Jenny Flores v. William Barr

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNY LISETTE FLORES, No. 20-55951
Plaintiff-Appellee, D.C. No.
2:85-cv-04544-DMG-AGR
v. Central District of California,
Los Angeles
WILLIAM P. BARR, Attorney General;
CHAD F. WOLF; U.S. DEPARTMENT OF ORDER
HOMELAND SECURITY; U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT; U.S. CUSTOMS AND
BORDER PROTECTION,
Defendants-Appellants.
Before: W. FLETCHER, BERZON, and M. SMITH, Circuit Judges.
The district court issued two orders precluding 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. Addressing the
government’s emergency motion for a stay, we conclude that the government is
unlikely to succeed on the merits of its appeal, as we likely do not have jurisdiction
over the appeal. The government also has not established that it would be
irreparably harmed if it were obliged to comply with the district court’s orders
while the appeal is pending. We therefore deny the government’s motion for a stay.
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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. Barr (“Flores II”), 934
F.3d 910, 912 (9th Cir. 2019). 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. Agreement ¶ 12.A. 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
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In September 2019, the district court denied the government’s motion to
terminate the Agreement. Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019).
The government’s appeal of that order is pending in this Court. Flores v. Barr, No.
19-56326 (9th Cir.).
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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
now applies indefinitely. See 85 Fed. Reg. 22,424 (Apr. 22, 2020); 85 Fed. Reg.
31,503 (May 26, 2020).
In July 2020, the independent monitor appointed by the district court to
monitor the implementation of the Flores Agreement 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
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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”).
In August 2020, the independent monitor reported 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,” but 25 percent had been held for more
than ten days, with a maximum stay of twenty-eight days. Id.
Plaintiffs filed a motion to enforce the Flores Agreement, arguing, among
other things, 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. Plaintiffs also asserted that minors held in hotels were being
denied access to counsel in violation of the Agreement.
The district court granted Plaintiffs’ motion. As relief, 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.” Id. 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
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of “other exigent circumstances . . . necessitat[ing] future hotel placements,” the
district court directed that the government “shall immediately alert Plaintiffs and
the Independent Monitor, providing good cause for why such unlicensed
placements are necessary.” Id. Citing paragraph 12.A 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, under
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 first 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 and 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-
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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, and we granted a further temporary administrative stay through
October 5, 2020.
II.
“A party requesting a stay pending appeal ‘bears the burden of showing that
the circumstances justify an exercise of [judicial] discretion.’” Doe #1 v. Trump,
957 F.3d 1050, 1058 (9th Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418, 433–
34 (2009)). In considering whether to exercise our discretion to grant the
government’s motion for a stay, “we apply the familiar standard set forth by the
Supreme Court in Nken, namely: (1) whether the Government has made a strong
showing of the likelihood of success on the merits; (2) whether the [government]
will be irreparably injured absent a stay; (3) whether a stay will substantially injure
other parties; and (4) where the public interest lies.” Id. “‘The first two factors . . .
are the most critical.’” Id. (quoting Nken, 556 U.S. at 434). “We consider the last
two factors if the first two factors are satisfied.” Id.; see All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) (explaining, in the analogous
context of a preliminary injunction, that relief “is appropriate when a plaintiff
demonstrates . . . that serious questions going to the merits were raised and the
balance of hardships tips sharply in the plaintiff’s favor” (internal quotation marks
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omitted)).
A.
The first Nken factor, whether the government has made a strong showing
that it is likely to succeed on the merits of its appeal, obliges us to consider
whether we are likely to have jurisdiction over the appeal. “This court has
appellate jurisdiction over interlocutory district court orders ‘granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions.’” Flores II, 934 F.3d at 914 (quoting 28 U.S.C. § 1292(a)(1)). We
must determine whether, as the government contends, the district court’s orders
have functionally modified the Flores Agreement or whether, on the other hand,
they simply enforce the existing consent decree.2 See id. Deciding that question
requires us to review the parties’ arguments on the merits issues of whether the
Agreement applies to minors detained under Title 42 and whether the district
court’s orders require the government to take actions beyond those required by the
Agreement. Cf. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)
(holding that a court may address jurisdictional and substantive issues concurrently
2
We reject the government’s argument that we have jurisdiction under 28 U.S.C. §
1291 because the district court’s “order enjoins activity taken under independent
statutory authority, addressing public health rather than immigration, by the CDC
Director who has nothing to do with the government’s immigration operations and
is not a party to the Agreement.” The district court’s orders do not state that the
CDC Director is covered by the Agreement and do not require the CDC to do
anything.
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if they are “intertwined”).
By its terms, the Agreement applies to “[a]ll minors who are detained in the
legal custody of the INS.” Agreement ¶ 10. The former “Immigration and
Naturalization Service’s obligations under the Agreement now apply to [DHS] and
the Department of Health and Human Services” (“HHS”). Flores II, 934 F.3d at
912 n.2. Additionally, the Agreement applies to both unaccompanied and
accompanied minors. Flores v. Lynch (“Flores I”), 828 F.3d 898, 905 (9th Cir.
2016).
The government maintains that minors held under Title 42 “are in the legal
custody of the CDC” because “the source of legal authority for custody” is the
CDC order, not the immigration statutes. But there is no evidence that the term
“custody,” as used in the Flores Agreement, refers to the source of legal authority
for custody, as opposed to the entity actually exercising legal custody. The
Agreement does not define “custody,” so we look to the common meaning of the
term, particularly in the legal context. See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081
(9th Cir. 2009). The term’s ordinary meaning in family law is the right to make
important decisions affecting the child. See Custody, Black’s Law Dictionary (11th
ed. 2019) (defining “legal custody” in the family law context as “[t]he authority to
make significant decisions on a child’s behalf”); Cal. Fam. Code § 3003 (defining
“legal custody” as “the right and the responsibility to make the decisions relating to
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the health, education, and welfare of a child”); Agreement ¶¶ 12.A, 14, 15, 16, 19.
DHS itself, in its recently promulgated regulations assertedly implementing the
Flores Agreement, defines “custody” as “within the physical and legal control of
an institution or person.” 8 C.F.R. § 236.3(b)(4). That definition accords with the
usual family law understanding of “legal custody.” Like California
Family Code § 3003, 8 C.F.R. § 236.3(b)(4) defines “custody” based on an
institution or person’s ability to physically and legally control the child.
DHS’s current position, focusing on the source of the legal authority for assigning
custody and not on the assigned custody itself, is inconsistent with all of these
definitions.
Here, it is clear that DHS both maintains physical control and exercises
decision-making authority over the minors held in hotels under Title 42. DHS
apprehends the minors; DHS decides, apparently unilaterally and with no
explanation or articulated standards, whether to expel them under Title 42 or to
detain them under the immigration statutes; DHS decides where and for how long
to hold them (the CDC order says nothing whatever about detention in hotels); and
DHS provides for their physical needs, including medical care. See Sept. 4 Order,
2020 WL 5491445, at *4–5. Thus, the district court likely did not modify the
Agreement in concluding that minors held under Title 42 are in DHS’s custody for
purposes of the Agreement and by so applying the Agreement to those minors.
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The government asserted at oral argument that this Court has jurisdiction
over the appeal because the district court’s orders require the government to take
“specific actions,” not simply to comply with the Agreement. Flores II held that
we did not have jurisdiction to review the district court’s order enforcing the
Agreement at issue in that case. There, we distinguished Flores I, in which we
exercised appellate jurisdiction over the district court’s order requiring the
government to take “specific actions,” such as releasing a minor’s accompanying
parent. Flores II, 934 F.3d at 914 n.5. In Flores I, however, the district court’s
order required the government to take actions that the Agreement did not require
(i.e., releasing adults along with their children). See Flores I, 828 F.3d at 908. The
order thus modified the Agreement, and provided a basis for concluding, as the
opinion did without explanation, that there was jurisdiction under 28 U.S.C.
§ 1292(a). Id. at 905.
Here, in contrast, as in Flores II, the district court just directed compliance
with the Agreement, specifying in its September 4 order the paragraph of the
Agreement being implemented by each directive: DHS must ordinarily transfer
minors held for longer than three days to a licensed facility, as required by
paragraph 12.A of the Agreement, see Sept. 4 Order, 2020 WL 5491445, at *10;
Sept. 21 Order, 2020 WL 5666550, at *4; DHS must allow plaintiffs’ counsel to
visit facilities where minors are held and to meet with minors, as required by
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paragraphs 32 and 33 of the Agreement, see Sept. 4 Order, 2020 WL 5491445, at
*11; the government’s Juvenile Coordinators must maintain records on minors and
monitor compliance with the Agreement, as required by paragraphs 28A and 29 of
the Agreement, see id.; and the independent monitor and special expert may
conduct investigations under the authority already granted by the district court’s
October 5, 2018 order, see id. The deadlines in the orders assure compliance with
the Agreement by a date certain, but they add no substantive requirement. Each of
the actions ordered by the district court likely effectuates, rather than modifies, the
Agreement.
The government points out that paragraph 12.A of the Agreement provides
an exception from the three-day transfer rule “in the event of an emergency.”
Agreement ¶ 12.A(3). The Agreement defines an “emergency” as “any act or event
that prevents the placement of minors . . . within the time frame provided,”
including “medical emergencies (e.g., a chicken pox epidemic among a group of
minors).” Id. ¶ 12.B. In the event of an emergency, DHS is required to place
minors in a licensed program “as expeditiously as possible.” Id. ¶ 12.A(3). The
government contends that the emergency exception applies here, making the
district court’s “application of a strict three-day transfer rule . . . incorrect.”
The district court’s orders in fact are not strict. The original order provides
the government with flexibility to address “exigent circumstances that necessitate
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future hotel placements.” Sept. 4 Order, 2020 WL 5491445, at *10. And the
amended order permits three-day hotel stays for the express purpose of allowing
the government to “alleviate bottlenecks in the intake processes at licensed
facilities.” Sept. 21 Order, 2020 WL 5666550, at *4. Nothing in the present record
establishes that the COVID-19 pandemic prevents the government from placing
minors in licensed programs within three days. As addressed further below, the
capacity of the government’s shelters for unaccompanied minors—10,000 vacant
beds as of August 22, 2020—appears more than adequate to accommodate the
number of unaccompanied minors who need licensed placements, taking COVID-
19 safety protocols into account. See Sept. 4 Order, 2020 WL 5491445, at *8.
The government has not shown that the district court’s orders require it to
take actions not required by the Agreement. We therefore conclude that we likely
do not have jurisdiction over the appeal, and that for that reason, the government
has not shown a strong likelihood of success on the merits.
B.
Even where there has not been a showing of a strong likelihood of success
on the merits, relief may be appropriate if the party seeking it demonstrates that
“serious questions going to the merits were raised and the balance of hardships tips
sharply in the [party’s] favor.” All. for the Wild Rockies, 632 F.3d at 1134–35.
Although we doubt that the government has satisfied even the “serious questions”
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standard here, we nonetheless consider whether the government has shown that it
will be irreparably injured absent a stay. It has not.
The government asserts that complying with the district court’s orders while
this appeal is pending would cause irreparable harm by “increas[ing] the risk of
COVID-19 exposure in U.S. Border Patrol facilities, [Immigration and Customs
Enforcement (‘ICE’)] family residential centers, and [Office of Refugee
Resettlement (‘ORR’)] shelters.” The government submitted a declaration from a
Border Patrol official “anticipat[ing] that [the Border Patrol] may need to refer
approximately 60-140 additional single minors to [licensed programs under the
authority of ORR] per week” as a result of the district court’s September 4 order.
The declaration does not provide a basis for the 60 to 140 estimate and, like all of
the government’s declarations, it predates the district court’s September 21 order,
which modified the original order to allow the government to hold minors in hotels
for up to three days.
The independent monitor’s August 2020 report indicated that 25 percent of
minors housed in hotels from March 24, 2020, to July 31, 2020, were held for three
days or less. The independent monitor also reported that a total of 577
unaccompanied minors were held in hotels during that time period. If 75 percent of
those minors had been referred to ORR, an average of 24 minors would have been
referred each week. Even assuming, as the government’s declarations suggest, that
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apprehensions have increased, the government does not explain how it has
determined that 60 to 140 unaccompanied minors are likely to be referred to ORR
each week instead of being held in hotels. That estimate is even more inexplicable
given the assertion of another government declarant that, as of September 17,
2020, “no minors are being held in hotels as part of the Title 42 program.”
The government also submitted a declaration from an ORR official stating
that “ORR is already receiving approximately 105 referrals a week,” and, in light
of the agency’s need to implement COVID-19 safety protocols, the ORR system
“is already at its functional intake capacity.” But the government has not
established that the additional referrals would actually overwhelm the ORR
system. The same ORR official determined in March 2020, when the system was
operating at 30 percent capacity overall, that the population of minors was
sufficiently low to allow ORR to implement COVID-19 safety protocols
effectively. She now urges us not to rely on that determination and points out that
the population was “practically static” at that time, so the system’s intake capacity
was not burdened. Since March, however, the population of minors in ORR care
has dropped tenfold; as of August 24, 2020, the system was operating at 3 percent
capacity, with 10,000 vacant beds. See Sept. 4 Order, 2020 WL 5491445, at *8.
The government has not satisfactorily explained why ORR’s largely empty shelters
are not capable of absorbing even as many as 140 additional minors a week for
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short-term stays before those minors are expelled under Title 42.
Nor has the government offered testimony from any public health official
explaining why holding minors in hotels, which are open to the public, presents
less risk of COVID-19 exposure and spread, both to the minors and to the public,
than holding them in licensed facilities. Finally, if any of the problems prophesied
by the government show signs of materializing, the district court’s orders give the
government the option of “alert[ing] Plaintiffs and the Independent Monitor” that
“exigent circumstances . . . necessitate . . . hotel placements” and “providing good
cause for why such unlicensed placements are necessary.” Sept. 4 Order, 2020 WL
5491445, at *10.
The government has not established that irreparable harm will result if the
district court’s orders take effect while this appeal is pending.
III.
Having concluded that the government is unlikely to succeed on the merits
of its appeal and that it has not established a likelihood of irreparable injury, we
deny the motion for a stay pending appeal without reaching the last two Nken
factors. Doe #1, 957 F.3d at 1058.
Because the issues on appeal are well developed in the parties’ briefing of
the government’s emergency motion and the present panel will decide the merits of
this appeal, the parties are not required to file further briefs in this case. Any party
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wishing to file a nonrepetitive brief addressing points not already discussed in the
stay briefing may do so on the schedule previously established.
The emergency motion for a stay pending appeal is DENIED.
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