Flores v. Garland

3 F.4th 1145

Jenny Lisette FLORES, Plaintiff-Appellee,

v.Merrick B. GARLAND, Attorney General; Alejandro Mayorkas; U.S. Department of Homeland Security; U.S. Immigration and Customs Enforcement; U.S. Customs and Border Protection, Defendants-Appellants.

Nos. 20-55951

20-56052

United States Court of Appeals, Ninth Circuit.

Submitted June 23, 2021^* San Francisco, California

Filed June 30, 2021

Jeffrey Bossert Clark, Acting Assistant Attorney General; August E. Flentje, Special Counsel to the Assistant Attorney General; William C. Peachey, Director; Willia C. Silvis, Assistant Director; Sarah B. Fabian and Nicole N. Murley, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Leecia Welch, Neha Desai, Poonam Juneja, Freya Pitts, and Melissa Adamson, National Center for Youth Law, Oakland, California; Carols R. Holguín, Center for Human Rights & Constitutional Law, Los Angeles, California; for Plaintiffs-Appellees.

Christopher J. Hajec and Matt A. Crapo, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.

Before: William A. Fletcher, Marsha S. Berzon, and Milan D. Smith, Jr., Circuit Judges.

BERZON, Circuit Judge:

In the latest iteration of this decades-long litigation, the district court issued two orders enforcing the consent decree incorporating the Flores Agreement. The orders enjoined the Department of Homeland Security ("DHS") from detaining certain minors in hotels for more than a few days in the process of expelling them from the United States. We conclude that the district court's second order was a final decision for purposes of 28 U.S.C. § 1291, and we therefore have jurisdiction to review it. As the district court did not err in requiring DHS to apply the Flores Agreement to these minors, we affirm the district court's order.

I.

In 1997, the United States entered into a settlement agreement ("the Flores Agreement" or "the Agreement") with a class of minors subject to detention by U.S. immigration authorities ("Plaintiffs"). See Flores v. Rosen ("Flores II "), 984 F.3d 720, 727 (9th Cir. 2020). The Agreement was entered by the district court as a consent decree and remains in effect today.¹ Among other things, the Agreement provides that after the government apprehends minors, it ordinarily must transfer them to a "licensed program" within three days.² Agreement ¶ 12A. A "licensed program" refers to a "program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children." Id. ¶ 6.

In March 2020, the Centers for Disease Control ("CDC") issued an order temporarily suspending the "introduction ... into the United States ... [of] persons traveling from Canada or Mexico ... 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," subject to certain exceptions. 85 Fed. Reg. 17,060, 17,061 (Mar. 26, 2020). The order was issued under Title 42 of the U.S. Code, which authorizes the Surgeon General to "prohibit ... the introduction of persons and property" to protect against a "serious danger of the introduction of [any communicable] disease into the United States." 42 U.S.C. § 265. The stated purpose of the order was to "protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019 (COVID-19) into the land POEs, and the Border Patrol stations between POEs, at or near the United States borders with Canada and Mexico." 85 Fed. Reg. at 17,061.

The CDC order called for "the movement of all ... aliens [covered by the order] to the country from which they entered the United States, or their country of origin ... as rapidly as possible, with as little time spent in congregate settings as practicable under the circumstances." Id. at 17,067. The order requested that "DHS implement this order because CDC does not have the capability, resources, or personnel needed to do so." Id. The order was extended in April and May 2020 and replaced, in October 2020, by a new but "substantially the same" order. See 85 Fed. Reg. 65,806, 65,807 (Oct. 16, 2020) ; 85 Fed. Reg. 31,503 (May 26, 2020) ; 85 Fed. Reg. 22,424 (Apr. 22, 2020). We refer to the now-operative October CDC order as the "Title 42 Order."

The district court has appointed an independent monitor to assess the implementation of the Flores Agreement. In July 2020, the monitor reported to the district court that DHS was using hotels to house unaccompanied minors, as well as minors apprehended with a family member ("accompanied minors"), pending their expulsion under Title 42, "routinely for multiple days." See Flores v. Barr , No. CV-85-4544, 2020 WL 5491445, at *2 (C.D. Cal. Sept. 4, 2020) ("Sept. 4 Order"). The independent monitor reported the next month that DHS had used twenty-five hotels across three states, both in border cities (El Paso and McAllen, Texas) and interior cities (Phoenix and Houston), to house 660 minors between the ages of ten and seventeen, 577 of whom were unaccompanied. Id. On average, minors were housed in hotels for "just under five days, though 25% [were] held for more than 10 days, with a maximum stay of 28 days." Id.

Plaintiffs filed a motion to enforce the Flores Agreement, maintaining, among other contentions, that the hoteling program violated the Agreement's requirement that DHS ordinarily transfer minors to a licensed program if it holds them for longer than three days. Agreement ¶ 12A. Plaintiffs also asserted that minors held in hotels were being denied access to counsel in violation of the Agreement. Id. ¶ 32.

The district court granted Plaintiffs' motion. The court declared that the Agreement applied to minors detained under the authority of Title 42 and required the government to "comply with the Agreement with respect to such minors to the same degree as any other minors held in their custody." Sept. 4 Order, 2020 WL 5491445, at *10. Implementing that declaration, the court directed DHS to stop placing minors in hotels by September 15, 2020. Id. The order provided that "exceptions may be made for one to two-night stays while in transit or prior to flights." Id. In the event of "other exigent circumstances ... necessitat[ing] future hotel placements," the district court directed the government to "immediately alert Plaintiffs and the Independent Monitor, providing good cause for why such unlicensed placements are necessary." Id. Citing paragraph 12A of the Agreement, the district court required DHS to "transfer all minors" currently held in hotels to licensed facilities "as expeditiously as possible." Id. The court further directed the government to permit Plaintiffs' counsel to visit any facility where minors were being held under Title 42 and to meet with any minor being so held, invoking paragraphs 32 and 33 of the Agreement. Id. at *11.

The government appealed the district court's order and filed an emergency motion in this Court seeking a stay pending appeal. The government's motion relied on evidence not presented to the district court. We denied the government's motion without prejudice and granted a temporary administrative stay to allow the government to seek a stay in the district court. Order, Flores v. Barr , No. 20-55951 (9th Cir. Sept. 16, 2020).

The district court denied the government's motion for a stay but modified its original order. The modified order required DHS to stop placing minors at hotels by September 28, 2020, with the exception that "DHS may implement brief hotel stays (not more than 72 hours) as necessary and in good faith to alleviate bottlenecks in the intake processes at licensed facilities." Flores v. Barr , No. CV-85-4544, 2020 WL 5666550, at *4 (C.D. Cal. Sept. 21, 2020) ("Sept. 21 Order"). Returning to this Court, the government renewed its emergency motion for a stay pending appeal.

In October 2020, we denied the government's motion for a stay pending appeal. Flores v. Barr , 977 F.3d 742 (9th Cir. 2020) ("Order Denying Stay"). We concluded that the government had not shown a strong likelihood of success on the merits because we likely did not have jurisdiction over the appeal. Id. at 748. Additionally, we held that the government had not established that irreparable harm would result if the district court's orders took effect while the appeal was pending. Id. at 749.

There have been some developments concerning the underlying Title 42 Order while this appeal has been pending. In November 2020, the U.S. District Court for the District of Columbia issued a preliminary injunction barring enforcement of the Title 42 Order as to unaccompanied minors, P.J.E.S. v. Wolf , 502 F.Supp.3d 492, 520-22 (D.D.C. 2020), but the D.C. Circuit later stayed the preliminary injunction pending appeal, Order, P.J.E.S. v. Pekoske , No. 20-5357 (D.C. Cir. Jan. 29, 2021). Then, in February 2021, the CDC issued a notice "temporarily except[ing] ... unaccompanied noncitizen children" from expulsion under Title 42. CDC, Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children Encountered in the United States Pending Forthcoming Public Health Determination (Feb. 11, 2021). The notice stated that CDC was "in the process of reassessing" the Title 42 Order and that the temporary exception for unaccompanied minors would "remain in effect until CDC has completed its public health assessment and published any notice or modified Order." Id.

After the CDC notice, the government filed a status report with this Court stating that "CDC does not currently have a date by which it anticipates [its] reassessment will be complete." The government further reported that it "does expel minors who are accompanied by their parents or legal guardians under the Title 42 Order, along with such parents or legal guardians." The...