Note: We've posted this case as one challenging President Trump's immigration executive orders because those executive orders and their implementing memoranda, included as "resources," below, touch on many of the matters subject to longstanding court oversight in this case. As the challenges become clear, we'll provide more detail.
On July 11, 1985, attorneys from the National Center for Immigrants' Rights, the National Center for Youth Law, and the ACLU Foundation of Southern California represented four minors who filed this class action complaint pursuant to 42 U.S.C. § 1983 against the U.S. Attorney General, the Immigration and Naturalization Service ("INS"), its regional commissioner, and two private operators of INS detention facilities. The action, in the U.S. District Court for the Central District of California, presented a class-wide challenge to (a) INS policy to condition juveniles' release on bail on their parents' or legal guardians' surrendering to INS agents for interrogation and deportation; (b) the procedures employed by the INS in imposing a condition on juveniles' bail that their parents' or legal guardians' surrender to INS agents for interrogation and deportation; and (c) the conditions maintained by the INS in facilities where juveniles are incarcerated.
The challenged policy, under which the INS conditioned release of the administratively-arrested minors on the surrender of their parents or guardians for INS questioning or possible deportation proceedings was then-new; it had become effective on September 6, 1984, in the INS' Western Region. Plaintiffs noted that juveniles detained pending exclusion proceedings were eligible for bond without the bond eligibility condition that existed for juveniles detained pending deportation. The plaintiffs alleged that the new policy resulted in lengthy incarceration of juveniles in substandard conditions, without education, supervised recreation, or reasonable visitation opportunities, unreasonably subjected them to strip and body cavity searches, and served as a thinly-veiled device to apprehend the parents of the incarcerated juveniles and to punish the children. The INS policy and the conditions of detention, according to the plaintiffs, violated (a) the Immigration and Nationality Act, 8 U.S.C. sections 1101 et seq., including 8 U.S.C. section l252(a)(2) and implementing regulations and Operating Instructions; (b) the Administrative Procedure Act, 5 U.S.C. sections 552 et seq., including 5 U.S.C. section 553(b)-(c); (c) the Due Process and Equal Protection Clauses of the Fifth Amendment; (d) the First Amendment and federal constitutional privacy rights; and (e) the 1967 Protocol Relating to the Status of Refugees, TIAS 6577, 19 U.S. 6223 [hereafter "United Nations Protocol"], and customary international law. Plaintiffs sought declaratory and injunctive relief, class action status for their case, habeas corpus writs for themselves and members of their class to allow their release on bail, and an award of attorneys' fees and costs.
By November 30, 1987, the federal defendants and the plaintiffs entered into a memorandum of understanding to settle those aspects of the complaint alleging unlawful conditions of detention for the minors. The agreement established a network of community-based shelter care programs for the minor aliens held in INS custody.
Next, the aspect of the case alleging that the minors were unconstitutionally subjected to strip and body cavity searches came before the district court upon cross-motions for summary judgment. On March 7, 1988, District Judge Robert J. Kelleher ruled in plaintiffs' favor. His opinion cited the paucity of productive results from such strip searches and the failure of the defendants to establish a plausible, much less compelling, need for a blanket policy of searching minors in custody for administrative violations, rather than criminal offenses. Absent reasonable suspicion that a strip search would yield a weapon or contraband, Judge Kelleher said the practice violated the Fourth Amendment. Flores v. Meese, 681 F. Supp. 665 (C.D. Cal. 1988).
The INS had also moved for partial summary judgment regarding the plaintiffs' challenge to the bond condition. Judge Kelleher held that conditioning release, as alleged, did not violate federal statutory or international law, but deferred decision on the federal constitutional claims until further discovery had been completed. The judge however, later ruled that the bond release condition violated the equal protection clause, since no rational reason existed for treating alien minors in deportation proceedings differently than those in exclusion proceedings. The INS subsequently published for comment a proposed regulation that allowed for release of detained minors on bond to the custody of certain adults, per an order of preference stated in the regulation, unless the INS determined detention remained necessary to ensure the minor's appearance at INS proceedings or to ensure safety. The district court granted summary judgment to plaintiffs, saying the new regulation, 8 C.F.R. § 242.24, constituted a due process violation. The district court's unpublished order invalidated the blanket detention of minors where a "responsible adult," albeit not a parent, relative, or legal guardian, could ensure the minor's attendance at the deportation hearing, and it required a hearing before a neutral and detached official in each case to determine whether release was appropriate and the conditions of release.
On appeal, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed, ruling the INS had the discretion under statutory law to issue the regulation and not limit release to merely ensuring a minor's appearance at proceedings. On the due process claim, the court said that even if a minor had a right to be released to an unrelated adult, that right was not fundamental, and was thus subject to reasonable restriction. Absent a fundamental right, minimal scrutiny of the regulation sufficed. The panel cited the plenary power of U.S. to control its borders, and the limited nature of juveniles' rights compared to adults’ rights, as warranting the ruling. Additionally, citing the civil nature of the proceedings, the court ruled that procedural due process appropriate in criminal cases did not fully apply here. The panel opinion said the district court should, in assessing the INS procedures, balance the factors applicable in civil case due process settings (e.g., private interest, risk of erroneous deprivations, and governmental interest). Flores by Galvez-Maldonado v. Meese, 934 F.2d 998 (9th Cir. 1990) (Circuit Judge J. Clifford Wallace).
Seeking rehearing en banc, the plaintiffs contended that the panel majority erred in failing to recognize their fundamental interest in liberty, and that no procedure other than an individual hearing before an independent officer could provide adequate protections for the right at stake. On August 9, 1991, the en banc Ninth Circuit held that the INS' blanket detention of children during the pendency of deportation proceedings was unconstitutional. Illegal aliens had due process rights, said the court, and the INS had not shown that it had a need to impinge upon those rights in the manner that it was. The further found that the agency's judgment was not entitled to the usual deference accorded to administrative rulings since the interests of minors fell outside the agency's area of expertise. Consequently, the en banc court held that the INS’s policy was unconstitutional, and they held in favor of the plaintiffs. Flores by Galvez-Maldonado v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc) (Circuit Judge Mary Schroeder). The federal defendants' petition for certiorari, seeking Supreme Court review of the Ninth Circuit's opinion, was granted on March 2, 1992. Barr v. Flores, 503 U.S. 905 (1992).
The Supreme Court examined the language in the uniform deportation-exclusion rule, 8 C.F.R. § 242.24, in order to determine whether the ruling that alien juveniles should be released to responsible adults was correct. The court concluded that it was not. They held that the regulation accorded with both the Constitution and the relevant statute, which the court found, gave the U.S. broad discretion to continue custody over arrested aliens. 8 U.S.C. § 1252. The court found that the detained minors, for whom the U.S. was responsible, had no fundamental right to be released to a private party when no parent, close relative, or legal guardian was available, and the regulation therefore did not violate their right to due process. The court further found that the earlier consent decree ensured placement of the juveniles in facilities providing appropriate care, making the regulation sufficient to dispense with individualized hearings on placement. Additionally, the court found that automatic review was not required by the due process clause, as INS procedures provided for a right to have deportability decisions reviewed, in a context where the juveniles were able to exercise that right intelligently. 8 U.S.C. § 1252. Reno v. Flores, 507 U.S. 292 (1993) (Scalia, J.).
After the case returned to the district court, the plaintiffs filed a motion in November 1993, to enforce the earlier consent decree regarding conditions of confinement. They argued that the decree had been violated in several respects, in that: (1) the detained minors were non-delinquent children forced to endure prison-like treatment and restraints on their liberty; (2) the class members were subject to inappropriate disciplinary practices and unofficial physical abuse; (3) the detained class lacked adequate education or reading materials; (4) the class members were also denied any adequate recreation; and (5) the INS did nothing to assist the minors to understand the proceedings against them. The plaintiffs sought an order barring the INS from incarcerating class members in juvenile halls and other facilities not licensed for the care of dependent minors or, alternatively, directing the INS to comply with specific state standards protecting nondelinquent minors, as well as those standards expressly set out in the decree. We do not have information on the resolution of this motion.
In the late summer of 1996, the parties executed a comprehensive settlement of the case. Their Settlement Agreement set out nationwide policy for the detention, release, and treatment of minors in the custody of the INS. It superseded all previous INS policies inconsistent with the terms of the agreement, which would expire in 5 years (or earlier, with substantial compliance) and which had monitoring, reporting, and enforcement provisions. The Agreement provided for payment to plaintiffs' counsel of $374,110.09 in full settlement of their attorneys' fees and costs claims.
The settlement resulted, among other things, in annual compliance reports being filed with the court. The docket sheet for the case shows that in December 2001, Judge Kelleher entered a stipulated order that the Agreement would terminate 45 days after defendants' publication of final regulations implementing the agreement. However, those regulations were never published, and so the Agreement remained in effect.
Over time, disputes surfaced. On November 14, 2005, plaintiffs filed a motion to enforce the settlement. Years of discovery disputes and meetings with the court followed, with the parties finally amicably resolving their differences and the enforcement motion being withdrawn on June 6, 2007.
In the summer of 2014, a surge of Central American family migration led to numerous changes in policy by the Department of Homeland Security (DHS), including its subordinate agencies, Immigration and Customs Enforcement (ICE) and Custom and Border Protection (CBP), which between them had succeeded INS as the relevant immigration agencies. ICE adopted a blanket policy to detain all female-headed families, including children, in secure facilities for the duration of the proceedings that determine whether they are entitled to remain in the United States.
On February 2, 2015, plaintiffs filed a motion to enforce the settlement, arguing that this "no-release" policy violated the Agreement. More specifically, plaintiffs challenged: (1) ICE's no-release policy, which plaintiffs argued breached the Agreement's requirements that the U.S. minimize the detention of children and consider releasing class members to available custodians; (2) ICE's practice of confining children in secure, unlicensed facilities, which plaintiffs argued breached the Agreement’s requirement that the U.S. hold class members that they do not release in facilities that are licensed to care for dependent minors; and (3) ICE's practice of exposing children in Border Patrol custody to "harsh, substandard" conditions and treatment, which plaintiffs argued breached the Agreement’s requirement that the U.S. provide class members with a minimum level of care even while they await release or transfer to a licensed placement.
On February 27, 2015, DHS both opposed the motion to enforce and filed a motion to amend the Agreement, which plaintiffs opposed. The case was by this time before Judge Dolly Gee, and after a hearing in April, Judge Gee decided for the plaintiffs in all respects. Pointing to the Settlement Agreement's text, she rejected the U.S.'s argument that the decree protected unaccompanied minors only (only minors apprehended with a female relative were covered by the challenged policies). She agreed with the plaintiffs that ICE's blanket no-release policy could not be reconciled with the Agreement's grant to class members of a right to preferential release to a parent--even though that meant that ICE would generally need to release the accompanying parent, as well, as long as doing so would not create a flight risk or a safety risk. Judge Gee further found that both the unlicensed and secure status of the family detention facilities were non-compliant with the consent decree. She held that the fact that no state agency existed to license these sort of facilities, which housed families rather than just children, didn't mean that the licensing requirement in the decree should be disregarded. Rather, the impossibility of licensure cut in favor of release.
In addition, Judge Gee explained that the U.S. violated the Agreement when it placed plaintiffs in Border Patrol holding cells for a few days, pending their transfer to family facilities: "It is true that the Agreement holds Defendants to a lower standard--"safe and sanitary"--with respect to the temporary holding cells. But Defendants have wholly failed to meet even that minimal standard."
Judge Gee rejected each of the U.S.’s arguments seeking amendment of the Decree based on purported changes in law and fact. These covered much of the same ground as the enforcement motion. Most importantly, the U.S. sought to exclude accompanied minors from the Decree's protections and to eliminate licensure requirements for family detention. The Court declined to amend the Decree.
Instead, the Court entered an Order to Show Cause, proposing significant remediation to bring the U.S. into compliance, and requiring full briefing on that proposal by mid- August. On August 21, 2015, the Court rejected the U.S.'s request that she reconsider the remediation requirements. Judge Gee found that the U.S. had not demonstrated a material change in fact or law meriting a reconsideration. She ordered the U.S. to implement the following changes no later than October 23, 2015: (1) make and record prompt and continuous efforts toward family reunification and the release of class members; (2) unless otherwise required by the Agreement or law release class members without unnecessary delay to parents (including parents apprehended with class members) or other guardians in accordance with the Agreement; (3) refrain from detaining accompanied class members in facilities that are unlicensed or otherwise don’t meet the standards set forth in the Agreement; (4) release accompanying parents of class members in accordance with applicable laws and regulations; (5) monitor detention facilities to ensure that they meet the living conditions and other standards required by the Agreement; and (6) provide class counsel statistical information collected on compliance with the Agreement and her order on a monthly basis. 2015 WL 9915880 (C.D. Cal. Aug. 21, 2015).
On September 18, 2015, the U.S. appealed Judge Gee’s holding that the Agreement applied to all minors in immigration custody, what they perceived to be her order to release the parents of minors, and her denial of their motion to modify the Agreement. On July 6, 2016, the Ninth Circuit affirmed Judge Gee’s holding that the Agreement applies to accompanied minors, and her denial of the U.S.’s motion to have the Agreement modified. However, the Court of Appeals reversed Judge Gee’s holding to the extent that it might create a new duty for the U.S to release the parents of accompanied minors. 828 F.3d 898 (9th Cir. July 06, 2016). The judgment took effect on August 30, 2016. (Judge Gee would later respond to the Ninth Circuit’s holding by denying that she had intended to create affirmative rights for adults under the consent decree, and had merely intended to state that the U.S. should adhere to existing law and regulations in the Ninth Circuit on the subject of mandatory detention and bond hearings for detainees.)
Further proceedings continued in the district court, including a second motion to enforce that plaintiffs had filed on May 19, 2016. Plaintiffs alleged that the U.S., in defiance of Judge Gee’s summer 2015 holding, was still holding members of plaintiff class under conditions that violated the terms of the Agreement. They asked the Judge to issue an additional order requiring the U.S. to adhere to the terms of the Agreement, with the intention of making the U.S.’s obligations under the settlement Agreement more clear. They also asked for a special monitor to be appointed to oversee the U.S.’s compliance with the terms of the Agreement.
During a July 22, 2016 status conference, Judge Gee gave the parties until August 19 to conduct additional settlement negotiations before Judge George H. King, the Chief Judge of the Central District of California. The parties filed a joint status report on July 29, 2016, indicating that they remained at odds on what scope of discovery was appropriate at that stage of proceedings. On August 12, 2016, the plaintiffs filed a motion to enforce the Agreement; a hearing on the motion was scheduled for September 16. On September 7, the defendants filed a motion for an evidentiary hearing; a hearing was scheduled for October 6.
The parties had not reached a settlement by September 15, 2016. After oral argument on September 16 and a joint status report on September 26, the parties returned for oral argument on October 6. Judge Gee then scheduled an evidentiary hearing for January 30, 2017 on the issues of whether conditions at CBP facilities violate the Agreement, whether the Agreement requires defendants to make and record efforts to release minors from custody separate from the accompanying parent under certain circumstances, whether keeping minors in ICE Family Residential Centers for over 20 days violates the Agreement, and whether defendants have violated the Agreement by transferring minors who are represented by counsel without advance notice to their counsel.
After briefing, on January 20, 2017, Judge Gee issued an order that the defendants were in breach of the Flores Agreement, by denying minors in removal proceedings the right to a bond redetermination hearing before an Immigration Judge in every case. Judge Gee disagreed with defendants' argument that the 2002 Homeland Security Act and 2008 Trafficking Victims Protection Reauthorization Act superseded the bond-hearing provision of the Flores Agreement. Rather, Judge Gee agreed with the plaintiffs that savings clauses of these statutes preserve the relevant provision of the Agreement, which provides a right to bond hearings not addressed by the HSA or TVPRA. Consequently, Judge Gee granted the plaintiffs' motion to enforce HHS's compliance with the bond-hearing provision of the Flores Agreement.
After issuing an order (dated January 24, 2017) sustaining many of the defendants' evidentiary objections and overruling a few, on January 30, 2017, the Court held an evidentiary hearing on the plaintiffs' May 19, 2016 motion to enforce the Agreement. On February 6, 2017, plaintiffs briefed relevant issues, asserting that defendants were not required to place class members in expedited removal proceedings or subject them to "mandatory detention," and that an expedited removal order is not a final order of deportation or exclusion.
In the meantime, on January 25, 2017, the defendants filed an application for a stay of the Court's January 20 order enforcing the bond-hearing provision of the Flores Agreement, pending appeal authorization. Judge Gee denied the stay on February 3, 2017. Defendants filed their notice of appeal on February 17, 2017, and sought an "emergency" stay pending resolution of the appeal from the 9th Circuit Court of Appeals. The defendants argued that by mandating bond hearings for unaccompanied immigrant minors in HHS custody, the District Court's order infringed on HHS's statutory directive and implementing guidance, placed extra-statutory burdens on EOIR's Immigration Courts, and conflicted with BIA and Ninth Circuit precedent. Plaintiffs briefed their opposition to the motion on February 20, and defendants replied on February 22. The court's motions panel--Judges Clifton, Canby, and Friedland--on February 24, 2017 granted defendants' motion for a stay, expressing no view on the merits, but finding that defendants had established a sufficient showing of irreparable harm. The motions panel set a briefing schedule and calendared the case before a randomly selected panel in April 2017.
The case is ongoing.Mike Fagan - 07/02/2008
Sarah Prout - 09/17/2015
Ryan Berry - 08/09/2016
Ava Morgenstern - 02/24/2017