Ninth Circuit Rejects Trump Administration's Latest Challenge to Flores Settlement, Holds that Soap, Toothbrushes, and Toothpaste Cannot Be Denied Migrants

Yesterday, in Flores v. Barr, the U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Marcia S. Berzon, joined by Judges A. Wallace Tashima and William A. Fletcher, dismissed the U.S. government’s appeal in the Flores litigation, holding that the district court’s order does not modify the 1997 Flores settlement agreement, but rather reasonably interprets the settlement:

“We conclude that paragraph 12A’s provisions that facilities be ‘safe and sanitary and . . . consistent with the INS’s concern for the particular vulnerability of minors’ do have independent force and can be interpreted and enforced without thereby modifying the Agreement.'  The district court’s order will stand finding that the government was violating the Flores Agreement at certain Border Patrol stations by holding children in unsafe and unsanitary conditions including by depriving them of adequate sleep."  The U.S. government attorney in the case sparked controversy by arguing to the court that soap, toothbrushes, and tooth paste were not required for migrant children under the Flores settlement.     

Here is an NPR report on the decision.

 

Here is the court's "Summary" of the decision:

Immigration/Juvenile Detention

The panel dismissed for lack of jurisdiction an appeal brought by the Department of Homeland Security and its component agencies of the district court’s June 2017 order granting in part the motion of a plaintiff class to enforce a 1997 Settlement Agreement with the government which set a nationwide policy for the detention, release, and treatment of minors detained in Immigration and Naturalization Service custody.
 
 In 1997, the United States entered into a settlement with a class of minors subject to detention by U.S. immigration authorities. The Settlement Agreement, incorporated into a consent decree, requires immigration agencies to hold such minors in their custody “in facilities that are safe and sanitary.”  The Agreement also requires the government to treat these “minors in its custody with dignity, respect, and special concern for their particular vulnerability as minors.”
 
 Plaintiffs filed a motion in district court to enforce the Agreement. The district court found that the government was violating the Agreement by detaining minors in unsanitary and unsafe conditions at Border Patrol stations. These findings were based on evidence that minors in U.S. Customs and Border Protection custody were held in conditions that deprived them of sleep and did not provide adequate access to food, clean water, and basic hygiene items. The court also found that the government was violating the Agreement by failing to consider minors for release as specified in the Agreement and by detaining minors in detention facilities not licensed for the care of minors. The district court ordered “enforced” various paragraphs of the Agreement and also directed the government to appoint an internal “Juvenile Coordinator,” as contemplated by the Agreement, to monitor the government’s compliance with the Agreement and report to the court.
 
The parties agreed that this court has jurisdiction over the appeal of this post-judgment order only if it modified the Agreement.  
 
The government argued that the district court’s order did modify the Agreement by requiring the government to provide specific hygiene items and adequate sleeping accommodations not explicitly listed in the text of the Agreement.  The panel held that the district court’s order did not modify the Agreement, but instead interpreted the Agreement’s requirement that minors be held in “safe and sanitary” conditions “consistent with the [government’s] concern for the particular vulnerability of minors.”  
 
 The government also argued that the district court modified the Agreement by concluding that it requires the government to consider releasing class members subject to expedited removal. The government contended that this interpretation of the Agreement was inconsistent with the Immigration and Nationality Act and related regulations— primarily with the expedited removal provisions, which provide that noncitizens in expedited removal proceedings “shall be detained for further consideration of the[ir] application[s] for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). 

The panel held that, rather than modifying the Agreement, the district court appropriately interpreted it as consistent with both the INA and this court’s prior interpretation of the Agreement.
 
Regarding the government’s argument that the district court erred in concluding that the Agreement prohibits the government from detaining minors in secure, unlicensed family detention centers, the panel noted that the district court addressed this issue directly in its earlier July 2015 order, and that although the government appealed that order, it did not on appeal challenge the district court’s holding on this issue.  The panel concluded that this issue belatedly raised in this appeal was not properly before the court.
 
Because the panel concluded that the district court’s order did not modify the Agreement, it dismissed the appeal.

KJ