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Flores v. Loretta Lynch – The 9th Circuit Decision that created the illegal alien family separation mess [Full Text]

In 2015, the plaintiff class in Janet Reno v. Flores moved to enforce the Flores Consent Decree of 1997 after the government asserted in 2014 that the decree only required the removal of unaccompanied minors from detention facilities as quickly as possible. The court, in Flores v. Loretta Lynch, sided with the plaintiff and held that the decree required the government to remove both accompanied and unaccompanied minors from detention facilities within a short period, which is now considered 72 hours. (RELATEDFederal Judge’s ruling all but eliminates the southern U.S. border)

The finding had an unintended set of consequences. Either the government had to be able to process any immigration/asylum case within the 72-hour period or the children would need to be moved to a “licensed, non-secure facility” that “meets high standards”. The result is that any case where the alien adult’s case was unable to be adjudicated within 72 hours would result in the separation of the child from the adult detainee.

The Obama administration decided to release both the suspected criminal alien and the accompanied minors into the United States pending trial to satisfy the court decision although the action failed to enforce U.S. law. Less than 10% of those released bother to show up for their court dates.

The lax enforcement resulted in a massive influx of Central American immigrants with children in tow and they tend to have no documentation making familial bonds difficult to ascertain.

Human traffickers use kidnapped and enslaved children to pose as accompanied alien minors and parents now drag their children on a dangerous journey as a method to skirt U.S. immigration law.

The conclusions of the court in Flores v. Loretta Lynch are as follows:

  1. The Flores Dissent Decree applies to accompanied and unaccompanied minors
  2. The Flores Dissent Decree does not require the release of accompanying parents or guardians

This basically creates the situation where, if immigration laws are enforced and these decision adhered to, the minor must be moved to a non-secure, licensed facility, but the parents will remain in a secure detainment facility awaiting trial. That is where the separation of illegal alien families originates – a legal agreement during the Clinton administration and a court decision during Obama’s term. Only Congress can make a law or set of laws to remedy this.

Where did the 20-day limit come from?

The 20-day reference thrown around by the media and administration does exist. It isn’t codified in law that we were able to discover, but instead a court order from August of 2015. In it, DHS is given an average of 20-days to handle asylum claims. The full text of that order is HERE.

What laws feed into the family separation mess?

Two laws play a part in illegal aliend family separations. The Homeland Security Act (HSA) from 2002 and the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) from 2008.

Full text of the 9th Circuit Court decision in Flores v. Loretta Lynch


General, Attorney General of
the United States; JEH JOHNSON,
Secretary of Homeland
subordinate entities; U.S.

No. 15-56434
D.C. No.


Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Argued and Submitted June 7, 2016
Pasadena, California

Filed July 6, 2016

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

Opinion by Judge Hurwitz



The panel affirmed in part and reversed in part the
district court’s order granting the motion of a plaintiff class
to enforce a 1997 Settlement with the government which set
a nationwide policy for the detention, release, and treatment
of minors detained in Immigration and Naturalization
Service custody, and remanded for further proceedings.

The panel held that the Settlement unambiguously
applies both to minors who are accompanied and
unaccompanied by their parents. The panel held, however,
that the district court erred in interpreting the Settlement to
provide release rights to accompanying adults. The panel
also held that the district court did not abuse its discretion in
denying the government’s motion to amend the Settlement.


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 DefendantsAppellants.
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.


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.


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 (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

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; 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.

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 rel.
Bunikiene v. Chertoff, No. 1:07-cv-00164-SS, 2007 WL
1074070, at *1 (W.D. Tex. Apr. 9, 2007). “In the wake of
September 11, 2001, however, immigration policy
fundamentally changed,” with “more restrictive immigration
controls, tougher enforcement, and broader expedited
removal of illegal aliens,” which “made the automatic
release of families problematic.” Id.

In 2001, the INS converted a nursing home in Berks
County, Pennsylvania (“Berks”) into its first family
detention center. Id. Because Pennsylvania has no licensing
requirements for family residential care facilities, Berks has
been monitored and licensed by state authorities under the
state standards applicable to child residential and day
treatment facilities. Id. at *8.

In 2002, Congress enacted the Homeland Security Act,
Pub. L. No. 107-296, 116 Stat. 2135, abolishing the INS and
transferring most of its immigration functions to the newlyformed
Department of Homeland Security (“DHS”), in
which Immigration and Customs Enforcement (“ICE”) is
housed. 6 U.S.C. §§ 111, 251, 291. The Homeland Security
Act transferred responsibility for the care and custody of
unaccompanied alien children to the Office of Refugee
Resettlement in the Department of Health and Human
Services. 6 U.S.C. § 279(a), (b)(1)(A), (g)(2).

In 2006, DHS converted a medium security prison in
Taylor, Texas into its second family detention facility, the
Don T. Hutto Family Residential Center (“Hutto”).
Bunikyte, 2007 WL 1074070, at *1. In 2007, three children
at Hutto, who were not represented by Flores’ class counsel,
filed suit in the Western District of Texas, contending that
the conditions at Hutto violated the Settlement. Id. at *1–2.
In response, the government argued that the Settlement
applied only to unaccompanied minors. The district court
rejected that argument, holding that “by its terms, [the
Settlement] applies to all ‘minors in the custody’ of ICE and
DHS, not just unaccompanied minors.” Id. at *2–3 (quoting
Settlement ¶ 9). The court then concluded that the minors’
confinement at Hutto violated the Settlement’s detention
standards, id. at *6–15, but rejected the claim that the
Settlement entitled the plaintiffs to have their parents
released with them, id. at *16. The suit settled before trial.
In re Hutto Family Det. Ctr., No. 1:07-cv-00164-SS, Dkt.
94, (W.D. Tex. Aug. 26, 2007)

In 2008, Congress enacted the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008
(“TVPRA”), Pub. L. No. 110-457, 122 Stat. 5044
(principally codified in relevant part at 8 U.S.C. § 1232).
TVPRA partially codified the Settlement by creating
statutory standards for the treatment of unaccompanied
minors. See, e.g., 8 U.S.C. § 1232(c)(2)(A) (an
unaccompanied alien child “shall be promptly placed in the
least restrictive setting that is in the best interest of the
child,” subject to considerations of flight and danger).

IV. The Enforcement Action and R.I.L-R v. Johnson

In 2014, a surge of undocumented Central Americans
arrived at the U.S.-Mexico border. In response, ICE opened
family detention centers in Karnes City and Dilley, Texas,
and Artesia, New Mexico. It closed the Artesia center later
that year. The detention centers operate under ICE’s Family
Residential Detention Standards, which do not comply with
the Settlement.

In January 2015, a group of Central American migrants,
who were not represented by Flores class counsel, filed a
putative class action, claiming that the government had
adopted a no-release policy as to Central American families,
and challenging that alleged policy under the Due Process
Clause. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 170 (D.D.C.
2015). On February 20, 2015, the U.S. District Court for the
District of Columbia granted the plaintiffs’ motion for a
preliminary injunction. Id. at 171. The court found that ICE
had not adopted a blanket no-release policy, but found ample
support for the plaintiffs’ alternative contention that “DHS
policy directs ICE officers to consider deterrence of mass
migration as a factor in their custody determinations, and
that this policy has played a significant role in the recent
increased detention of Central American mothers and
children.” Id. at 174. The court preliminarily enjoined the
government from using deterrence as a factor in detaining
class members. R.I.L-R v. Johnson, No. 1:15-cv-00011-
JEB, Dkt. 32 (D.D.C. Feb. 20, 2015).

In May 2015, the government notified the court that it
had decided “to discontinue, at this time, invoking
deterrence as a factor in custody determinations in all cases
involving families, irrespective of the outcome of this
litigation,” while maintaining that it could lawfully reinstate
the policy. Id. Dkt. 40. In June 2015, by the agreement of
the parties, the district court in R.I.L-R dissolved the
preliminary injunction and closed the case, allowing
plaintiffs to move to reinstate the preliminary injunction if
the government again invoked deterrence in custody
determinations. Id. Dkt. 43.

Meanwhile, on February 2, 2015, Flores filed a motion
in the U.S. District Court for the Central District of
California to enforce the Settlement, arguing that ICE had
breached it by (1) adopting a no-release policy, and
(2) confining children in the secure, unlicensed facilities at
Dilley and Karnes.1 The government argued in response that
the Settlement does not apply to accompanied minors, and
filed an alternative motion to amend the Settlement to so
provide. On July 24, 2015, the district court granted Flores’
motion, denied the government’s motion to amend, and also
held that the Settlement requires release of a minor’s
accompanying parent, “as long as doing so would not create
a flight risk or a safety risk.”2 On August 21, 2015, the
district court filed a remedial order. The government timely
appealed. We have jurisdiction under 28 U.S.C. § 1292.


The Settlement is a consent decree, which, “like a
contract, must be discerned within its four corners, extrinsic
evidence being relevant only to resolve ambiguity in the
decree.” United States v. Asarco Inc., 430 F.3d 972, 980 (9th
Cir. 2005). We review the district court’s interpretation of
the contract de novo. Miller v. Safeco Title Ins. Co.,
758 F.2d 364, 367 (9th Cir. 1985). “Motions for relief from
judgment under Rule 60(b) are reviewed for abuse of
discretion.” Asarco, 430 F.3d at 978.


I. The Settlement Applies to Accompanied Minors

We agree with the district court that “[t]he plain
language of the Agreement clearly encompasses
accompanied minors.” First, the Settlement defines minor
as “any person under the age of eighteen (18) years who is
detained in the legal custody of the INS”; describes its scope
as setting “nationwide policy for the detention, release, and
treatment of minors in the custody of the INS”; and defines
the class as “[a]ll minors who are detained in the legal
custody of the INS.” Settlement ¶¶ 4, 9, 10. Second, as the
district court explained, “the Agreement provides special
guidelines with respect to unaccompanied minors in some
situations,” and “[i]t would make little sense to write rules
making special reference to unaccompanied minors if the
parties intended the Agreement as a whole to be applicable
only to unaccompanied minors.” See id. ¶ 12(A) (“The INS
will segregate unaccompanied minors from unrelated
adults.”); id. ¶ 25 (“Unaccompanied minors arrested or taken
into custody by the INS should not be transported by the INS
in vehicles with detained adults except . . . .”). Third, as the
district court reasoned, “the Agreement expressly identifies
those minors to whom the class definition would not
apply”—emancipated minors and those who have been
incarcerated for a criminal offense as an adult; “[h]ad the
parties to the Agreement intended to exclude accompanied
minors from the Agreement, they could have done so
explicitly when they set forth the definition of minors who
are excluded from the Agreement.” See id. ¶ 4.

The government nevertheless argues that certain terms
of the Settlement show that it was never meant to cover
accompanied minors. 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.” Id. ¶ 6. The
government contends that this makes only “dependent
minors” eligible for licensed programs; that Black’s Law
Dictionary defines dependent minors to exclude
accompanied minors, see Child, Black’s Law Dictionary
(10th ed. 2014); and that it would make little sense for the
Settlement to apply to accompanied minors but exclude them
from licensed programs. We reject this argument. That a
program is “licensed . . . to provide . . . services for
dependent children” does not mean that only dependent
children can be placed in that program. And, the definition
of “licensed program” does not indicate any intent to exclude
accompanied minors; rather, its obvious purpose is to use the
existing apparatus of state licensure to independently review
detention conditions.

At oral argument, the government cited a provision of
the Settlement requiring that, “[b]efore a minor is released
from INS custody pursuant to Paragraph 14 above, the
custodian must execute an Affidavit of Support (Form I-134)
and an agreement to,” among other things, provide for the
minor’s well-being and ensure the minor’s presence at
immigration proceedings. Settlement ¶ 15. The government
claims that the reference to the “custodian” demonstrates
that the Settlement did not contemplate releasing a child to
an accompanying parent. The government is right in one
sense—the Settlement does not contemplate releasing a
child to a parent who remains in custody, because that would
not be a “release.” But, it makes perfect sense to require an
aunt who takes custody of a child to sign an affidavit of
support, whether or not the child was arrested with his

The government correctly notes that the Settlement does
not address the potentially complex issues involving the
housing of family units and the scope of parental rights for
adults apprehended with their children. For example,
Exhibit 1, which sets forth requirements for licensed
programs, does not contain standards related to the detention
of adults or family units. But, the fact that the parties gave
inadequate attention to some potential problems of
accompanied minors does not mean that the Settlement does
not apply to them. See Bunikyte, 2007 WL 1074070, at *3
(“Though it is no defense that the Flores Settlement is
outdated, it is apparent that this agreement did not anticipate
the current emphasis on family detention. . . . Nonetheless,
the Flores Settlement, by its terms, applies to all ‘minors in
the custody’ of ICE and DHS, not just unaccompanied
minors.”) (quoting Settlement ¶ 9); id. (“Paragraph 19 sets
out the foundation of the detention standards applicable to
any minor in United States immigration custody, and there
is no reason why its requirements should be any less
applicable in a family detention context than in the context
of unaccompanied minors.”).

The government next argues that the Complaint and
certified classes were limited to unaccompanied minors, and
that the parties therefore could not have entered into a
Settlement granting rights to accompanied minors. To be
sure, this litigation initially focused on the problems facing
unaccompanied minors, who then constituted 70% of
immigrant children arrested by the INS. See Flores,
507 U.S. at 295. But, the Complaint was not limited to
unaccompanied minors. The conduct Flores challenged—
INS detention conditions and the Western Region release
policy—applied to accompanied and unaccompanied minors
alike. See Complaint ¶ 50 (challenging the INS’ “policy to
indefinitely jail juveniles, particularly those whose parents
INS agents suspect may be aliens unlawfully in the United
States, unless and until their parent or legal guardian
personally appears before an INS agent for interrogation and
to accept physical custody of the minor.”); id. ¶¶ 65, 70–79
(challenging juveniles’ condition of confinement in INS
facilities, including the lack of education, recreation, and
visitation, and the imposition of strip searches). So did the
remedies sought and the classes the district court certified.
See id. at 29 ¶ 4 (requesting an order that the INS admit
juveniles to bail without requiring that their parents or legal
guardians appear before INS agents); Order re Class
Certification (certifying a class for the release claims and a
class for the detention conditions claims).

The government has not explained why the detention
claims class 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. As for release, the government focuses narrowly on
the release class definition. See Order re Class Certification
at 2 (defining the release class to include all minors arrested
in the INS’ Western Region “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”).
But, the release class was certified expressly to challenge the
Western Region’s policy of not releasing detained minors to
anyone other than a parent or guardian. Complaint ¶ 50; see
also Flores, 507 U.S. at 296. That policy applied equally to
accompanied minors, such as a boy detained with his mother
who wanted to be released to his aunt but was refused
because his father “fail[ed] to personally appear to take
custody of [him].” See Order re Class Certification at 2.

The government also contends that, because the four
named plaintiffs in the Complaint were unaccompanied, a
class including accompanied minors would run afoul of the
requirements of typicality and representativeness. See Fed.
R. Civ. P. 23. The government’s factual premise is
questionable: one of the named plaintiffs was accompanied
at the time of arrest by her adult brother, although he was
released without her. Complaint ¶ 34. But, more
importantly, the government waived its ability to challenge
the class certification when it settled the case and did not
timely appeal the final judgment. And, to the extent this and
other arguments are aimed at providing extrinsic evidence of
the meaning of the Settlement, they fail because the
Settlement unambiguously applies to accompanied minors.
See Asarco, 430 F.3d at 980.

II. The Settlement Does Not Require the Government to
Release Parents

Flores’ motion to enforce argued that ICE’s purported
no-release policy, which allegedly denied accompanying
parents “any chance for release,” frustrated the minor class
members’ right to preferential release to a parent, and that to
safeguard that right, ICE was required to give parents
individualized custody determinations. After the district
court tentatively agreed, Flores went further, proposing an
order providing that “Defendants shall comply with the
Settlement ¶ 14(a) by releasing class members without
unnecessary delay in first order of preference to a parent,
including a parent subject to release who presented her or
himself or was apprehended by Defendants accompanied by
a class member.”

While acknowledging that “the Agreement does not
contain any provision that explicitly addresses adult rights
and treatment in detention,” the district court nonetheless
reasoned that “ICE’s blanket no-release policy with respect
to mothers cannot be reconciled with the Agreement’s grant
to class members of a right to preferential release to a
parent.” The court also found that the regulation upheld in
Flores, 507 U.S. at 315, supported the release of an
accompanying relative. See 8 C.F.R. § 212.5(b)(3)(ii) (“If a
relative who is not in detention cannot be located to sponsor
the minor, the minor may be released with an accompanying
relative who is in detention.”). It also found support for that
conclusion in ICE’s practice, until June 2014, of generally
releasing parents who were not flight or safety risks.

The district court therefore concluded that the
government “must release an accompanying parent as long
as doing so would not create a flight risk or a safety risk,”
and it ordered:

To comply with Paragraph 14A of the
Agreement and as contemplated in Paragraph
15, a class member’s accompanying parent
shall be released with the class member in
accordance with applicable laws and
regulations unless the parent is subject to
mandatory detention under applicable law or
after an individualized custody determination
sthe parent is determined to pose a significant
flight risk, or a threat to others or the national
security, and the flight risk or threat cannot
be mitigated by an appropriate bond or
conditions of release.

The district court erred in interpreting the Settlement to
provide release rights to adults. The Settlement does not
explicitly provide any rights to adults. Bunikyte, 2007 WL
1074070 at *16. The fact that the Settlement grants class
members a right to preferential release to a parent over others
does not mean that the government must also make a parent
available; it simply means that, if available, a parent is the
first choice. Because “the plain language of [the] consent
decree is clear, we need not evaluate any extrinsic evidence
to ascertain the true intent of the parties.” See Nehmer v.
U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 861 (9th Cir.
2007). In any case, the extrinsic evidence does not show that
the parties intended to grant release rights to parents. “In
fact, the context of the Flores Settlement argues against this
result: the Settlement was the product of litigation in which
unaccompanied minors argued that release to adults other
than their parents was preferable to remaining in custody
until their parents could come get them.” Bunikyte, 2007
WL 1074070 at *16. The regulation the district court relied
upon at most shows that the parties might have thought about
releasing adults when executing the Settlement, not that they
agreed to do so in that document. And, there is no evidence
that ICE once released most children and parents because of
the Settlement, rather than for other reasons.

Flores suggests that we construe the district court’s order
narrowly, arguing that it only requires, as she initially
requested, that the government grant accompanying parents
individualized custody determinations “in accordance with
applicable laws and regulations,” just as it would single
adults. But, the district court plainly went further. A noncriminal
alien detained during removal proceedings
generally bears the burden of establishing “that he or she
does not present a danger to persons or property, is not a
threat to the national security, and does not pose a risk of
flight.” In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006).
But, the district court placed the burden on the government,
requiring it to release an accompanying parent “unless the
parent is subject to mandatory detention under applicable
law or after an individualized custody determination the
parent is determined to pose a significant flight risk, or a
threat to others or the national security.” In addition, the
order requires a “significant flight risk” to justify detention,
while the usual standard is merely “a risk of flight.” Id.
More importantly, parents were not plaintiffs in the Flores
action, nor are they members of the certified classes. The
Settlement therefore provides no affirmative release rights
for parents, and the district court erred in creating such rights
in the context of a motion to enforce that agreement.

III. The District Court Correctly Denied the
Government’s Motion to Amend the Settlement

Even if the Settlement applies to accompanied minors,
the government argues that it is “no longer equitable” to
apply it as written. See Fed. R. Civ. P. 60(b)(5) (allowing
relief from judgment if “applying it prospectively is no
longer equitable”); Horne v. Flores, 557 U.S. 433, 447
(2009) (“Rule 60(b)(5) serves a particularly important
function in what we have termed ‘institutional reform
litigation.’”). The district court denied this motion. We
review that decision for abuse of discretion. Asarco,
430 F.3d at 978.

“[A] party seeking modification of a consent decree
bears the burden of establishing that a significant change in
circumstances warrants revision of the decree. If the moving
party meets this standard, the court should consider whether
the proposed modification is suitably tailored to the changed
circumstance.” Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S.
367, 383 (1992). When the basis for modification is a
change in law, the moving party must establish that the
provision it seeks to modify has become “impermissible.”
Id. at 388.

The government first argues that the Settlement should
be modified because of the surge in family units crossing the
Southwest border. “Ordinarily, however, modification
should not be granted where a party relies upon events that
actually were anticipated at the time it entered into a decree.”
Id. at 385. The Settlement expressly anticipated an influx,
and provided that, if one occurred, the government would be
given more time to release minors or place them in licensed
programs. Settlement ¶ 12. And, even if the parties did not
anticipate an influx of this size, we cannot fathom how a
“suitably tailored” response to the change in circumstances
would be to exempt an entire category of migrants from the
Settlement, as opposed to, say, relaxing certain requirements
applicable to all migrants. See Rufo, 502 U.S. at 383.

The government also argues that the law has changed
substantially since the Settlement was approved. It cites
Congress’ authorization of expedited removal—but that
occurred in 1996, before the Settlement was approved. See
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. 104–208, § 302, 110 Stat. 3009-546,
579–85 (1996). The government also notes that the
Homeland Security Act of 2002 reassigned the immigration
functions of the former INS to DHS; but there is no reason
why that bureaucratic reorganization should prohibit the
government from adhering to the Settlement. See Settlement
¶ 1 (“As the term [party] applies to Defendants, it shall
include their . . . successors in office.”).

The government also argues that some provisions of the
TVPRA regarding the detention and release of
unaccompanied minors are inconsistent with the Settlement.
At most, that might support modification of the conflicting
provisions so that they no longer apply to the
unaccompanied minors covered by the TVPRA. But, the
creation of statutory rights for unaccompanied minors does
not make application of the Settlement to accompanied
minors “impermissible.” The district court did not abuse its
discretion in denying the motion to amend on the record
before it.


We hold that the Settlement applies to accompanied
minors but does not require the release of accompanying
parents. We therefore affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.5
Each party shall bear its own costs.

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Rich Mitchell

Rich Mitchell is the editor-in-chief of Conservative Daily News and the president of Bald Eagle Media, LLC. His posts may contain opinions that are his own and are not necessarily shared by Bald Eagle Media, CDN, staff or .. much of anyone else. Find him on twitter, facebook and

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