
flight risk. See supra pp. 25–26. Automatically holding bond
hearings, notwithstanding the stipulations, would be
pointless.
The situation is different for unaccompanied minors
placed in secure or staff-secure facilities, however. 5 The
regulations provide that unaccompanied minors “placed in
secure or staff secure facilities” will receive notice of their
right to request a bond hearing and may use a form provided
to them to request one. 6 84 Fed. Reg. at 44,535 (codified at
45 C.F.R. § 410.810(a)(2)). All minors in ORR custody must
also be provided with a list of free legal services providers.
Id. (codified at 45 C.F.R. § 410.801(b)(1)). Additionally, the
regulations permit a minor’s legal representative, parent, or
legal guardian to request a hearing. Id. (codified at 45 C.F.R.
§ 410.810(a)(1)).
The government represents that these provisions
“mirror[] current practice.” 84 Fed. Reg. at 44,478. As to
unaccompanied minors held in secure or staff-secure
5
If a minor presents a flight risk, ORR may place the minor in a
“staff secure” facility, which is a licensed program with “stricter security
measures, such as intensive staff supervision . . . to control problem
behavior and to prevent escape.” 84 Fed. Reg. at 44,531 (codified at
45 C.F.R. § 410.101).
6
“For purposes of 810 hearings, HHS plans to treat [residential
treatment centers] as secure facilities.” 84 Fed. Reg. at 44,480.
FLORES V. ROSEN 31
placements, however, for whom the bond hearing is a
“fundamental protection,” Flores II, 862 F.3d at 867, current
practice does not supersede the plain language of the
Agreement. The opt-out process is a “meaningful”
procedural right for these minors. Flores II, 862 F.3d at 867.
The government has apparently disregarded that right in
practice, but it does not follow that we can sanction that
disregard.
We conclude that the HHS hearing regulations are
consistent with the Agreement except to the extent that 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.
* * *
In sum, the HHS regulations are largely consistent with
the Agreement, with the exceptions we have detailed. The
district court erred in enjoining the HHS regulations in their
entirety, as there is no legal justification for enjoining the
consistent regulations. The Agreement forbids only
“inconsistent” regulations, Agreement ¶ 9, and the Final
Rule provides that the regulations are severable: “To the
extent that any portion of this final rule is declared invalid
by a court, the Departments intend for all other parts of the
final rule that are capable of operating in the absence of the
specific portion that has been invalidated to remain in
effect,” 84 Fed. Reg. at 44,408; see MD/DC/DE
Broadcasters Ass’n v. FCC, 236 F.3d 13, 22 (D.C. Cir.
2001).
The HHS regulations may therefore take effect, with two
exceptions. First, the broad provision allowing ORR to place
an unaccompanied minor in a secure facility if the minor is
“otherwise a danger to self or others,” 45 C.F.R.
32 FLORES V. ROSEN
§ 410.203(a)(5), is inconsistent with the Agreement and may
not take effect. Second, the portion of the hearing regulations
providing a hearing to unaccompanied minors held in secure
or staff-secure placements only if they request one, see id.
§ 410.810(a), may not take effect. As to these minors, HHS
must implement paragraph 24.A of the Agreement as written
and provide a hearing unless one is refused. 7
Although we hold that the majority of the HHS
regulations may take effect, we also hold that the district
court did not abuse its discretion in declining to terminate
those portions of the Agreement covered by the HHS
regulations. The government moved the district court to
terminate the Agreement in full, not to modify it or terminate
it in part. The Agreement therefore remains in effect,
notwithstanding the overlapping HHS regulations. If the
government wishes to move to terminate those portions of
the Agreement covered by the valid portions of the HHS
regulations, it may do so.
B. The DHS regulations
1. Initial apprehension and processing of both
unaccompanied and accompanied minors
As noted above, the DHS regulations address the
apprehension and processing of both unaccompanied and
accompanied minors, as well as the care and custody of
accompanied minors. See 84 Fed. Reg. at 44,525–30
(codified at 8 C.F.R. §§ 212.5, 236.3). The government
7
To be clear, we do not invalidate 45 C.F.R. § 410.810(a) to the
extent that it provides unaccompanied minors with the right to have “an
independent hearing officer employed by HHS determine, through a
written decision, whether the [minor] would present a risk of danger to
the community or risk of flight if released.”
FLORES V. ROSEN 33
contends that some of the provisions relating to the initial
apprehension and processing of minors mirror the
Agreement and should be allowed to take effect.
Specifically, the government points to 8 C.F.R. § 236.3(f),
regarding the transfer of unaccompanied minors from DHS
to HHS, and 8 C.F.R. § 236.3(g)(2), regarding DHS
custodial care immediately following apprehension. We
agree that these provisions are consistent with the
Agreement and may take effect. Compare 84 Fed. Reg.
at 44,526–27 (codified at 8 C.F.R. § 236.3(f), (g)(2)), with
Agreement ¶¶ 11, 12A, 25.
2. Care and custody of accompanied minors
The DHS regulations relating to the care and placement
of accompanied minors differ substantially 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 ICE itself.
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.” Flores I,
828 F.3d at 901.
Acknowledging that the DHS regulations are
inconsistent with the Agreement as we have interpreted it,
the government maintains that circumstances have changed,
and “applying [the Agreement] prospectively is no longer
equitable.” Fed. R. Civ. P. 60(b)(5). The government asserts
34 FLORES V. ROSEN
that the district court therefore abused its discretion in
declining to terminate the Agreement. 8
We first describe the inconsistencies between the DHS
regulations and the Agreement, and then address the
government’s changed circumstances arguments
a. Release of accompanied minors
Paragraphs 14 and 18 of the Agreement require the
prompt release of minors from government custody. The
Agreement provides that unless detention is “required either
to secure [a minor’s] timely appearance before the INS or
the immigration court, or to ensure the minor’s safety or that
of others, the INS shall release a minor from its custody
without unnecessary delay” to a ranked list of six potential
custodians, including family members and other designated
adults or entities. Agreement ¶ 14. If a minor is not released,
the INS “shall make and record the prompt and continuous
efforts on its part toward . . . the release of the minor
pursuant to Paragraph 14,” and those efforts “shall continue
so long as the minor is in INS custody.” Agreement ¶ 18.
Although DHS’s new regulations also state that “DHS
will make and record prompt and continuous efforts on its
part toward the release of [a] minor who is not [an
unaccompanied minor],” 84 Fed. Reg. at 44,529 (codified at
8 C.F.R. § 236.3(j)(1)), several provisions of the regulations
8
The government argues in the alternative that the Agreement
terminated by its own terms because the regulations are consistent with
the Agreement “except for a few minor differences.” Because we
conclude that the differences are substantial and affect the central
protections afforded by the Agreement, we reject the government’s
argument that the Agreement terminated by its own terms.
FLORES V. ROSEN 35
work together to reduce the circumstances in which
accompanied minors are released.
First, the regulations provide for mandatory detention of
accompanied minors in expedited removal proceedings,
unless release is “required to meet a medical emergency or
. . . necessary for a legitimate law enforcement objective.”
See id. at 44,525, 44,529 (codified at 8 C.F.R. §§ 212.5,
236.3(j)(2)) (applying parole standard in 8 C.F.R.
§§ 235.3(b)(2)(ii), (b)(4)(ii)). Under the Immigration and
Nationality Act (“the Act”), DHS is authorized to expedite
the removal of certain inadmissible individuals “without
further hearing or review unless” they indicate “either an
intention to apply for asylum . . . or a fear of persecution.”
8 U.S.C. § 1225(b)(1)(A)(i). The government maintains that
DHS’s new parole standard for accompanied minors in
expedited removal proceedings is “consistent with” the Act,
which provides generally that individuals in such
proceedings “shall be detained pending a final determination
of credible fear of persecution and, if found not to have such
a fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV).
As we have recognized, however, the Act’s “expedited
removal [process] does not require mandatory detention for
minors.” Flores v. Barr, 934 F.3d 910, 917 (9th Cir. 2019).
“[E]ven for noncitizens in expedited removal, ‘the Attorney
General may . . . in his discretion parole into the United
States temporarily’ any noncitizen applying for admission
‘under such conditions as he may prescribe.’” Id. (quoting
8 U.S.C. § 1182(d)(5)(A)). We therefore upheld as
consistent with the Act, and with DHS’s prior regulations
implementing the Act, the district court’s previous
conclusion that the Agreement “requires the government to
consider releasing [minors] subject to expedited removal.”
Id. at 916. Specifically, the district court held that the
36 FLORES V. ROSEN
“Agreement creates an affirmative obligation on the part of
[DHS] to individually assess each [minor’s] release . . . in
cases involving minors in expedited removal.” Flores v.
Sessions, 394 F. Supp. 3d 1041, 1066 (C.D. Cal. 2017). That
individualized assessment should consider, for example,
whether the minor presents a flight risk and whether a
suitable custodian is available. See id. at 1065–68. By
making parole categorically unavailable to accompanied
minors in expedited removal proceedings, except in the case
of a medical emergency or a law enforcement request, the
new parole standard undermines the Agreement’s release
mandate.
Second, in keeping with the decision not to make parole
available to accompanied minors in expedited removal
proceedings, the DHS regulations also deny bond hearings
to these same minors. 84 Fed. Reg. at 44,529 (codified at
8 C.F.R. § 236.3(m)); see id. at 44,394–95. As discussed
above, the right to have an independent adjudicator review
the government’s custody determinations is “a fundamental
protection” afforded by the Agreement. Flores II, 862 F.3d
at 867. Although Flores II addressed only unaccompanied
minors, as the government in that case did “not contest that
accompanied minors remain entitled to bond hearings,” id.
at 881 n.20, the Agreement provides that minors are entitled
to “a bond redetermination hearing . . . in every case,”
Agreement ¶ 24.A (emphasis added). The DHS regulations’
denial of bond hearings to accompanied minors in expedited
removal proceedings is inconsistent with the Agreement.
Finally, for accompanied minors in standard removal
proceedings, the new DHS regulations shrink the pool of
potential custodians to whom DHS is required to release a
minor who does not present a safety or flight risk. As noted
above, the Agreement requires release to one of a ranked list
FLORES V. ROSEN 37
of six possible custodians, including (1) a parent; (2) a legal
guardian; (3) another adult relative; (4) an adult or entity
designated by a parent or legal guardian; (5) a licensed
program willing to accept legal custody; or, (6) in the
absence of a likely alternative to long-term custody, another
adult or entity seeking custody. Agreement ¶ 14. The DHS
regulations, in contrast, require release only to a parent or a
legal guardian. 84 Fed. Reg. at 44,529 (codified at 8 C.F.R.
§ 236.3(j)(5)(i)). Release to another adult relative is not
“preclude[d]” by the regulations but would occur only in the
“unreviewable discretion of DHS.” Id. The remaining three
options for possible custodians listed in the Agreement do
not appear at all in the regulations. As a result, if an entire
family is in detention and DHS declines to release an adult
relative, then release of an accompanied minor is not an
option, in stark contrast to the Agreement’s release mandate.
b. Licensed facilities
The Agreement mandates that a minor who is not
released “shall be placed temporarily in a licensed program
until such time as release can be effected . . . or until the
minor’s immigration proceedings are concluded, whichever
occurs earlier.” Agreement ¶ 19. A “licensed program” is
one “licensed by an appropriate State agency to provide
residential, group, or foster care services for dependent
children,” and its facilities “shall be non-secure as required
under state law.” Id. ¶ 6.
In contrast, the DHS regulations define a licensed facility
as “an ICE detention facility that is licensed by the state,
county, or municipality in which it is located, if such a
licensing process exists.” 84 Fed. Reg. at 44,526 (codified at
8 C.F.R. § 236.3(b)(9)). But if a “licensing process for the
detention of minors accompanied by a parent or legal
guardian is not available . . . , DHS shall employ an entity
38 FLORES V. ROSEN
outside of DHS that has relevant audit experience to ensure
compliance with the family residential standards established
by ICE.” Id. The minimum standards set forth in the
regulations match the standards for licensed programs
prescribed by the Agreement. Compare id. at 44,528–29
(codified at 8 C.F.R. § 236.3(i)(4)), with Agreement ¶ 6 &
Ex. 1.
“[M]ost States do not offer a licensing program for
family unit detention”; currently, only Texas and
Pennsylvania do. 84 Fed. Reg. at 44,394, 44,419. The
regulations’ revised definition of “licensed facility” thus
greatly expands DHS’s ability to detain minors with their
accompanying adults.
Notably, the regulations expressly define a licensed
facility as a “detention facility,” as opposed to the group
homes contemplated by the Agreement. Compare id.
at 44,526 (codified at 8 C.F.R. § 236.3(b)(9)), with
Agreement ¶ 6. The HHS regulations applicable to
unaccompanied minors highlight the DHS regulations’
departure from the Agreement; the former explain that a
licensed program is “usually . . . an open setting, such as a
foster or group home, and not [a] detention facilit[y].”
84 Fed. Reg. at 44,535 (codified at 45 C.F.R.
§ 410.801(b)(2)).
In keeping with the DHS regulations’ conception of a
licensed facility as a detention facility, the regulations offer
the following definition of “non-secure,” in the event that
state law does not define that term: “a DHS facility shall be
deemed non-secure if egress from a portion of the facility’s
building is not prohibited through internal locks within the
building or exterior locks and egress from the facility’s
premises is not prohibited through secure fencing around the
perimeter of the building.” Id. at 44,526 (codified at 8 C.F.R.
FLORES V. ROSEN 39
§ 236.3(b)(11)). As Plaintiffs point out, this definition is
broad enough to cover a facility that prohibits egress from
its detention area through internal locks but has an unlocked
reception area on the public side of a sally gate. Although
the district court previously found that ICE’s family
residential center in Karnes, Texas, is a secure facility, see
Flores v. Johnson, 212 F. Supp. 3d 864, 879 (C.D. Cal.
2015), the government “maintains that its [family residential
centers] have been and continue to be non-secure,” 84 Fed.
Reg. at 44,443. 9
We might conclude that the regulations regarding
licensed facilities were consistent with the Agreement if they
simply allowed for the licensing of shelters or group homes,
similar to those contemplated by the Agreement, that
permitted the placement of parents and children together.
But that is not what the regulations do. The government’s
intent is not to place families together in “an open setting,”
id. at 44,535 (codified at 45 C.F.R. § 410.801(b)(2)), but to
“detain” them together for “enforcement” purposes, id. at
44,398, as discussed further below. We therefore conclude
that the new regulations regarding licensed facilities are
inconsistent with the Agreement.
c. Changed circumstances
Together, the DHS regulations regarding the release of
accompanied minors and the revised definition of “licensed
facility” dramatically increase the likelihood that
accompanied minors will remain in government detention
indefinitely, instead of being released while their
immigration proceedings are pending or housed in
9
DHS has committed to adding “additional points of egress” to the
Karnes facility. Id.
40 FLORES V. ROSEN
nonsecure, licensed facilities. Effecting this change was one
of the principal features of the Final Rule. The government
“strongly disagrees” with our holding in Flores I that “the
plain language of the Agreement clearly encompasses
accompanied minors,” 828 F.3d at 905 (cleaned up); 84 Fed.
Reg. at 44,393, and “maintains that the terms of the
[Agreement] were intended to apply only to those alien
children in custody who are unaccompanied,” 84 Fed. Reg
at 44,402. The preamble to the Final Rule explains that “by
modifying the literal text of the [Agreement] (to the extent it
has been interpreted to apply to accompanied minors) . . . to
reflect and respond to intervening statutory and operational
changes, DHS ensures that it retains discretion to detain
families . . . to meet its enforcement needs.” Id. at 44,398.
The government contends that the legal and factual
changes that guided its development of the Final Rule also
justify termination of the Agreement under Rule 60(b)(5). 10
When the government seeks to modify or terminate a
consent decree based on changed circumstances, it “must
establish that a significant change in facts or law warrants
revision of the decree and that the proposed modification is
suitably tailored to the changed circumstance.” Rufo v.
Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 393 (1992). “The
party seeking relief bears the burden of establishing that
changed circumstances warrant relief, but once a party
carries this burden, a court abuses its discretion ‘when it
refuses to modify an injunction or consent decree in light of
such changes.’” Horne v. Flores, 557 U.S. 433, 447 (2009)
(citation omitted) (quoting Agostini v. Felton, 521 U.S. 203,
10
We have already addressed the government’s request to terminate
the Agreement with respect to unaccompanied minors. See supra p. 32.
Here we address the government’s request to terminate the Agreement
based on changes relating to accompanied minors.
FLORES V. ROSEN 41
215 (1997)). Rufo’s standard is “flexible” because consent
decrees in “institutional reform litigation . . . reach beyond
the parties involved directly in the suit” and affect the
“public’s right to the sound and efficient operation of its
institutions.” 502 U.S. at 381 (cleaned up).
The government asserts that four changes justify
termination of the Agreement: (1) legislative changes,
(2) the Final Rule itself, (3) major shifts in migration
patterns, and (4) flaws in the certified class. We address each
in turn.
i. Legislative changes
The government contends that the Homeland Security
Act and the TVPRA significantly changed the legal
landscape, warranting termination of the Agreement. A
change in law may justify modifying or terminating a
consent decree if the new law makes complying with the
consent decree “impermissible,” or, on the other hand, if it
“make[s] legal what the decree was designed to prevent.”
Rufo, 502 U.S. at 388.
The government maintains that by codifying the
Agreement’s protections for unaccompanied minors,
Congress signaled it was leaving the treatment of
accompanied minors to DHS’s discretion. But we have
already held to the contrary. Flores I determined that the
“creation of statutory rights for unaccompanied minors does
not make application of the [Agreement] to accompanied
minors ‘impermissible.’” 828 F.3d at 910. As the
government does not otherwise argue that the statutes “make
legal what the decree was designed to prevent,” Rufo,
502 U.S. at 388, it has not demonstrated that the Homeland
Security Act and the TVPRA effected legal changes
warranting termination of the Agreement.
42 FLORES V. ROSEN
ii. The Final Rule
The government contends that the Final Rule is a
“fundamental change in law implementing the [Act] as well
as the goals of the Agreement,” justifying termination of the
Agreement under Rule 60(b). We reject the notion that the
executive branch of the government can unilaterally create
the change in law that it then offers as the reason it should
be excused from compliance with a consent decree. See
Nehmer v. U.S. Dep’t of Veterans Aff., 494 F.3d 846, 860
(9th Cir. 2007) (rejecting an agency’s attempt to avoid
complying with a consent decree by issuing a regulation
reinterpreting the decree). Although the Agreement itself
contemplates termination upon the promulgation of
consistent regulations, it certainly does not follow that the
executive branch retained the power to bring about
termination through the promulgation of inconsistent
regulations. The Final Rule is not a significant change
warranting termination of the Agreement.
iii. Shifts in migration patterns
The crux of the government’s changed circumstances
argument is that an unprecedented increase in the number of
minors arriving annually at U.S. borders warrants
termination of the Agreement. According to the government,
“irregular family migration” has increased by 33 times since
2013, and in 2019, more than 500,000 people traveling as
families reached the southwest border. A change in facts
may warrant modification of a consent decree “when
changed factual conditions make compliance with the decree
substantially more onerous,” the “decree proves to be
unworkable because of unforeseen obstacles,” or
“enforcement of the decree without modification would be
detrimental to the public interest.” Rufo, 502 U.S. at 384.
FLORES V. ROSEN 43
The government contends that the increase in family
migration, combined with the requirements of the
Agreement, has created practical problems for DHS. The
Final Rule explains that when DHS encounters a removable
adult traveling with his or her removable child, the
government has
three primary options for purposes of
immigration custody: (1) Release all family
members into the United States; (2) detain the
parent(s) or legal guardian(s) and either
release the juvenile to another parent or legal
guardian or transfer the juvenile to HHS as
[an unaccompanied minor]; or (3) detain the
family unit together as a family by placing
them at an appropriate [family detention
center] during their immigration proceedings.
84 Fed. Reg. at 44,403. The government views the first
option as problematic, both because it creates incentives for
bringing children on the dangerous journey to cross the
border and because many families released into the United
States fail to appear for their removal proceedings. Id.
at 44,403, 44,405. The second option, the government says,
“should be avoided when possible, and has generated
significant litigation.” Id. at 44,403.
The government prefers the third option. See id.
at 44,403. But the Agreement flatly precludes that approach.
The Agreement requires DHS (1) to release rather than
detain minors who do not present a safety or flight risk, as
long as a suitable custodian is available, and (2) to place
minors who are not released in a non-secure, state-licensed
facility. As noted above, most states do not license facilities
for holding families together, which has “severely limited”
44 FLORES V. ROSEN
the government’s “ability to maintain detention of families
together.” Id. at 44,405.
Again, if the only problem were a lack of licensed
facilities to hold accompanied minors who could not be
released, either because they presented a safety or flight risk
or because a suitable custodian was not available, then
modification of the Agreement would perhaps be warranted.
As the district court has observed, it may sometimes be “in
the best interests of an accompanied minor to remain with a
parent who is in detention.” Flores v. Sessions, 394 F. Supp.
3d at 1067. We have recognized that the Agreement “gave
inadequate attention” to the “housing of family units.”
Flores I, 828 F.3d at 906. To the extent the Agreement
precludes keeping parents and children together based solely
on a lack of state licensing schemes that the parties to the
Agreement may not have anticipated, then an appropriate
modification of the Agreement, permitting placement in
non-state-licensed facilities meeting specified standards,
might be justified.
But the government seeks a much more comprehensive
change. The DHS regulations jettison the Agreement’s
release mandate for accompanied minors except in narrow
circumstances. The government has not convincingly
explained why the increase in families arriving at the
southwest border requires DHS to detain instead of releasing
accompanied minors. As we held in Flores I, “even if the
parties did not anticipate an influx of this size, we cannot
fathom how a ‘suitably tailored’ response to the change in
circumstances would be to exempt an entire category of
migrants from the [Agreement], as opposed to, say, relaxing
certain requirements applicable to all migrants.” 828 F.3d at
910 (quoting Rufo, 502 U.S. at 383). The Final Rule takes
precisely the approach Flores I rejected: it retains the release
FLORES V. ROSEN 45
mandate for unaccompanied minors and largely erases it for
accompanied minors.
Although the Final Rule suggests the government must
detain families to ensure they appear for their immigration
hearings, the record casts doubt on that contention. Public
comments on the Final Rule highlighted the success of
DHS’s Family Case Management Program, “an alternative
to detention that use[d] case managers to ensure participants
compl[ied] with immigration obligations, such as check-ins
with [ICE] and attendance at immigration court hearings,
while allowing them to remain in their community as they
move[d] through immigration proceedings.” DHS Office of
Inspector General, Rep. No. OIG–18–22, U.S. Immigration
and Customs Enforcement’s Award of the Family Case
Management Program Contract 2 (2017), available at
https://www.oig.dhs.gov/sites/default/files/assets/2017-12/
OIG-18-22-Nov17.pdf (cited at 84 Fed. Reg. at 44,487 n.58).
“[P]articipants in the [Family Case Management Program]
had a 100 percent attendance record at court hearings and a
99 percent rate of check-ins and appointments with ICE.”
84 Fed. Reg. at 44,487. The Final Rule explains that the
program was discontinued in 2017 for cost reasons, while
acknowledging that the program was generally less
expensive than detention. Id. at 44,488.
Even if the government has legitimate justifications for
detaining adults, it has not shown why it must also detain
accompanying minors. For example, the government could
detain parents but release their children to another available
relative. The Final Rule suggests disingenuously that family
separation “has generated significant litigation,” 84 Fed.
Reg. at 44,403, but the litigation it cites relates to the
government’s recent practice of forcibly separating parents
and children, see Ms. L. v. ICE, 302 F. Supp. 3d 1149, 1154
46 FLORES V. ROSEN
(S.D. Cal. 2018). Nothing in the Agreement requires the
government to take children from their parents against the
parents’ will. The Agreement provides for the release of a
minor to an adult “brother, sister, aunt, uncle, or
grandparent” and, if none of those relatives are available,
provides a mechanism for parents to “designate” another
“adult individual or entity . . . as capable and willing to care
for the minor’s well-being.” Agreement ¶ 14C and D. Of
course, parents can waive their children’s right to release
under the Agreement. See supra p. 17.
The government has failed to demonstrate that the recent
increase in family migration has made complying with the
Agreement’s release mandate for accompanied minors
“substantially more onerous,” “unworkable,” or
“detrimental to the public interest.” Rufo, 502 U.S. at 384.
iv. The certified class
Finally, the government contends there are three flaws in
the certified class of Plaintiffs that constitute changed
circumstances warranting termination of the Agreement:
(1) the class is “too unwieldy for management in a single
litigation”; (2) the class includes accompanied minors but
not their parents; and (3) one of Plaintiffs’ counsel has a
conflict of interest because he operates a shelter for migrant
youth, including minors released under the Agreement.
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.” 828 F.3d at 908.
The government contends that the standards for class
certification have changed and would preclude certification
of the same class today. But the government cites no
authority supporting its suggestion that the evolution of Rule
23 standards warrants termination of a consent decree
FLORES V. ROSEN 47
concerning a previously certified class, particularly when the
government has never moved to decertify or modify the
class. The government has not carried its burden to establish
that the supposed flaws in the certified class constitute a
significant change warranting termination of the Agreement.
We are mindful of the reality that under certain
circumstances, it will be appropriate to amend or terminate
long-running consent decrees. See Horne, 557 U.S. at 447–
49. But the government has not shown that the district court
abused its discretion in denying termination in this
instance. 11
III.
The HHS regulations, as we have interpreted them, are
consistent with the Agreement and may take effect, with the
exception of 45 C.F.R. § 410.203(a)(5) and § 410.810(a) to
the extent it provides a bond hearing to unaccompanied
minors held in secure or staff-secure placements only if they
request one. Some of the DHS regulations regarding initial
apprehension and detention, specifically 8 C.F.R. § 236.3(f)
and (g)(2), are consistent with the Agreement and may take
effect. The remaining DHS regulations are inconsistent with
the Agreement, and the district court properly enjoined them
and the inconsistent HHS regulations from taking effect.
Additionally, the district court did not abuse its discretion in
denying the government’s motion to terminate the
11
The government also argues that the district court should have
terminated the Agreement because the government has “substantially
complied” with it. See Jeff D. v. Otter, 643 F.3d 278, 283–84 (9th Cir.
2011). The significant inconsistencies between the DHS regulations and
the Agreement detailed in this opinion preclude a finding of substantial
compliance.
48 FLORES V. ROSEN
Agreement. 12 The judgment of the district court is therefore
AFFIRMED in part and REVERSED in part.
12
As noted supra p. 32, the government may move to terminate
those parts of the Agreement that are covered by the valid portions of the
HHS regulations. Any motion to terminate the Agreement in part would
have to take into account our holding in Flores I that the Agreement
protects both unaccompanied and accompanied minors. See 828 F.3d
at 905–08.