Flores v. Lynch

• Decision Date: 06 July 2016
• Docket Number: No. 15–56434,15–56434
• Citation: 828 F.3d 898
• Parties: Jenny Lisette Flores, Plaintiff–Appellee, v. Loretta E. Lynch, Attorney General, Attorney General of the United States; Jeh Johnson, Secretary of Homeland Security; U.S. Department of Homeland Security, and its subordinate entities; U.S. Immigration and Customs Enforcement; U.S. Customs and Border Protection, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

828 F.3d 898

Jenny Lisette Flores, Plaintiff–Appellee

v.Loretta E. Lynch, Attorney General, Attorney General of the United States; Jeh Johnson, Secretary of Homeland Security; U.S. Department of Homeland Security, and its subordinate entities; U.S. Immigration and Customs Enforcement; U.S. Customs and Border Protection, Defendants–Appellants.

No. 15–56434

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2016—Pasadena, California

Filed July 6, 2016

Leon Fresco (argued), Deputy Assistant Attorney General; Sarah B. Fabian, Senior Litigation Counsel; William C. Peachey, Director, District Court Section; Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; United States Department of Justice, Office of Immigration Litigation, Washington, D.C.; for Defendants–Appellants.

Peter Anthony Schey (argued) and Carlos R. Holguin, Center for Human Rights and Constitutional Law, Los Angeles, California; T. Wayne Harman and Elena Garcia, Orrick, Herrington & Sutcliffe LLP, Los Angeles, California; for Plaintiff–Appellee.

Before: Ronald M. Gould, Michael J. Melloy^* , and Andrew D. Hurwitz, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

In 1997, the plaintiff class (“Flores”) and the government entered into a settlement agreement (the “Settlement”) which “sets out nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Settlement ¶ 9. The Settlement creates a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards.

In 2014, in response to a surge of Central Americans attempting to enter the United States without documentation, the government opened family detention centers in Texas and New Mexico. The detention and release policies at these centers do not comply with the Settlement. The government, however, claims that the Settlement only applies to unaccompanied minors and is not violated when minors accompanied by parents or other adult family members are placed in these centers.

In 2015, Flores moved to enforce the Settlement, arguing that it applied to all minors in the custody of immigration authorities. The district court agreed, granted the motion to enforce, and rejected the government's alternative motion to modify the Settlement. The court ordered the government to: (1) make “prompt and continuous efforts toward 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. The government appealed, challenging the district court's holding that the Settlement applied to all minors in immigration custody, its order to release parents, and its denial of the motion to modify.

Although the issues underlying this appeal touch on matters of national importance, our task is straightforward—we must interpret the Settlement. Applying familiar principles of contract interpretation, we conclude that the Settlement unambiguously applies both to accompanied and unaccompanied minors, but does not create affirmative release rights for parents. We therefore affirm the district court in part, reverse in part, and remand.

BACKGROUND

I. History of the Litigation

In 1984, the Western Region of the Immigration and Naturalization Service (“INS”) adopted a policy prohibiting the release of detained minors to anyone other than “a parent or lawful guardian, except in unusual and extraordinary cases.” Reno v. Flores , 507 U.S. 292, 296, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (quotation marks omitted). The next year, Flores filed this action in the Central District of California, challenging that policy and the conditions under which juveniles were detained pursuant to the policy. Id.

In 1986, the district court certified two classes:

1. All persons under the age of eighteen (18) years who have been, are, or will be arrested and detained pursuant to 8 U.S.C. § 1252 by the Immigration and Naturalization Service (“INS”) within the INS' Western Region and who have been, are, or will be denied release from INS custody because a parent or legal guardian fails to personally appear to take custody of them.

2. All persons under the age of eighteen (18) years who have been, are, or will be arrested and detained pursuant to 8 U.S.C. § 1252 by the Immigration and Naturalization Service (“INS”) within the INS' Western Region and who have been, are, or will be subjected to any of the following conditions:

a. inadequate opportunities for exercise or recreation;

b. inadequate educational instruction;

c. inadequate reading materials;

d. inadequate opportunities for visitation with counsel, family, and friends;

e. regular contact as a result of confinement with adult detainees unrelated to such minors either by blood, marriage, or otherwise;

f. strip or body cavity search after meeting with counsel or at any other time or occasion absent demonstrable adequate cause.

In 1987, the court approved a consent decree settling the detention condition claims. Id. That agreement required the government to “house all juveniles detained more than 72 hours following arrest in a facility that meets or exceeds” certain standards, except in “unusual and extraordinary circumstances.”

The district court then granted the Flores class partial summary judgment on the claim that the INS violated the Equal Protection Clause by treating alien minors in deportation proceedings differently from alien minors in exclusion proceedings, the latter of whom were sometimes released to adults other than their parents. Id. In response, the INS adopted a rule allowing juveniles to be released to their parents, adult relatives, or custodians designated by their parents; if no adult relative was available, the rule gave the INS discretion to release a detained relative with the child. Id. at 296–97, 113 S.Ct. 1439 ; see Detention and Release of Juveniles, 53 Fed. Reg. 17449, 17451 (1988) (now codified, as amended, at 8 C.F.R. § 236.3 ). The Supreme Court upheld the INS rule against Flores' facial Due Process challenge. Flores , 507 U.S. at 315, 113 S.Ct. 1439.

II. The Settlement

In 1997, the district court approved the Settlement. The Settlement defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS,” except for “an emancipated minor or an individual who has been incarcerated due to a conviction for a criminal offense as an adult.” Settlement ¶ 4. The Settlement defines the contracting class similarly, as “[a]ll minors who are detained in the legal custody of the INS.” Id. ¶ 10.

The Settlement provides that “[w]henever the INS takes a minor into custody, it shall expeditiously process the minor and shall provide the minor with a notice of rights.” Id. ¶ 12(A). “Following arrest, the INS shall hold minors in facilities that are safe and sanitary and that are consistent with the INS's concern for the particular vulnerability of minors.” Id. Within five days of arrest, the INS must transfer the minor to a non-secure, licensed facility; but “in the event of an emergency or influx of minors into the United States,” the INS need only make the transfer “as expeditiously as possible.” Id.

The Settlement creates a presumption in favor of release and favors family reunification:

Where the INS determines that the detention of the minor is not required either to secure his or her 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, in the following order of preference, to:

A. a parent;

B. a legal guardian;

C. an adult relative (brother, sister, aunt, uncle, or grandparent);

D. an adult individual or entity designated by the parent or legal guardian ...

E. a licensed program willing to accept legal custody; or

F. an adult individual or entity seeking custody ...

Id. ¶ 14; see also id. ¶ 18 (requiring “prompt and continuous efforts ... toward family reunification and the release of the minor”). But, if the INS does not release a minor, it must place her in a “licensed program.” Id. ¶ 19. A “licensed program” is one “licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children,” which must be “non-secure as required under state law” and meet the standards set forth in an exhibit attached to the Settlement. Id. ¶ 6. Those standards include food, clothing, grooming items, medical and dental care, individualized needs assessments, educational services, recreation and leisure time, counseling, access to religious services, contact with family members, and a reasonable right to privacy. Some minors, such as those who have committed crimes, may be held in a juvenile detention facility instead of a licensed program. Id. ¶ 21.

The Settlement generally provides for the enforcement in the Central District of California, id . ¶ 37, but allows individual challenges to placement or detention conditions to be brought in any district court with jurisdiction and venue, id. ¶ 24(B). The Settlement originally was to terminate no later than 2002. Id. ¶ 40. But, in 2001, the parties stipulated that the Settlement would terminate “45 days following defendants' publication of final regulations implementing this Agreement.” The government has not yet promulgated those regulations.

III. Developments Subsequent to the Settlement

Before 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.” Bunikyte ex...