Filed Date: July 11, 1985
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COVID-19 Summary: This is a very longstanding class action addressing appropriate treatment of noncitizen children in federal immigration custody. On March 26, 2020, plaintiffs filed an emergency motion seeking promptly release due to COVID-19 risks. On March 27, 2020, the court issued an order to the federal agencies detaining immigrant children to “make continuous efforts” to release the children from custody because of the risk posed to them by COVID-19 and to provide an accounting of their efforts to release those in custody by April 6. On April 24 the court issued an order requiring defendants to release children without unnecessary delay to eligible sponsors. On May 22, following interim reports from defendants, the court expressed concern with defendants' compliance and ordered enhanced monitoring and further status reports. The plaintiffs again sought to enforce the settlement on August 14, which was granted on September 4.
Note: We've tagged this case as one challenging President Trump's immigration executive orders because those executive orders and their implementing memoranda, included as "resources," below, touch on many of the matters subject to longstanding court oversight in this case.
On July 11, 1985, attorneys from the National Center for Immigrants' Rights, the National Center for Youth Law, and the ACLU Foundation of Southern California represented four minors who filed this class action complaint against the U.S. Attorney General, the Immigration and Naturalization Service (INS), its regional commissioner, and two private operators of INS detention facilities under 42 U.S.C. § 1983. The action, in the U.S. District Court for the Central District of California, presented a class-wide challenge to (a) INS policy to condition juveniles' release on bail on their parents' or legal guardians' surrendering to INS agents for interrogation and deportation; (b) the procedures employed by the INS in imposing a condition on juveniles' bail that their parents' or legal guardians' surrender to INS agents for interrogation and deportation; and (c) the conditions maintained by the INS in facilities where juveniles are incarcerated.
The challenged policy, under which the INS conditioned release of the administratively-arrested minors on the surrender of their parents or guardians for INS questioning or possible deportation proceedings was then-new; it had become effective on September 6, 1984, in the INS' Western Region. The plaintiffs noted that juveniles detained pending exclusion proceedings were eligible for bond without the bond eligibility condition that existed for juveniles detained pending deportation. The plaintiffs alleged that the new policy resulted in lengthy incarceration of juveniles in substandard conditions, without education, supervised recreation, or reasonable visitation opportunities; unreasonably subjected them to strip and body cavity searches; and served as a thinly-veiled device to apprehend the parents of the incarcerated juveniles and to punish children. The INS policy and the conditions of detention, according to the plaintiffs, violated (a) the INA, 8 U.S.C. sections 1101 et seq., including 8 U.S.C. section 1252(a)(2) and implementing regulations and Operating Instructions; (b) the Administrative Procedure Act, 5 U.S.C. sections 552 et seq., including 5 U.S.C. section 553(b)-(c); (c) the Due Process and Equal Protection Clauses of the Fifth Amendment; (d) the First Amendment and federal constitutional privacy rights; and (e) the 1967 Protocol Relating to the Status of Refugees, TIAS 6577, 19 U.S. 6223 [hereafter United Nations Protocol], and customary international law. The plaintiffs sought declaratory and injunctive relief, class action status, habeas corpus writs for themselves and members of their class to allow their release on bail, and an award of attorneys' fees and costs.
Pre-Settlement Agreement Proceedings
By November 30, 1987, the federal defendants and the plaintiffs entered into a memorandum of understanding to settle those aspects of the complaint alleging unlawful conditions of detention for the minors. The agreement established a network of community-based shelter care programs for minors held in INS custody.
Next, the aspect of the case alleging that the minors were unconstitutionally subjected to strip and body cavity searches came before the district court upon cross-motions for summary judgment. On March 7, 1988, District Judge Robert J. Kelleher ruled in the plaintiffs' favor. His opinion cited the lack of productive results from such strip searches and the failure of the defendants to establish a plausible, much less compelling, need for a blanket policy of searching minors in custody for administrative violations, rather than criminal offenses. Absent reasonable suspicion that a strip search would yield a weapon or contraband, Judge Kelleher said the practice violated the Fourth Amendment. Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988).
The INS had also moved for partial summary judgment regarding the plaintiffs' challenge to the bond condition. Judge Kelleher held that conditioning release, as alleged, did not violate federal statutory or international law, but deferred decision on the federal constitutional claims until further discovery had been completed. However, the judge later ruled that the bond release condition violated the Equal Protection clause since no rational reason existed for treating alien minors in deportation proceedings differently than those in exclusion proceedings. The INS subsequently published for comment a proposed regulation that allowed for release of detained minors on bond to the custody of certain adults, per an order of preference included in the regulation, unless the INS determined detention remained necessary to ensure the minor's appearance at INS proceedings or to ensure safety. The district court granted summary judgment to the plaintiffs, saying the new regulation, 8 C.F.R. § 242.24, constituted a due process violation. The district court's unpublished order invalidated the blanket detention of minors where a "responsible adult," albeit not a parent, relative, or legal guardian, could ensure the minor's attendance at the deportation hearing, and it required a hearing before a neutral and detached official in each case to determine whether release was appropriate and the conditions of release.
On appeal, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed, ruling the INS had the discretion under statutory law to issue the regulation and not limit release to merely ensuring a minor's appearance at proceedings. On the due process claim, the court said that even if a minor had a right to be released to an unrelated adult, that right was not fundamental, and was thus subject to reasonable restriction. Absent a fundamental right, minimum scrutiny of the regulation sufficed. The panel cited that both the plenary power of the U.S. to control its borders and the limited nature of juveniles' rights compared to adults’ rights warranted this result. Additionally, citing the civil nature of the proceedings, the court ruled that the procedural due process appropriate in criminal cases did not fully apply here. The panel opinion said the district court should, in assessing the INS procedures, balance the factors applicable in civil case due process settings (e.g., private interest, risk of erroneous deprivations, and governmental interest). Flores by Galvez-Maldonado v. Meese, 934 F.2d 998 (9th Cir. 1990).
Seeking rehearing en banc, the plaintiffs contended that the panel majority erred by failing to recognize their fundamental interest in liberty, and that no procedure other than an individual hearing before an independent officer could provide adequate protections for the right at stake. On August 9, 1991, the en banc Ninth Circuit held that the INS's blanket detention of children during the pendency of deportation proceedings was unconstitutional. The court said that illegal aliens had due process rights and that the INS had not shown that it had a need to impinge upon those rights in the manner it did. The court further found that the agency's judgment was not entitled to the usual deference accorded to administrative rulings since the interests of minors fell outside the agency's area of expertise. Consequently, the en banc court held that the INS’s policy was unconstitutional, and held in favor of the plaintiffs. Flores ex rel. Galvez-Maldonado v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc). The federal defendants' petition for certiorari, seeking Supreme Court review of the Ninth Circuit's opinion, was granted on March 2, 1992. Barr v. Flores, 503 U.S. 905 (1992).
The Supreme Court examined the language in the uniform deportation-exclusion rule, 8 C.F.R. § 242.24, in order to determine whether the ruling that alien juveniles should be released to responsible adults was correct. The court concluded that it was not. They held that the regulation accorded with both the Constitution and the relevant statute, which the court found gave the U.S. broad discretion to continue custody over arrested aliens. 8 U.S.C. § 1252. The court found that the detained minors, for whom the U.S. was responsible, had no fundamental right to be released to a private party when no parent, close relative, or legal guardian was available, and the regulation therefore did not violate their right to due process. The court further found that the earlier consent decree ensured placement of the juveniles in facilities providing appropriate care, making the regulation sufficient to dispense with individualized hearings on placement. Additionally, the court found that automatic review was not required by the due process clause, as INS procedures provided for a right to have deportability decisions reviewed, in a context where the juveniles were able to exercise that right intelligently. 8 U.S.C. § 1252. Reno v. Flores, 507 U.S. 292 (1993) (Scalia, J.).
After the case returned to the district court, the plaintiffs filed a motion in November 1993 to enforce the earlier consent decree regarding conditions of confinement. They argued that the decree had been violated in several respects, in that: (1) the detained minors were non-delinquent children forced to endure prison-like treatment and restraints on their liberty; (2) the class members were subject to inappropriate disciplinary practices and unofficial physical abuse; (3) the detained class lacked adequate education or reading materials; (4) the class members were also denied any adequate recreation; and (5) the INS did nothing to assist the minors to understand the proceedings against them. The plaintiffs sought an order barring the INS from incarcerating class members in juvenile halls and other facilities not licensed for the care of dependent minors or, alternatively, directing the INS to comply with specific state standards protecting nondelinquent minors, as well as those standards expressly set out in the decree. We do not have information on the resolution of this motion.
The Flores Settlement and Its Early Enforcement
In the late summer of 1996, the parties executed a comprehensive settlement of the case. Their Settlement Agreement set out nationwide policy for the detention, release, and treatment of minors in the custody of the INS. It superseded all previous INS policies inconsistent with the terms of the agreement, which would expire in 5 years (or earlier, with substantial compliance) and had monitoring, reporting, and enforcement provisions. The Agreement provided for payment to plaintiffs' counsel of $374,110.09 in full settlement of their attorneys' fees and costs claims.
The settlement resulted, among other things, in annual compliance reports filed with the court. The case docket shows that in December 2001, Judge Kelleher entered a stipulated order that the Agreement would terminate 45 days after defendants' publication of final regulations implementing the agreement. However, those regulations were never published, and so the Agreement remained in effect.
Over time, disputes surfaced. On November 14, 2005, the plaintiffs filed a motion to enforce the settlement. Years of discovery disputes and meetings with the court followed, with the parties finally amicably resolving their differences and a withdrawal of the enforcement motion on June 6, 2007.
Plaintiffs' 2015 Motion to Enforce the Settlement Agreement in Response to ICE's No-Release Policy
In the summer of 2014, a surge of Central American family migration led to numerous changes in policy by the Department of Homeland Security (DHS), including its subordinate agencies, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), which between them had succeeded INS as the relevant immigration agencies. ICE adopted a blanket policy to detain all female-headed families, including children, in secure facilities for the duration of the proceedings that determined whether they were entitled to remain in the United States.
On February 2, 2015, the plaintiffs filed a motion to enforce the settlement, arguing that this "no-release" policy violated the Agreement. More specifically, the plaintiffs challenged: (1) ICE's no-release policy, which the plaintiffs argued breached the Agreement's requirements that the U.S. minimize the detention of children and consider releasing class members to available custodians; (2) ICE's practice of confining children in secure, unlicensed facilities, which the plaintiffs argued breached the Agreement’s requirement that the U.S. hold class members that they do not release in facilities that are licensed to care for dependent minors; and (3) ICE's practice of exposing children in Border Patrol custody to "harsh, substandard" conditions and treatment, which the plaintiffs argued breached the Agreement’s requirement that the U.S. provide class members with a minimum level of care even while they await release or transfer to a licensed placement.
On February 27, 2015, DHS both opposed the motion to enforce and filed a motion to amend the Agreement, which the plaintiffs opposed. The case had since been assigned to Judge Dolly Gee, and after a hearing in April, Judge Gee decided for the plaintiffs in all respects. 212 F. Supp. 3d 864 (C.D. Cal. July 24, 2015). Pointing to the Settlement Agreement's text, she rejected the U.S.'s argument that the decree only protected unaccompanied minors (only minors apprehended with a female relative were covered by the challenged policies). She agreed with the plaintiffs that ICE's blanket no-release policy could not be reconciled with the Agreement's grant to class members of a right to preferential release to a parent—even though that meant that ICE would generally need to release the accompanying parent, as well, as long as doing so would not create a flight risk or a safety risk. Judge Gee further found that both the unlicensed and secure status of the family detention facilities were non-compliant with the consent decree. She held that the fact that no state agency existed to license these types of facilities, which housed families rather than just children, did not mean that the licensing requirement in the decree should be disregarded. Rather, the impossibility of licensure cut in favor of release.
In addition, Judge Gee explained that the U.S. violated the Agreement when it placed class members in Border Patrol holding cells for a few days, pending their transfer to family facilities: "It is true that the Agreement holds Defendants to a lower standard—'safe and sanitary'—with respect to the temporary holding cells. But Defendants have wholly failed to meet even that minimal standard." Id. at 881. Judge Gee rejected each of the U.S.'s arguments seeking amendment of the Decree based on purported changes in law and fact. These covered much of the same ground as the enforcement motion. Most importantly, the U.S. sought to exclude accompanied minors from the Decree's protections and to eliminate licensure requirements for family detention. The Court declined to amend the Decree.
Instead, the Court entered an Order to Show Cause, proposing significant remediation to bring the U.S. into compliance, and requiring full briefing on that proposal by mid-August. On August 21, 2015, the Court rejected the U.S.'s request that the court reconsider the remediation requirements. Judge Gee found that the U.S. had not demonstrated a material change in fact or law meriting a reconsideration. She ordered the U.S. to implement the following changes no later than October 23, 2015: (1) make and record prompt and continuous efforts toward family reunification and the release of class members; (2) unless otherwise required by the Agreement or law release class members without unnecessary delay to parents (including parents apprehended with class members) or other guardians in accordance with the Agreement; (3) refrain from detaining accompanied class members in facilities that were unlicensed or otherwise failed to meet the standards set forth in the Agreement; (4) release accompanying parents of class members in accordance with applicable laws; (5) monitor detention facilities to ensure that they meet the living conditions and other standards required by the Agreement; and (6) provide class counsel with collected statistical information on a monthly basis. 212 F. Supp. 3d 907 (C.D. Cal. Aug. 21, 2015).
On September 18, 2015, the U.S. appealed Judge Gee's holding that the Agreement applied to all minors in immigration custody, what they perceived to be her order to release the parents of minors, and her denial of their motion to modify the Agreement. On July 6, 2016, the Ninth Circuit affirmed the district court’s holding that the Agreement applied to accompanied minors and its denial of the U.S.'s motion to modify the Agreement. However, the Court of Appeals reversed Judge Gee's holding to the extent that it might create a new duty for the U.S. to release the parents of accompanied minors. 828 F.3d 898 (9th Cir. July 6, 2016). The judgment took effect on August 30, 2016. (Judge Gee later responded to the Ninth Circuit's holding by denying that she had intended to create affirmative rights for adults under the consent decree, and had merely intended to state that the U.S. should adhere to existing law and regulations in the Ninth Circuit on the subject of mandatory detention and bond hearings for detainees.)
Further proceedings continued in the district court, including a second motion to enforce that the plaintiffs filed on May 19, 2016. The plaintiffs alleged that the U.S., in defiance of Judge Gee's summer 2015 holding, was still holding members of the plaintiff class under conditions that violated the terms of the Agreement. They asked the Judge to issue an additional order requiring the U.S. to adhere to the terms of the Agreement, with the intention of making the U.S.'s obligations under the settlement Agreement more clear. They also asked for a special monitor to be appointed to oversee the U.S.'s compliance with the terms of the Agreement.
Court Order Mandating Compliance with Bond Hearing Provision of Settlement Agreement
During a July 22, 2016 status conference, Judge Gee gave the parties until August 19 to conduct additional settlement negotiations before Judge George H. King, the Chief Judge of the Central District of California. The parties had not reached a settlement by September 15, 2016. Judge Gee heard both oral argument and evidence on several dates that followed. After briefing, on January 20, 2017, Judge Gee issued an order that the defendants were in breach of the Flores Agreement by denying minors in removal proceedings the right to a bond redetermination hearing before an Immigration Judge in every case. Judge Gee disagreed with the defendants' argument that the 2002 Homeland Security Act (HSA) and 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) superseded the bond-hearing provision of the Agreement. Rather, Judge Gee agreed with the plaintiffs that savings clauses of these statutes preserved the relevant provision of the Agreement, which provided a right to bond hearings not addressed by the HSA or TVPRA. Consequently, Judge Gee granted the plaintiffs' motion to enforce HHS's compliance with the bond-hearing provision of the Flores Agreement. 392 F. Supp. 3d 1144 (C.D. Cal. Jan. 20, 2017).
On January 30, 2017, the Court held another evidentiary hearing on the plaintiffs' May 19, 2016 motion to enforce the Agreement. The plaintiffs argued that the defendants were not required to place class members in expedited removal proceedings or subject them to "mandatory detention," and that an expedited removal order was not a final order of deportation or exclusion.
In the meantime, on January 25, 2017, the defendants filed an application for a stay of the Court's January 20, 2017 order enforcing the bond-hearing provision of the Flores Agreement, pending appeal authorization. Judge Gee denied the stay on February 3, 2017. The defendants filed a notice of appeal on February 17, 2017, and sought an "emergency" stay pending resolution of the appeal from the Ninth Circuit. The defendants argued that by mandating bond hearings for unaccompanied immigrant minors in HHS custody, the district court's order infringed on HHS's statutory directive and implementing guidance, placed extra-statutory burdens on EOIR's Immigration Courts, and conflicted with BIA and Ninth Circuit precedent. The court's motions panel—Judges Clifton, Canby, and Friedland—granted the defendants' motion for a stay on February 24, 2017, expressing no view on the merits, but finding that the defendants had established a sufficient showing of irreparable harm to justify preservation of the status quo rather than immediate implementation of the order. The motions panel set a briefing schedule and calendared the case before a randomly selected panel in April 2017. Oral argument was held on April 18, 2017, before Circuit Judges Marsha Berzon, Stephen Reinhardt, and Wallace Tashima.
Back in the District Court, the plaintiffs filed a June 14, 2017 joint request for an order for their May 19, 2016 motion to enforce the Agreement. On June 27, 2017, Judge Gee issued an order, granting in part and denying in part the plaintiffs' motion. On the whole, Judge Gee found that the defendants were substantially non-compliant with many aspects of the Agreement. Specifically, the defendants had failed to ensure detainees' access to food, water, sanitation, temperature controls, sleeping conditions, and information about their legal rights. For minors specifically, the defendants had failed to make and record continuous efforts to release minors where possible, and to otherwise place them in secure licensed facilities. Judge Gee wrote: "Defendants entered into the Flores Agreement and now they do not want to perform—but want this Court to bless the breach. That is not how contracts work." 394 F. Supp. 3d 1041.
Judge Gee ordered the defendants to propose a Juvenile Coordinator to monitor the Agreement within 30 days. (This obligation had existed in the original Agreement but apparently no such person had ever been appointed.) Judge Gee specified that the Juvenile Coordinator would report periodically to the court, which would again assess the defendants' compliance after a year from the Coordinator's appointment. If progress was still insufficient at that point, the court would then consider the plaintiffs' request for an independent monitor.
In late July 2017, the defendants proposed Juvenile Coordinators, which Judge Gee approved on August 24. The Juvenile Coordinators submitted a proposal for how they would bring the Rio Grande Valley Sector CBP Stations into compliance with the Agreement. On October 18, Judge Gee set a schedule for future compliance status reports and the plaintiffs' responses; deciding to hold a June 29, 2018 status conference on whether the defendants were at that time in substantial compliance with the June 27, 2017 order.
On July 3, 2017, the Ninth Circuit lifted the stay of the district court's January 20, 2017 order (enforcing the Flores Agreement's provision mandating bond hearings for unaccompanied immigrant minors in HHS custody) pending appeal, effective immediately. The Court followed this with an opinion written by Judge Reinhardt, finding that neither the HSA nor TVPRA statutes had invalidated Paragraph 24A of the Agreement, which provides that a "minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge." Judge Reinhardt wrote:
Our reading of the statutes is dictated by the ordinary tenets of statutory construction. By their plain text, neither law explicitly terminates the bond-hearing requirement for unaccompanied minors. Moreover, the statutory framework enacted by the HSA and TVPRA does not grant ORR exclusive and autonomous control over the detention of unaccompanied minors. Rather, the statutes leave ample room for immigration judges to conduct bond hearings for these children. Additionally, holding that the HSA and TVPRA do not deny unaccompanied minors the right to a bond hearing under Paragraph 24A affirms Congress's intent in passing both laws. These statutes sought to protect a uniquely vulnerable population: unaccompanied children. In enacting the HSA and TVPRA, Congress desired to better provide for unaccompanied minors. Depriving these children of their existing right to a bond hearing is incompatible with such an aim.862 F.3d 863 (9th Cir. July 5, 2017).
The defendants did not file a petition for rehearing en banc. The Ninth Circuit's mandate came into effect on Sept. 28, 2017. The plaintiffs requested $448,540 in attorneys' fees in the Ninth Circuit on Nov. 1, 2017. However, on Jan. 9 the parties jointly asked the Court to stay the proceedings and place the matter in mediation; the Court did so on Jan. 16.
Back in the district court, on Aug. 28, 2017, the defendants appealed Judge Gee's June 27, 2017 order to enforce the Agreement. The Ninth Circuit opened a new appeals docket (No. 17-56297) the same day. The defendants filed their brief on Jan. 5, 2018. The Ninth Circuit set oral argument for the week of Dec. 10, 2018.
On Nov. 14, 2017, Judge Gee ordered the defendants to pay the plaintiffs $1,061,160.80 in attorneys' fees and $3,848.82 in costs and expenses. On Jan. 16, the defendants appealed this order to the Ninth Circuit, which opened a new appeals docket (No. 18-55063) the next day. However, the Ninth Circuit later closed the docket on Apr. 27 after the parties moved for voluntary dismissal.
Plaintiffs' 2018 Motion for Further Enforcement of the Agreement
On Apr. 16, 2018, in the district court, the plaintiffs moved to enforce the Agreement, and the defendants then filed an ex parte application seeking relief from the Agreement in the form of (1) exemption from the Agreement’s release provisions so that ICE could detain alien minors who had arrived with their parent or legal guardian together in ICE family residential facilities, and (2) exemption from the Agreement’s state licensure requirement. On July 9, 2018, the court denied such relief, holding that the request was a "thinly veiled motion for reconsideration" and that there was no "showing of changed circumstances that the parties could not have foreseen at the time of their Agreement." 2018 WL 4945000. The defendants appealed this decision to the Ninth Circuit, which in turn assigned the latest appeal case number, 18-56204.
Shortly after, on July 30, the district court granted in part and denied in part the plaintiffs' motion to enforce the Agreement. The court held that the plaintiffs sought procedural remedies not available in the Agreement but that they were "entitled to only such relief as is explicitly or implicitly authorized" in the Agreement. Ultimately, the court held that it had the authority to determine if the defendants had breached the Agreement. Accordingly, the court ordered the defendants to (1) transfer class members out of the Shiloh Treatment Center if they posed a risk of harm, (2) abandon unnecessary security measures at Shiloh and allow class members to make private phone calls, (3) provide notice of reasons for placement in secured facility, (4) take out of secured facilities class members who did not meet certain conditions, (5) comply with all Texas child welfare laws, (6) stop requiring ORR approval prior to release, and (7) stop requiring post-release services be in place prior to the release. 2018 WL 10162328.
Once again, the defendants appealed this decision to the Ninth Circuit, which assigned the appeal case number 18-56286. However, the Ninth Circuit later closed the docket on Mar. 22, 2019, after the defendants moved for voluntary dismissal.
On Oct. 10, 2018, the plaintiffs cross-appealed the July 30th decision to the Ninth Circuit to the extent that it denied the plaintiffs' motion to enforce the Agreement; the Ninth Circuit assigned the cross-appeal case number 18-56335. However, the Ninth Circuit later closed the docket on Apr. 1, 2019, after the plaintiffs moved for voluntary dismissal.
Due to the ongoing issues of non-compliance with the Agreement, Judge Gee also found it necessary to appoint an Independent Monitor to ensure compliance with the June 27, 2017, and July 30, 2018 orders (as well as other orders issued during the history of the case). On Oct. 5, 2018, the court appointed Andrea Sheridan Ordin as the Special Master/Independent Monitor ("the Monitor") of the Agreement. However, on Oct. 12 the defendants requested reconsideration of the appointment; the defendants were concerned that the order expanded the scope of the Monitor's oversight to include ORR's compliance with the July 30 order, which had found ORR in partial breach of the Agreement. On Nov. 5, the court denied the defendants' motion for reconsideration.
On Nov. 2, 2018, the plaintiffs gave notice that they would be filing another motion to enforce the Agreement, seeking a classwide order declaring the defendants in anticipatory breach of the Agreement, and enjoining the defendants from implementing a new regulation that they proposed on Sept. 7, 2018. That regulation, 83 Fed. Reg. 45486, sought to create a federal alternative to the Agreement's requirement that facilities be state-licensed, which would allow DHS to detain families together until immigration proceedings were completed. Where state licensing was unavailable, a family detention would still be considered "licensed" if DHS hired a third party to ensure compliance with ICE-established standards for family residential centers. The defendants claimed that these regulations would implement the Flores Agreement and thereby trigger the termination of the Agreement 45 days after publication, per the 2001 stipulation in the case.
On Nov. 21, Judge Gee deferred ruling on the plaintiffs' motion to enforce the Agreement until the defendants published the final regulations, finding that the plaintiffs would not suffer irreparable harm in the absence of injunctive relief because their motion prompted the defendants to affirm that they would not immediately implement the final rule. Once the final regulations were issued, both parties would file briefs with the court addressing the question of whether the regulations were consistent with the terms of the Flores Agreement.
Back on Nov. 13, the Ninth Circuit consolidated two of the defendants' appeals (17-56297 and 18-56204). Then, on Dec. 4, 2018, the defendants appealed the district court's Oct. 5 and Nov. 5 orders (relating to the appointment of the Monitor and the denial of the defendants' motion for reconsideration of the appointment, respectively). The Ninth Circuit assigned the appeal case number 18-56596. This appeal was voluntarily dismissed upon the motion of the government on May 22, 2019.
Plaintiffs' 2019 Motion to Enforce and Application for TRO in Response to Poor Conditions of Confinement
On June 26, 2019, plaintiffs filed an ex parte application for a temporary restraining order (TRO), alleging violations of the settlement agreement. The TRO demanded that the government remedy conditions amounting to a “public health emergency” at its El Paso and Rio Grande Valley CBP facilities. The District Court granted the TRO, ordering the government to immediately permit medical professionals and intensive case management teams access to the affected facilities and class members held therein. The following day the government filed its response, and on June 28, the District Court ordered the parties to participate in expedited mediation before the Monitor to remedy the conditions at issue. This matter remains subject to ongoing mediation.
The same day, the plaintiffs also filed a Motion to Enforce the Settlement Agreement. The motion alleged that the minors’ confinement at an unlicensed detention center in Homestead, Florida violated provisions of the settlement agreement. According to the plaintiffs, this practice resulted in the government routinely failing to, “expeditiously transfer minors to licensed[, non-secure] facilities,” regulated by child welfare and foster care authorities. Detention at Homestead purportedly resulted in detained children being held for periods of up to several months in prison-like conditions. Through this motion, the plaintiffs requested that the District Court order class members to be transferred to a licensed detention center within 14 days of arrival at the Homestead facility or released to a sponsor. On Aug. 2, 2019, the government responded by contending that the facility was not a “secure” juvenile detention facility per the terms of the agreement. The government argued that it was under no obligation to expeditiously transfer detained children to licensed facilities to conform to the terms of the settlement agreement.
On Aug. 15, 2019, the Ninth Circuit dismissed the defendants’ consolidated appeal (17-56297). In a panel decision authored by Judge Berzon, the Court held that the issues raised by the government were beyond its jurisdiction. The Court noted that the terms of the settlement agreement limited the scope of the Ninth Circuit’s review to modifications of the agreement. Flores v. Barr, 934 F.3d 910, 914 (9th Cir. 2019). Here, the Court held, the orders of the District Court properly enforced the terms of the agreement and did not alter its content.
Specifically, the Ninth Circuit held that the District Court’s order requiring that the government provide specific hygiene and sleeping arrangements was an interpretation of the agreement’s demand that minors be held in “safe and sanitary” conditions. Id. at 912. Further, the Ninth Circuit held that the District Court’s order that the government make and record efforts aimed at releasing class members subject to expedited removal was consistent with the INA and the Ninth Circuit’s prior interpretation that the Flores Settlement, “creates a presumption in favor of releasing minors.” Id. Last, the Ninth Circuit considered the District Court’s order that the detaining of minors in secure, unlicensed family detention centers was prohibited under the agreement. The Ninth Circuit rejected the government’s complaint as to this order, holding that the government failed to challenge the order until after its appeal had already been submitted. Id. at 914.
Plaintiffs' Motion to Enforce in Response to the Government's Final Rule and Notice of Termination of Settlement Agreement
On Aug. 23, 2019, the government issued a final rule in the Federal Register relating to the “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children,” which purported to constitute final regulations implementing the Flores Settlement. On Aug. 30 the government filed a notice of termination of the Agreement and a motion to the same effect. According to the government, the final rule satisfied the government’s obligation to publish regulations implementing the provisions of the settlement agreement. The government claimed that the final rule sufficiently addressed the “main substantive provisions of the Agreement” as to conditions of confinement and procedural rights owed to detained minors.
The same day, the plaintiffs filed a supplemental motion to enforce in response to the government’s issuance of the final rule. According to the plaintiffs, the final rule was in violation of the agreement’s mandate that, “[t]he final regulations shall not be inconsistent with the terms of th[e] Agreement.” They claimed that the rule: (1) permitted, “DHS to detain accompanied class members indefinitely;” (2) allowed, “DHS to detain children in secure facilities having no state license to house children;” (3) stripped, “children of their right to neutral and detached review of decisions of the Office of Refugee Resettlement […] to detain them in lieu of release to their parents and other available custodians;” and (4) replaced, “the Settlement’s mandatory and enforceable provisions with aspirational declarations of dubious force and effect.” The plaintiffs requested that the District Court order the defendants’ continued adherence with the Flores Settlement.
On Sept. 27, 2019, the District Court issued a permanent injunction denying the government’s motion to terminate the Settlement and enjoining its implementation of the new regulations. According to the Court, the final rule did not have the effect of terminating the agreement and the government had not established a valid alternative reason to terminate. Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal.). The District Court’s finding was based on various provisions of the final rule that were held not to conform to the Flores Agreement. These breaches concerned the fact that the final rule did not comport with the settlement agreement as to both its standards regarding acceptable conditions of confinement and its provisions ensuring appropriate oversight over the detention of minors. Further, the final rule failed to provide mandatory protections stipulated under the agreement and to follow criteria for determining when detention should be imposed on minors. Hence, the District Court granted the plaintiffs’ motion to enforce insofar as it sought to ensure the Flores Settlement would remain in effect.
On November 14, 2019, the government appealed the District Court’s permanent injunction to the Ninth Circuit. In its opening brief, the government argued that the district court failed to consider "dramatically changed circumstances," "including the promulgation of comprehensive new rules that the parties themselves envisioned as terminating the Agreement, statutes implementing much of the Agreement over a decade ago, and a crisis of irregular migration by families and children." Moreover, the government argued that the district court focused too heavily on the "outdated" decree and its history of compliance, rather than "evaluating the agencies chosen solutions" and the equities of the final rule going forward. The plaintiffs maintained that the district court did not abuse its discretion and that "the new regulations are inconsistent with the agreement and fail to trigger the agreement's sunset clause." The court vacated the scheduled oral argument in April due to the outbreak of COVID-19 and it has yet to be rescheduled.
On March 26, 2020, plaintiffs moved for a temporary restraining order (TRO) due to the nationwide outbreak of COVID-19. They sought an order to "promptly release children to available custodians, or if they are not entitled to release under Paragraph 14, to transfer them to non-congregate settings, or justify why it has done neither." The plaintiffs argued that COVID-19 threatened children and the unprecedented social distancing measures being enforced to combat the transmission of COVID-19 "are all but impossible for children held in congregate detention." The plaintiffs asserted that a TRO was appropriate because continued detention despite the risk posed by COVID-19 violated the plaintiffs' rights to prompt release and safe and sanitary conditions of confinement under the settlement agreement. In addition, the plaintiffs claimed that "increased risk of exposure to a deadly virus by virtue of placement in congregate detention facility for children who are neither flight risks nor a danger represents a paradigmatic example of imminent irreparable harm."
The next day the government filed its opposition to the application for TRO, arguing that the TRO should not be granted because the plaintiffs had not established that there had been any violations of the agreement, that the requested relief would "increase the risk of harm to class members in ICE and ORR custody by eliminating existing protections and creating confusion," and because "Plaintiffs’ proposed order would also have the Court order extensive procedural and coercive relief that is found nowhere within the four corners of the Agreement."
On the same day, Judge Gee issued an order granting in part and denying in part the plaintiffs' TRO application. Judge Gee declined to order an immediate release of all class members but concluded that "an orderly, yet prompt, disposition of minors’ claims of suitable placement is a responsible way to proceed." Judge Gee ordered that the government, by April 10, 2020, show cause why a permanent injunction should not issue requiring the government to make and record efforts to release class members and "enjoining Defendants from keeping minors who have suitable custodians in congregate custody." Moreover, Judge Gee ordered that ORR and ICE facilities make themselves available for inspection and provide an accounting of their efforts to release those in custody by April 6. Judge Gee found that plaintiffs demonstrated "serious questions as to the merits of their claim that ICE has breached the FSA with regard to the provision of safe and sanitary conditions and appropriate medical care and living accommodations in the context of the COVID-19 outbreak." Judge Gee also concluded that plaintiffs "have a strong likelihood of succeeding on their claim that both ICE and ORR have breached the FSA in their failure to release minors to suitable custodians in a prompt manner and to record their continuous efforts towards minors’ release."
On April 6, the defendants filed an opposition to the plaintiffs' motion for TRO, which acted as a show of cause as to why preliminary injunction should not be issued. The defendants asserted that a preliminary injunction should not be issued because the plaintiffs did not satisfy their burden of demonstrating that defendants had violated the Flores Agreement. Furthermore, the defendants contended that a preliminary injunction would hold the defendants to a requirement not found in the Flores Agreement, "that any ‘unexplained delay in releasing a child in ORR and ICE custody. violates  Paragraphs 14 and 18 of the FSA.’” In their reply to the defendants' opposition, the plaintiffs argued that requiring the defendants to share the efforts towards prompt and continuous release does not modify the terms of the Agreement. Moreover, the plaintiffs asserted that a preliminary injunction was appropriate because preliminary reports indicated that the TRO resulted in defendants releasing children without unnecessary delay.
In accordance with the TRO, defendants submitted spreadsheets with information about the class members, containing detail about each minor's circumstances and "detailed summaries of efforts to release the minors and reasons why the minors remained in custody." Defendants also submitted video tours of selected facilities and reports about steps taken and areas of improvement with regards to compliance with COVID-19 guidance. From this data, plaintiffs identified "several issues that may result in unnecessary delay of minors’ release in violation of the FSA." Plaintiffs also argued that ICE had not sufficiently implemented protective measures against COVID-19 and requested a preliminary injunction ordering defendants to "abide by the FSA and to continue to require, as an interim measure, that the agencies provide summaries of efforts towards family reunification or release of minors to the Monitor and Class Counsel."
In light of the materials submitted by the defendants and the questions raised by the plaintiffs, on April 10 Judge Gee issued an order extending the TRO by 14 days and required the defendants, by April 24, to show cause as to why a preliminary injunction should not be issued. Moreover, Judge Gee granted the defendants request to file a second supplemental response to plaintiffs' concerns about conditions at the facilities and their questions "regarding whether certain of their policies have caused unnecessary delay in the release of Class Members in violation of Paragraphs 14 and 18 of the FSA. Judge Gee ordered that defendants' second supplemental response be filed by April 17 and that Plaintiffs may file their reply by April 22.
After monthlong briefing, on April 24, Judge Gee issued an order granting in part and denying in part the plaintiffs' request for enforcement of the FSA. 2020 WL 2758792. Judge Gee ordered defendants to "continue to make every effort to promptly and safely release Class members who have suitable custodians." Judge Gee also found that because the COVID-19 pandemic made fingerprint checks difficult to obtain, defendants' requirement of a fingerprint-based check violated the FSA. Judge Gee also ordered that ORR and ICE Juvenile Coordinators submit monthly reports documenting their compliance with the court's order. Following this order, ICE and ORR coordinators filed interim reports on May 15. Plaintiffs filed responses to each report, identifying deficiencies and raising concerns about defendants' compliance with the FSA, CDC guidance, and court orders.
On May 22, Judge Gee issued an order about the updated juvenile coordinator reports, highlighting deficiencies with defendants' compliance. 2020 WL 2758795. Judge Gee stated that "[c]ontrary to the April 24, 2020 Order, ORR has not provisionally released any minors whose vetted sponsor are unable to obtain fingerprints due to pandemic-related closures." Judge Gee ordered the provisional release of one minor whose release has been delayed due to fingerprinting. Judge Gee also found that ICE's report "continues to show lack of compliance with Paragraph 18 of the FSA, which requires Defendants to 'make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor." Finally, Judge Gee expressed concern with the implementation of public health guidances at the FRCs. The order required defendants to file updated reports by June 8 and the parties to confer regarding appropriate protocols to inform detained guardians about their children’s rights under the FSA.
The defendants appealed the April 24 order to the Ninth Circuit on June 23.
On June 25, ALDEA - The People’s Justice Center, Proyecto Dilley, and the Refugee and Immigrant Center for Education and Legal Services submitted an amicus brief in support of the plaintiffs, arguing that the court's intervention is needed as ICE continues to violate the FSA and the April 24 and May 22 orders.
A status conference was held on June 26. The court recognized that while there was progress made from the defendant's side, there was an increase of COVID-19 cases in their facilities and there are potential issues of non-compliance raised by the plaintiffs, the amicus brief, and the independent monitor. Therefore, the ICE was ordered to transfer the class members who have resided at the FRCs for more than 20 days to non-congregate settings by July 17 and to urgently enforce its existing COVID-19 protocols. Further, the parties were directed to file a joint status report regarding the outcome of their efforts to meet and confer.
On July 8, the parties submitted a joint status report, the defendants objected to the court's prohibition on the transfer of minors in ICE juvenile detention to adult facilities when they age out of juvenile detention, and stated their intent to bring a motion asking the court to lift this prohibition. The plaintiffs stated their intent to oppose such motions, arguing that the health situation at the Northwest ICE Processing Center where the remaining two minors would likely be transferred, is described as a “tinderbox” where COVID will spread rapidly to detainees. The other minor plaintiff was to be released.
On July 20, three Flores Class Members who were detained by ICE together with their parents sought to intervene. The defendants opposed, arguing that they are already represented by class counsel in this matter. On July 21, the defendants appealed the May 22 order to the Ninth Circuit.
The monitor's July 22 Report on the Use of Temporary Housing for Minors and Families under Title 42 noted that the temporary housing program has been transformed by the Title 42 expulsion policies into an integral component of the immigration detention system for UACs in U.S. custody. The monitor recommended the expulsion of all UACs, particularly those below the age of 15 years, from the current temporary housing program, as the temporary housing program was not constructed to serve as a major detention system to care for large numbers of young children for protracted periods of time and it a COVID-19 outbreak is also likely.
The defendants sought to stay the case pending a decision on the motion to intervene on July 23, which was denied two days later. On July 29, the court denied the intervention.
On August 6, the Refugee and Immigrant Center for Education and Legal Services
(RAICES), Proyecto Dilley, and Aldea - the People’s Justice Center filed an amicus brief in support of the plaintiffs. They claimed that the ICE continues to fail to conduct individualized custody determinations or make and record continuous efforts at prompt release, and that COVID-19 outbreaks continue to grow at Karnes and Dilley because of this failure.
The plaintiffs filed two motions to enforce the settlement on August 14. The plaintiffs argued that the current administration substantially restricted its asylum policies and the defendants are no longer in compliance with the FSA because ICE fails to provide advisals to parents regarding their children’s release rights or to adopt release procedures. The plaintiffs requested the court order ICE adopt advisals of rights and procedures to release class members. The plaintiffs also argued that ICE's history of failing to comply with the FSA warrants a finding of contempt. In the second motion, the plaintiffs argued that the defendants were placing children in hotels and unlicensed placements for weeks at time before expelling them pursuant to the COVID-19 border closure. The settlement agreement required that children must be placed in non-secure facilities licensed to care for dependent minors.
The defendants appealed the June 26 order to the Ninth Circuit on August 24.
On August 28, Aldea The People's Justice Center, Proyecto Dilley, and The Refugee and Immigrant Center for Education and Legal Services filed an amicus brief in support of the plaintiffs. Three days later, Human Rights Watch and Amnesty International USA sought to file amicus briefs in support of the plaintiffs' motion to enforce the settlement.
The court granted the plaintiff's motion to enforce the settlement regarding ICE’s placing of children in hotels and unlicensed facilities on September 4. 2020 WL 5491445. The other motion to enforce the settlement filed on August 14 remained pending. Judge Gee ordered the defendants to cease placing minors at hotels and to transfer all minors currently held in hotels to licensed facilities. The defendants appealed the order, and moved for a temporary administrative stay and a stay pending appeal.
The administrative stay was granted by the Ninth Circuit on September 13, however, the stay of the order was denied on September 16, reasoning that the district court is familiar with the detention conditions of immigrant children in facilities administered by the DHS and HHS, and therefore the defendants should first bring their request for a stay to the district court. The same day, the defendants moved to stay September 4 order the pending appeal, which the district court denied on September 21. 2020 WL 5666550. The district court ordered the September 4th Order to be effective as of September 28. On September 28, DHS was to cease placing minors at hotels. However, they were permitted to implement brief hotel stays as necessary and in good faith for not more than 72 hours. Again, the defendants renewed their emergency motion for a temporary administrative stay and a stay pending appeal to the Ninth Circuit. The Ninth Circuit granted a temporary administrative stay, but then denied the emergency motion for a stay on October 4. 977 F.3d 742. The defendants appealed the denial of the stay to the Ninth Circuit on October 15.
On September 18, Judge Gee granted in part the plaintiffs’ other motion to enforce the settlement agreement regarding the defendants’ failure to provide advisals of rights to class members and their parents. Judge Gee ordered ICE to disseminate a notice of rights as revised by the court and to issue an updated policy or instruction regarding the settlement to its employees. The court denied the plaintiffs’ motion to the extent it sought to provide a specific release protocol to ICE employees or release decision worksheet to class members and parents. The plaintiffs, defendants, and amicus parties (Aldea, The People’s Justice Center, Human Rights Watch, Amnesty International, Proyecto Dilley, RAICES) each filed comments on the proposed procedures and advisal notice. The court made revisions to the draft notice of rights and the ICE directive to employees. The parties are to attempt to finalize the documents and file a joint status report by November 30, 2020.
On October 16, 2020, the defendants filed a motion to terminate a transfer restriction contained in the June 26 order which prohibited ICE from transferring into an adult detention facility, a minor who ages out of an ICE juvenile detention facility.
More coming soon.
Mike Fagan (7/2/2008)
Sarah Prout (9/17/2015)
Ryan Berry (8/9/2016)
Ava Morgenstern (5/5/2018)
Aaron Gurley (5/27/2020)
Averyn Lee (9/22/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4145012/parties/jenny-l-flores-v-edwin-meese/
Adams, Crystal (District of Columbia)
Adamson, Melissa Ann (California)
Abrams, William F. (California)
Alexander, Sarah Pascal (California)
Alvarez-Jones, Stephanie (Texas)
Berzon, Marsha Siegel (California)
Blackmun, Harry Andrew (District of Columbia)
Brunetti, Melvin T. (Nevada)
Canby, William Cameron Jr. (Arizona)
Fletcher, Betty Binns (Washington)
Gee, Dolly Maizie (California)
George, Lloyd D. (Nevada)
Kelleher, Robert Joseph (California)
Leavy, Edward (Oregon)
Nelson, Dorothy Wright (California)
Norris, William Albert (California)
O'Connor, Sandra Day (District of Columbia)
Otero, S. James (California)
Rehnquist, William Hubbs (District of Columbia)
Reinhardt, Stephen Roy (California)
Rosenberg, Alicia G. (California)
Rymer, Pamela Ann (California)
Scalia, Antonin (District of Columbia)
Schroeder, Mary Murphy (Arizona)
Smith, Milan Dale Jr. (California)
Souter, David Hackett (District of Columbia)
Standish, Gail J. (California)
Tang, Thomas (Arizona)
Tashima, Atsushi Wallace (California)
Thomas, Clarence (District of Columbia)
Thompson, Bruce Rutherford (Nevada)
Wallace, John Clifford (California)
White, Byron Raymond (District of Columbia)
Wiggins, Charles Edward (California)
See docket on RECAP: https://www.courtlistener.com/docket/4145012/jenny-l-flores-v-edwin-meese/
Last updated Nov. 23, 2023, 3:17 a.m.
State / Territory: California
Filing Date: July 11, 1985
Case Ongoing: Yes
All minors apprehended by the INS (predecessor to DHS) in the Western Region of the United States
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: 1065009.62
Order Duration: 1997 - None
Content of Injunction:
Jails, Prisons, Detention Centers, and Other Institutions:
Type of Facility: