RE: Flores v. Lynch
July 6, 2016
Hurwitz, Circuit Court
Opinion
In 1997, the plaintiff class “Flores” and the government entered into a Settlement agreement, which set out a nationwide policy regarding the detention and release of minors in INS custody. The Settlement creates a presumption for release. For those minors who are not released, the settlement creates detention standards concerning facilities and conditions.
Due to an increase in the number of Central Americans trying to enter through the border in 2014, the Obama administration opened up family detention centers in Texas and New Mexico. The conditions and policies in these centers did not comply with the Settlement. The government contends that there is no violation because the Settlement only applies to unaccompanied minors, not the minorsin these centers who are accompanied by their families.
In 2015 Flores sought to enforce the settlement. The question is whether the Settlement applies to all minors or just those that are unaccompanied. The district court sided with Flores stating that the Settlement included all minors and rejected the government’s request to modify the Settlement. The government appealed. The standing court order from the district court is:
1) Make ‘prompt and continuous efforts towards family reunification,’ 2) release class members without unnecessary delay, 3) detain class members in appropriate facilities, 4) release an accompanying parent when releasing a child unless the parent is subject to mandatory detention or poses a safety risk or a significant flight risk, 5) monitor compliance with detention conditions, and 6) provide class counsel with monthly statistical information.Flores v. Lynch, No. 15-56434, 2016 WL 3670046 (9th Cir. July 6, 2016).
Background
The western region of the INS adopted a policy limiting the release of minors to parents or lawful guardians in 1984. The year after, Flores challenged this policy and the conditions under which juveniles were detained. Two classes were certified in 1986 as a result. The first, all persons under the age of 18 who have been, are, or will be arrested by INS and will be denied release because a parent or guardian cannot pick them up to take custody. The second, all persons under the age of 18 who have been, are, or will be arrested by INS and will be subjected to inadequate conditions while detained.
The district court granted Flores partial summary judgment on the claim that INS treated minors in deportation differently from those in exclusion proceedings. INS released children in exclusion to others besides their parents, while children in deportation proceedings could only be released to their parents. The rule allowed INS the discretion to release a child to a parent, other relative, or other guardian. If none of these options are available there is authority to release a detained adult with the minor.
In 1997 the district court approved the settlement, which defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Settlement ¶ 4. Exception for this is emancipated minors, and minors who have been incarcerated due to a conviction for a crime as an adult. The class includes all minors.
Once children are in custody as per the settlement, the government must process the minor and shall provide the minor with a notice of rights as soon as possible. The minors shall be kept in proper facilities consistent with their vulnerabilities. INS has five days to transfer a minor to a non-secure licensed facility. If there is high volume of detainees, INS just needs to process the transfers as expeditiously as possible.
The settlement also creates a presumption in favor of release and is for family reunification. Unless there are security risks, safety risks, or flight risks the minor should be released without delay. A minor can be released to a: parent, legal guardian, an adult relative, an adult individual designated by parent, a licensed program, and an adult or entity seeking custody.
If no release then INS has to put a minor in a licensed program for dependent children. This facility needs to be “non-secure” and meet the standards of the settlement. Some minors can be held in juvenile detention facilities instead if they have committed crimes.
In 2001 due to national security issues families began getting detained instead of released. In 2001 the first family facility was opened. In 2002 INS was eliminated and their responsibilities were transferred to DHS which houses ICE, but unaccompanied minor care was transferred to ORR of HHS under 6 U.S.C. § 279(2), (b)(1)(A), (g)(2). In 2007, a new family facility was opened in Taylor, Texas. Three children fell under Flores and stated that the conditions of the Texas facility violated the settlement. The government contends that the settlement only applies to unaccompanied minors. The district court found that the settlement applies to all minors in ICE custody, not just those with unaccompanied status. The Texas facility did in fact violate the rights of those minors according to the Flores Settlement, but the contention that parents should be released with children whose rights were violated was not accepted. In 2008, congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. The TVPRA partially codified the settlement by creating certain standards for the treatment of unaccompanied minors. 8 U.S.C. § 1232(c)(2)(A) states that unaccompanied minors should be “promptly placed in the least restrictive setting that is in the best interest of the child.” Flight and danger risks of each minor are taken into consideration.
In 2014, a surge of undocumented Central Americans arrived at the US-Mexico border. ICE opened three more family detention centers as a result. These detention centers operate under ICE’s residential Detention Standards, which violates the settlement. In January 2015, a group of Central American migrants not represented by Flores counsel but who fall under the Settlement class filed a class action challenging on due process grounds the no-release policy as to Central American families.
On February 2, 2015, Flores filed a motion in the U.S. District Court for the Central District of California to enforce the settlement because ICE adopted a no-release policy, and they confined children in secure, unlicensed facilities at Dilley and Karnes. The government argued that Flores is inapplicable to accompanied minors. The district court granted the Flores challenge and stated that the settlement applied to all minors regardless of unaccompanied status, and an accompanying parent should be released with the minor if no flight or safety risk exist. The government appealed this decision and this court has jurisdiction to review under 28 U.S.C. §1292.
Discussion
- The Settlement applies to accompanied minors
Based on plain language the settlement clearly applies to all minors not just those that are considered unaccompanied. Minor is defined as “ any person under the age of eighteen years who is detained in the legal custody of the INS.” The scope is “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” The applicable class is “ all minors who are detained in the legal custody of the INS.” Settlement ¶¶ 4,9,10. The agreement excludes emancipated minors or minors who have been convicted as adults. If there was intent to exclude accompanied minors than that would have been stated in the Settlementunder the “exceptions to applicability” category. The government argues that the agreement can only cover unaccompanied minors because the Settlement defines licensed program as “ any program, agency or organization that is licensed by an appropriate state agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs minors.” Settlement ¶6.With this definition the government argues that only dependent minors are eligible, effectively excluding accompanied minors. This court rejects this argument because while a program may be tailored for dependent childrenotherminors can still be placed in those programs.
The settlement did not foresee the issue of family detention arising and does not address it but the same standards for children in ICE custody should be applicable across the board. Furthermore, “the government has not explained why the detention claims would exclude accompanied minors; minors who arrive with their parents are as desirous of education and recreation, and as averse to strip searches, as those who come alone.” Flores v. Lynch, No. 15-56434, 2016 WL 3670046, at *7 (9th Cir. July 6, 2016). The Settlement unambiguously applies to accompanied minors.
II. The Settlement does not require the government to release parents
Initially Flores sought to enforce rights of minors based on the settlement by allowing the custody determination of a parent if they were in custody and that was the only obstacle to the release of a minor. According to Flores, ideally a parent should be able to be released with a minor if a guardian is necessary. In effect providing preferential release to parents of minors in the class specified by Flores. The district court sided with Flores stating that parents of minors within the Flores class should receive preferential release the caveat being that the parent could not be a safety or a flight risk.It should be noted that parents generally are not part of the certified class in the Flores settlement and thus cannot be granted preferential determinations as a way of enforcing the settlement, thus the district court erred.
III.The District Court correctly denied the government's motion to amend the settlement
The government argues that there are no longer sufficient equities in enforcing the Flores settlement in its current state, it should be amended.
The government’s first argument is that due to new circumstances consisting of a surge in migrants within the Flores class, the Settlement should not be valid in its current state. The Settlement is still valid if the changes that occurred were foreseeable at the time the Settlement became effective. The influx was foreseeable, the settlement states thatan influx in migrants means that more time will be allotted for the government to place the minors.
Additionally, the government also contends that the laws have changed drastically since the settlement, and INS is no longer responsible for these minors, DHS is. Thus this agreement should no longer be valid in its current state. This court finds that regardless of those changes this agreement can still be honored in its current state.
Lastly, the government argues that Flores cannot be honored because it conflicts with the TVPRA. Perhaps those differences could be addressed but the statutory rightsthat Flores created for unaccompanied minors as class members does not make the application of the settlement to accompanied minors impermissible. This court upholds the district court's decision to deny the motion to amend.
Conclusion
The case holds three things. The first, that the settlement applies to accompanied minors. Secondly, the Settlement does not require the release of an accompanying parent even if there is no one else the minor could be released to.Third, the Settlement should not be amended.
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