Flores v. Sessions, 17-55208

• Decision Date: 05 July 2017
• Docket Number: No. 17-55208,17-55208
• Citation: 862 F.3d 863
• Parties: Jenny Lisette FLORES, Plaintiff-Appellee, v. Jefferson B. SESSIONS III, Attorney General; Thomas E. Price, M.D., Secretary of Health and Human Services; John Kelly, Secretary of Homeland Security; U.S. Department of Homeland Security; U.S. Immigration and Customs Enforcement, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

862 F.3d 863

Jenny Lisette FLORES, Plaintiff-Appellee,

v.Jefferson B. SESSIONS III, Attorney General; Thomas E. Price, M.D., Secretary of Health and Human Services; John Kelly, Secretary of Homeland Security; U.S. Department of Homeland Security; U.S. Immigration and Customs Enforcement, Defendants-Appellants.

No. 17-55208

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 18, 2017, San Francisco, California

Filed July 05, 2017

Holly Stafford Cooper, Esquire, UC Davis School of Law, Davis, CA, Carlos R. Holguin, Peter Anthony Schey, Esquires, Center for Human Rights & Constitutional Law, Los Angeles, CA, Kyra Kazantzis, Esquire, Attorney, Public Interest Law Firm, Annette Kirkham, Senior Attorney, Katherine Haas Manning, Law Foundation of Silicon Valley, San Jose, CA, Steven H. Schulman, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, Virginia Corrigan, Youth Law Center, San Francisco, CA, for Plaintiff-Appellee.

Vinita Andrapalliyal, Sarah Fabian, Trial Attorney, August E. Flentje, DOJ—U.S. DEPARTMENT OF JUSTICE, Civil Division/Office of Immigration Litigation, Washington, DC, for Defendants-Appellants.

Jack Williford Londen, Morrison & Foerster LLP, San Francisco, CA, for Amicus Curiae Youth Advocacy Organizations.

Stephen B. Kang, ACLU Foundation of Northern California, San Francisco, CA, for Amici Curiae ACLU Immigrants' Rights Project and ACLU of Southern California.

Austin Manes, Kramer Levin Naftalis & Frankel LLP, Menlo Park, CA, for Amici Curiae SAFE Passage Project Clinical Course at New York Law School and 23 Professors in Law School Clinics and Clinical Courses Throughout the United States Who Represent Unaccompanied Immigrant Youth.

Before: Reinhardt, Tashima, and Berzon, Circuit Judges.

OPINION

Opinion by Judge Reinhardt :

In this case we apply the straightforward tools of statutory construction in order to determine what the statutes before us are designed to do and not do. In performing this task we, of course, start by examining the words of the statutes. We then look to the statutes' clear purpose and intent. Specifically, we ask whether, without even mentioning the subject, the statutes invalidate a key provision of a consent decree to which the government is bound. In the process, we encounter a bureaucratic maze of alphabet agencies and examine how they can work together to carry out their shared and overlapping statutory duties. In the end, however, we arrive at a simple answer to our question. If Congress had intended to terminate the settlement agreement in whole or in part, it would have said so.

Introduction

On January 28, 1997, the district court approved a settlement between the plaintiff class and the federal government establishing a "nationwide policy for the detention, release, and treatment of minors in the custody of the INS." Flores Settlement at ¶ 9. The "Flores Settlement" sets the minimum standards for the detention, housing, and release of non-citizen juveniles who are detained by the government, and obliges the government to pursue a "general policy favoring release" of such juveniles. Id . at ¶ 14. Pursuant to this goal, Paragraph 24A of the Settlement provides that a "minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge." Id . at ¶ 24A. The question before us today is whether, in light of changes to the statutory law, this provision remains in effect in the case of unaccompanied minors.¹

Since the government agreed to the Flores Settlement, Congress has passed two statutes addressing the care and custody of unaccompanied, non-citizen minors.² In 2002, Congress enacted the Homeland Security Act (the "HSA"), which transferred authority over the care and placement of unaccompanied minors to the Office of Refugee Resettlement of the Department of Health and Human Services ("ORR"). In 2008, Congress enacted the Trafficking Victims Protection Reauthorization Act (the "TVPRA"), which paralleled certain aspects of the Flores Settlement and affirmed ORR's responsibility for the care and custody of unaccompanied minors. The government asserts that these two laws terminated the bond-hearing requirement of the Flores Settlement with respect to unaccompanied minors. Plaintiffs disagree, and moved to enforce the Settlement and to require that ORR comply in full with Paragraph 24A. The district court granted plaintiffs' motion, finding that neither the HSA nor the TVPRA terminated any part of the bond-hearing requirement of the Settlement Agreement. This appeal followed. We hold that in enacting the HSA and TVPRA, Congress did not terminate Paragraph 24A of the Flores Settlement with respect to unaccompanied minors.

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.

The bond hearing under Paragraph 24A is a fundamental protection guaranteed to unaccompanied minors under the Flores Settlement. As was true prior to the HSA and TVPRA, these proceedings do not afford unaccompanied minors the same rights that may be gained through an ordinary bond hearing. Specifically, they do not result in the setting of bail. Even if the immigration judge determines that the form of detention ORR has imposed is improper, the government must still identify a safe and secure placement into which the child can be released. As a result, a favorable finding in a hearing under Paragraph 24A does not entitle minors to release.

However, such a hearing does provide minors with meaningful rights and practical benefits. The hearing is a forum in which a child has the right to be represented by counsel, and to have the merits of his or her detention assessed by an independent immigration judge. The hearing is also an opportunity for counsel to bring forth the reasons for the minor's detention, examine and rebut the government's evidence, and build a record regarding the child's custody. Without such hearings, these children have no meaningful forum in which to challenge ORR's decisions regarding their detention or even to discover why those decisions have been made. There are no procedures available to them that afford them the right to a hearing with counsel, an opportunity to examine adverse evidence, or a forum in which to refute the government's claims regarding the need for their custody.

In the absence of such hearings, these children are held in bureaucratic limbo, left to rely upon the agency's alleged benevolence and opaque decision making. A hearing under Paragraph 24A provides meaningful protections against such perfunctory and ad hoc determinations. For all children in ORR custody, these hearings compel the agency to provide its justifications and specific legal grounds for holding a given minor. The record shows that, in the absence of such hearings, unaccompanied minors, their parents, and their counsel are often given conflicting or confusing information about why a child is being detained. Bond hearings provide the concrete information needed to advocate for a minor's release.

For those minors in secure detention, bond hearings additionally provide an opportunity to contest the basis of such confinement. For example, the TVPRA allows children to be placed in secure detention facilities only if they pose a safety risk to themselves or others, or have committed a criminal offense. These are precisely the determinations made by an immigration judge at a bond hearing.

Providing unaccompanied minors with the right to a hearing under Paragraph 24A therefore ensures that they are not held in secure detention without cause. Finally, bond hearings help to guide ORR in making its placement determinations for unaccompanied minors. By allowing an immigration judge to assess the merits of a child's ongoing detention, bond hearings provide ORR with valuable information that helps the agency determine the appropriate custody of unaccompanied minors in a fairer and less arbitrary manner.

As was the case under the Flores Settlement prior to the passage of the HSA and TVPRA, the determinations made at hearings held under Paragraph 24A will not compel a child's release. Regardless of the outcome of a bond hearing, a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement. At the time of the Settlement, that responsibility fell to the former INS; now, under the HSA and TVPRA, it rests with ORR. Thus, since well before the time the Settlement went into effect, bond hearings have not controlled the custody of unaccompanied minors. Yet the fact that the rights afforded by such hearings may be imperfect does not mean that the government may simply strip them from unaccompanied minors. Indeed, the fact that the plaintiffs are so vigorously fighting to retain the bond hearings, and the government so vigorously fighting to abolish them, may offer some indication that the hearings remain of practical importance. It is in this context that we examine the two statutes that the government contends terminate this key provision of the Flores Settlement.³

I.The Flores Settlement

The Flores Settlement arose out of a lawsuit first filed by plaintiffs in...