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Flores v. Sessions

United States Court of Appeals, Ninth Circuit

July 5, 2017

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.

          Argued and Submitted April 18, 2017 San Francisco, California

         Appeal from the United States District Court No. 2:85-cv-04544-DMG-AGR for the Central District of California Dolly M. Gee, District Judge, Presiding

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

          OPINION

          Reinhardt Judge.

         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 the Central District of California in 1985, challenging the policies of the Immigration and Naturalization Service (INS) regarding the release of detained minors. In 1997, the district court approved the current Settlement, which defines a "minor" as "any person under the age of eighteen (18) years who is detained in the legal custody of the INS, " Flores Settlement at ¶ 4, [4] and the certified class as "[a]ll minors who are detained in the legal custody of the INS, " id. at ¶ 10. The Settlement favors family reunification, and states the order of preference for persons into whose custody detained minors are to be released, provided that detention is not required to secure their appearance before immigration authorities or to ensure the safety of themselves or others. Id. at ¶ 14. The Settlement also addresses the appropriate care of those minors who cannot be immediately released, and who therefore remain in federal custody. Id. at ¶ 12A, 19-24. This includes providing such minors with the bond hearing that is the subject of this dispute.

         Paragraph 24A of the Flores Settlement provides that:

A minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge in every case, unless the minor indicates on the Notice of Custody Determination form that he or she refuses such a hearing.[5]

Id. at ¶ 24. We discuss the function and purpose of this hearing throughout this opinion.

         The Flores Settlement was intended as a temporary measure, but in 2001 the parties stipulated that it would remain in effect until "45 days following defendants' publication of final regulations" governing the treatment of detained, minors. It has now been twenty years since the Settlement first went into effect, and the government has not published any such rules or regulations. Thus, pursuant to the 2001 agreement, the Settlement continues to govern those agencies that now carry out the functions of the former INS. It is the position of the government, however, that Paragraph 24A has been terminated as to unaccompanied minors by the statutory changes and no longer remains in effect as to them.

         Statutes Following the Flores Settlement

         In the two decades since the Flores Settlement was approved, there have been dramatic changes to the bureaucratic landscape of immigration law. Twice, Congress has passed laws directly addressing the care and custody of unaccompanied minors.

         In 2002, Congress passed the Homeland Security Act (the "HSA"), Pub. L. No. 107-296, 116 Stat. 2135. The HSA abolished the former INS, and established the Department of Homeland Security (DHS). 6 U.S.C. §§ 111, 251, 291. Most relevant to this case, the Act also transferred a number of the functions relating to the care of unaccompanied minors from the former INS to the Director of the Office of Refugee Resettlement ("ORR") of the Department of Health and Human Services ("HHS").[6] 6 U.S.C. § 279(a), (b)(1)(A), (g)(2). The Act charges ORR with "ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child." Id. § 279(b)(1)(B). To that end, the HSA gives ORR responsibility for "coordinating and implementing the care and placement of unaccompanied alien children, " "ensuring that the best interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child, " "implementing policies with respect to the care and placement of unaccompanied alien children, " and identifying "a sufficient number of qualified individuals, entities, and facilities to house" such children. Id. § 279(b)(1). With respect to making placement determinations, the HSA requires that ORR coordinate with certain other agencies, including the Bureau of Border Security and the Bureau of Citizenship and Immigration Services, both part of the Department of Homeland Security. Id.§ 279(b)(2).

         Additionally the HSA includes a savings clause, which preserves those administrative actions to which the INS was a party. This clause provides that:

Completed administrative actions of an ageny . . . shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an officer of the United States or a court of competent jurisdiction, or by operation of law.

6 U.S.C. § 552(a)(1) (incorporated by reference into 6 U.S.C. § 279(f)(2)). The statute goes on to define such "completed administrative actions" as including "orders . . . agreements, grants, contracts, certificates, licenses, registrations, and privileges." Id. § 552(a)(2) (emphasis added). The Flores Settlement thus remains in ...


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