Flores v. Barr
| Decision Date | 04 September 2020 |
| Docket Number | Case No. CV 85-4544-DMG (AGRx) |
| Court | U.S. District Court — Central District of California |
| Parties | Jenny L. Flores, et al. v. William P. Barr, et al. |
CIVIL MINUTES—GENERAL
Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
KANE TIEN
Deputy Clerk
NOT REPORTED
Court Reporter
Attorneys Present for Plaintiff(s)
None Present
Attorneys Present for Defendant(s)
Proceedings: IN CHAMBERS—ORDER RE PLAINTIFFS' MOTION TO ENFORCE SETTLEMENT AS TO "TITLE 42" CLASS MEMBERS [920]
On August 14, 2020, Plaintiffs filed a motion to enforce the Flores Settlement Agreement ("FSA" or "Agreement") with respect to Class Members detained in hotels pending expulsion pursuant to 42 U.S.C. section 265 ("Title 42"). [Doc. # 920.] In particular, Plaintiffs argue that (1) minors detained by the Department of Homeland Security ("DHS") under the direction of a Title 42 order by the Centers for Disease Control and Prevention ("CDC") are Class Members within the scope of the Flores Agreement, and (2) holding such Class Members in unlicensed hotels for prolonged periods violates the Agreement. Plaintiffs therefore ask the Court to order DHS to stop detaining minors in hotels and to comply with the Agreement with respect to the placement of Class Members. Defendants maintain that the Court lacks jurisdiction to issue such an order because these minors are not Class Members, and in any event, detaining them in hotels does not violate the Agreement. The motion has been fully briefed. [Doc. ## 925, 960.] The Court held a hearing on the motion on September 4, 2020.
Having duly considered the parties' written submissions and oral argument, the Court GRANTS Plaintiffs' Motion to Enforce for the reasons stated below. The Court has jurisdiction over this matter and orders DHS to end its practice of detaining Class Members in hotels. DHS cannot evade its obligations under the Flores Agreement by hiding behind a different statute while exercising unfettered discretion over the minors within its care.
On January 28, 1997, this Court approved the Flores Agreement—a class action settlement—between Plaintiffs and the federal government. See Flores v. Sessions, 862 F.3d 863, 866 (9th Cir. 2017). At the time, the Immigration and Naturalization Service ("INS") was the primary agency tasked with enforcing the nation's immigration laws, principally the Immigration and Nationality Act, also known as Title 8. It was the INS's conduct that was at issue in the Flores litigation, as memorialized in the Agreement's class definition: "All minors who are detained in the legal custody of the INS." FSA at ¶ 10 [Doc. # 101].
In 2002, Congress passed the Homeland Security Act, which abolished the INS and transferred its functions to various agencies within the newly created DHS, as well as to the Office of Refugee Resettlement ("ORR"), an agency within the Department of Health and Human Services ("HHS"). 6 U.S.C. §§ 251, 279, 291. Also transferred to DHS were the functions of the former U.S. Customs Service, which had been a part of the Treasury Department. Id. at § 203(1). The immigration and customs security and enforcement-related functions were comingled and vested into two agencies within DHS: Customs and Border Protection ("CBP") and Immigration and Customs Enforcement ("ICE"). See 6 U.S.C. § 211; id. at § 252 (establishing the Bureau of Border Security); H.R. Doc. No. 108-32, at 1 ().
The Flores Agreement is binding upon the named Defendants and their "agents, employees, contractors and/or successors in office." FSA at ¶ 1. Consequently, after the reorganization of the INS, its "obligations under the Agreement now apply to the Department of Homeland Security and the Department of Health and Human Services." Flores v. Barr, 934 F.3d 910, 912 n.2 (9th Cir. 2019).
On March 20, 2020, CDC, a subagency of HHS, issued an order closing the United States' borders with Mexico and Canada to certain persons in response to the COVID-19 pandemic. See Order Suspending Introduction of Certain Persons from Countries where a Communicable Disease Exists, 85 Fed. Reg. 17,060 (Mar. 26, 2020) (effective March 20, 2020) ("Closure Order"). The Closure Order called for covered persons to be removed from the United States and returned to their country of origin, or another practicable location, as rapidly as possible. Id. at 17,067. It applied to "persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry (POE) or Border Patrol station at or near the United States borders with Canada and Mexico," and exempted U.S. citizens, permanent residents, and those with valid travel documents or subject to the visa waiver program, among others. Id. at 17,061. The Closure Order was issued pursuant to HHS's authority under 42 U.S.C. sections 265 and 268. Enacted in 1944, the relevant section of Title 42 states:
Whenever [the Secretary of HHS] determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the [Secretary], in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.
42 U.S.C. § 265. The Closure Order noted the "serious danger" of COVID-19 entering the United States through land Ports of Entry and Border Patrol Stations operated by CBP. 85 Fed. Reg. at 17,061. The Order "requested that DHS implement this order because CDC does not have the capability, resources, or personnel needed to do so." Id. at 17,067. The Closure Order has since been extended twice, the second time indefinitely. See Extension of Order Suspending Introduction of Certain Persons from Countries where a Communicable Disease Exists, 85 Fed. Reg. 22,424 (Apr. 22, 2020) (effective April 20, 2020); Amendment and Extension of Order Suspending Introduction of Certain Persons from Countries where a Communicable Disease Exists, 85 Fed. Reg. 31,503 (May 26, 2020) (effective May 21, 2020).
On July 22, 2020, the Independent Monitor, Andrea Ordin, and Special Expert, Dr. Paul H. Wise, filed an Interim Report on the Use of Temporary Housing for Minors and Families Under Title 42 ("July 22 Interim Report") [Doc. # 873], alerting the Court to DHS's practice of using hotels to temporarily house accompanied and unaccompanied minors pending their expulsion under Title 42, routinely for multiple days. Id. at 11.1 On August 7, 2020, the Court determined the issue of "hoteling" to be beyond the scope of prior briefing and ordered the Plaintiffs to file a motion to enforce on an expedited briefing schedule. [Doc. # 914.] In the same Order, the Court directed the Independent Monitor to continue observing and reporting on Title 42 hoteling. On August 26, 2020, the Monitor filed another Interim Report, finding that 25 hotels across three states have been used to house 660 minors between the ages of 10 and 17, 577 of whom were unaccompanied. August 26 Interim Report at 12, 15 [Doc. # 938]. Of the unaccompanied minors, 126 (26%) were under 15 years of age. Id. at 15. On average, minors are housed in hotels for just under five days, though 25% have been held for more than 10 days,with a maximum stay of 28 days. Id. at 16; Supplemental Harper Decl. at ¶ 6 [Doc. # 970].2 The hoteling program is operated by ICE and its contractor, MVM, Inc. ("MVM"). July 22 Interim Report at 11. It has rapidly expanded since the Closure Order was first issued, becoming a full-scale detention operation for minors and families immediately preceding their expulsion under Title 42. See id.; August 26 Interim Report at 12. The Independent Monitor recommended that unaccompanied minors be excluded from the hoteling program, finding there to be "no assurance that the [hoteling program] can provide adequate custodial care for single minors." August 26 Interim Report at 21.3
The Court incorporates the legal standard for motions to enforce articulated in its July 24, 2015 and June 27, 2017 Orders and need not repeat it here. See Flores v. Johnson, 212 F. Supp. 3d 864, 869-70 (C.D. Cal. 2015); Flores v. Sessions, 394 F. Supp. 3d 1041, 1048-50 (C.D. Cal. 2017).
As a preliminary matter, the Court makes clear what is not at issue in this case—the validity of Title 42 expulsions. Much as an examination of the legal underpinning of the Migrant Protection Protocols ("MPP"), also known as the "Remain in Mexico" policy, is outside the purview of the Flores Agreement, so too is Defendants' policy of expelling minors pursuant to Title 42. See April 24, 2020 Order at 13 [Doc. # 784].
The sole focus of the Court is Defendants' treatment of minors within their "legal custody" and whether it comports with the requirements of the Flores Agreement. The Court considers first the threshold question of whether minors in Title 42 custody are Flores Class Members.
The Flores Agreement provides protections to its Class Members, who are defined as "[a]ll minors who are detained in the legal custody of the INS." FSA at ¶ 10. Whether minors detained under Title 42 are Class Members therefore depends on who has legal custody over them, and whether that entity is a successor to the INS. The question turns on the definition of "legal custody" as contemplated by the Agreement.
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