FOR

FOR PUBLICATION
PUBLICATION

UNITED STATES
UNITED STATES COURT
COURT OF
OF APPEALS
APPEALS

FOR THE
FOR THE NINTH
NINTH CIRCUIT
CIRCUIT

JJENNY
ENNY LISETTE
LISETTE FLORES:
FLORES, No. 15-56434
No. 15-56434
Plaintiff-App ellee:
Plaintiff-Appellee,
D.C. No.
v. 2:85-cv-04544-
2:85-cv-04544-
DMG-AGR
DMG-AGR
LLORETTA
ORETTA E. E. LYVCH:
LYNCH, Attorney
Attorney
General, Attomey
General, General of
Attorney General of
the United States; JEH JOHNSON,
the United States; JEH JOHNSON, OPINION
OPINION
Secretary of
Secretary of Homeland
Homeland
Security: US.
Security; U.S. D DEPARTMENT
EPARTMENT O OFF
HHONEL.•n
OMELAND S SECURITY:
ECURITY, and and its
its
subordinate entities;
subordinate entities; U.S. US.
InnvffGRATION
MMIGRATION AND C CUSTOMS
USTOMS
EENFORCEMENT;
NFORCEMENT; U.S. U S. CCUSTOMS
USTOMS
AND BORDER PROTECTION:
AND BORDER PROTECTION,
Defendants-Appellants.
Defendants-Appellants.

Appeal from the

Appeal from the United States District
United States District Court
Court
for the
for the Central
Central District
District ofof California
Califomia

Dolly M.
Dolly Gee, District
M. Gee, District Judge,
Judge, Presiding
Presiding

Argued and
Argued and Submitted
Submitted June
June 7,
7, 2016
2016
Pasadena: Califomia
Pasadena, California

Filed
Filed July 6, 2016
July 6, 2016

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Before:
Before: Ronald
Ronald M. Gould: Michael
M. Gould, Michael J.
J. Melloy*,
Melloy*,
and Andrew
and Andrew D
D._Humvitz, Circuit Judges.
Hurwitz, Circuit Judges.

Opinion by
Opinion by Judge
Judge Hurwitz
Hurwitz

SUMMARY"
SUMMARY **

Immigration
Immigration

The panel affirmed

The panel affirmed in part and
in part and rewersed in part
reversed in part the
the
district court’s
district court's order
order granting the motion
granting the motion of
of a
a plaintiff
plaintiff class
class
to enforce
to enforce aa 1997
1997 Settlement
Settlement with
with the government which
the government set
which set
a
a natiomvide
nationwide policy for the
policy for the detention,
detention: release: and treatment
release, and treatment
of minors
of detained in
minors detained in Immigration
Immigration and and Naturalization
Naturalization
Service custody,
Service custody, and
and remanded
remanded forfor further
åurther proceedings.
proceedings.
The
The panel
panel held
held that
that the Settlement unambiguously
the Settlement unambiguously
applies both to minors who are accompanied
applies both to minors who are accompanied and and
unaccompanied
unaccompanied by their parents.
by their The panel
parents. The held: however,
panel held, however,
that the distfict coun erred in interpreting the Settlement
that the district court erred in interpreting the Settlement to to
provide release rights to accompanying adults.
provide release rights to accompanying adults. The panel The panel
also held that
also held that the
the district
distfict coun did
court did not abuse its
not abuse its discretion
discretion in
in
denying
denying the
the government:
government’ss motion
motion to amend the
to amend Settlement.
the Settlement.

* The Honorable Mlchael J_Melloy: Senior Circuit Judge for the U.S.
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals
Court of Appeals for
for the
the Eighth Circuit, sittmg
Eighth Circuit, by designation.
sitting by designation.

** This summary constitutes no pan ofthe opinion of the court

This summary constitutes no part of the opinion of the court. ItIt has
has
been prepared
prepared by
by court staff for
court staff for the convenience
convenience of
of the
the reader.
reader.

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3

COUNSEL
COUNSEL

Leon Fresco
Leon (argued), Deputy
Fresco (argued), Deputy Assistant
Assistant Attomey General;
Attorney General;
Sarah B. Fabian: Senior Litigation Counsel; William
Sarah B. Fabian, Senior Litigation Counsel; William C. C
Peachey: Director:
Peachey, District
Director, District Court Section;
Court Section; Benjamin
Benjamin C.
Mizer: Principal Deputy Assistant Attomey General:
Mizer, Principal Deputy Assistant Attorney General, CivilCivil
Division;
Division; United States Department
United States Department of
of Justice,
Justice: Office
Office of
of
Immigration Litigation: Washington, D.C_; for Defendants-
Immigration Litigation, Washington, D.C.; for Defendants-
Appellants.
Appellants.

Peter
Peter Anthony Schey (argued)
Anthony Schey and Carlos
(argued) and Carlos R. Holguin:
R. Holguin,
Center for Human
Center for Human Rights Constitutional
Rights and Constitutional Law:
Law, Los
Los
Angeles, Califomia; T _ Wayne Harman and Elena
Angeles, California; T. Wayne Harman and Elena Garcia, Garcia,
OITick,
Orrick, Herrington
Herrington & Sutcliffe
& Sutcliffe LLP,
LLP, Los Angeles:
Los Angeles,
Califomia; for Plaintiff-Appellee.
California; for Plaintiff-Appellee_

OPINION
OPINION

HURWITZ, Circuit Judge:

HURWITZ, Circuit Judge:

In 1997 the
In 1997, plaintiff class
the plaintiff class (“Flores”)
("Flores) and the
and the government
government
entered into a
entered into a settlement
settlement agreement
agreement (the ' 'Settlement")
(the “Settlement”)
ivhich
which '“sets
'sets out
out nationwide
nationwide policy
policy for
for the
the detention,
detention, release,
release,
and
and treatment of minors
treatment of in the
minors in the custody of the
custody of INS.
the INS.”
Settlement 9. The Settlement creates a presumption
Settlement ¶ 9. The Settlement creates a presumption in in
favor of releasing
favor of releasing minors and requires
minors and requires placement
placement of
of those
those
not
not released in licensed,
released in licensed, non-secure
non-secure facilities
facilities that meet
that meet
certain standards
certain standards._

In 2014, in
In 2014, in response
response toto aa surge
surge of Central Americans
of Central Americans
attempting to enter the United States without documentation:
attempting to enter the United States without documentation,
the government opened
the government opened family
family detention
detention centers
centers in Texas
in Texas
and
and New Mexico. The detention and release policies at these
New Mexico. The detention and release policies at these
centers do not
centers do comply with
not comply with the Settlement The
the Settlement. The government,
government:

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however:
however, claims
claims that
that the
the Settlement
Settlement only applies
only applies to
to
unaccompanied
unaccompanied minors
minors and is is not violated when
not violated ivhen minors
minors
accompanied
accompanied byby parents or other
parents or other adult
adult family
family members
members are
are
placed in these centers.
placed in these centers.

In 2015, Flores
In 2015, moved to
Flores moved enforce the
to enforce Settlement, arguing
the Settlement, arguing
that it applied to all minors m the custody of immigration
that it applied to all minors in the custody of immigration
authorities. The
authorities. district court
The district court agreed: granted the
agreed, granted the motion to
motion to
enforce: and rejected the government: s altemative motion
enforce, and rejected the government’s alternative motion to to
modiö' the
modify Settlement _ The
the Settlement. The court ordered the
court ordered government
the government
to: (1) make
to: (1) ' 'prompt and
make “prompt and continuous
continuous efforts
efforts toward
toward family
family
reunification," (2) release class members
reunification,” (2) release class members without without
unnecessary delay,
unnecessary delay: (3)
(3) detain
detain class members in appropriate
members in appropriate
facilities:
facilities, (4) release an accompanying parent when releasing
(4) release an accompanying parent when releasing
aa child
child unless the parent
unless the parent is
is subject
subject to
to mandatory detention or
mandatory detention or
poses
poses aa safety
safety risk
risk or
or aa significant
significant flight
flight risk,
risk: (5)
(5) monitor
monitor
compliance with detention
compliance with detention conditions,
conditions: andand (6)
(6) provide
provide class
class
counsel
counsel with monthly
with monthly statistical
statistical information.
information. The
The
government appealed, challenging
government appealed, challenging the district
the district court's
court’s
holding
holding that
that the Settlement
the Settlement applied to
applied all minors
to all minors in in
Immigration
immigration custody:
custody, its order to
its order release parents,
to release and its
parents, and its
denial
denial of
of the motion to
the motion modiö,•
to modify.

Although
Although the issues underlying
the issues underlying this appeal touch
this appeal touch on on
matters of national
matters of importance, our
national importance, our task is straightforward—
task is straightforward—
we
we must interpret the
must interpret the Settlement.
Settlement. Applying familiar
Applying familiar
principles of contract
principles of contract interpretation,
interpretation: we conclude that
we conclude that the
the
Settlement unarnbiguously applies both to accompanied
Settlement unambiguously applies both to accompanied and and
unaccompanied
unaccompanied minors,minors: but
but does notnot create
create affirmative
affirmative
release
release rights for parents. We therefore affirm the
rights for parents. We therefore affirm district
the district
court in part,
court in part, reverse
reverse in
in part, and remand.
part, and remand.

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BACKGROUND
BACKGROUND
I.
I. History of the
History of the Litigation
Litigation
In 1984,
In 1984, the Westem Region
the Western Region of
of the Immigration
the Immigration and
and
Naturalization Service ("I-XTS') adopted a policy prohibiting
Naturalization Service (“INS”) adopted a policy prohibiting
the release
the of detained
release of detained minors
minors to anyone other
to anyone other than "a parent
than “a parent
or lau.•ftl guardian: except in unusual and extraordinary
or lawful guardian, except in unusual and extraordinary
cases."
cases.” Reno
Reno v. Flores: 507 U_S_
Flores, 507 292: 296
U.S. 292, 296 (1993) (quotation
(1993) (quotation
marks omitted). The next year, Flores filed this action
marks omitted). The next year, Flores filed this action in in the
the
Central
Central District of California,
District of California, challenging that policy
challenging that and the
policy and the
conditions
conditions under
under ivhich
which juveniles were detained
juveniles were detained pursuant
pursuant to
to
the policy. ld.
the policy. Id.
In 1986, the
In 1986, district coun
the district court cenified
certified two classes:
two classes:
1_All
1. All persons
persons under the age
under the age of eighteen (18)
of eighteen (18)
years who have
years who have been,
been: are:
are, or will be
or will be arrested
alTested
and
and detained pursuant to 8 U.S.C. § 1252 by
detained pursuant to S U.S.C_ S 1252 by
the
the Immigration
Immigration and and Naturalization
Naturalization Service
Service
("INS')
(“INS”) within
within the INS' Western
the INS’ Westem Region
Region and
and
u.•ho
who have been: are:
have been, or will
are, or will be
be denied
denied release
release
from INS custody because a parent
from INS custody because a parent or legal or legal
guardian fails to
guardian fails to personally appear to
personally appear to take
take
custody
custody of of them.
them

2. All
All persons
persons under the age of
under the of eighteen
eighteen (18)
(18)
years who
years who have
have been,
been: are:
are, or will be
or will be arrested
alTested
and detained pursuant
and detained pursuant to
to 8S U.S.C.
U.S.C_ § S 1252
1252 by
by
the Immigration
the Naturalization
Immigration and Naturalization Service
Service
("INS') within the INS' Westem Region
(“INS”) within the INS’ Western Region and and
u.•ho have
who have been, are: or
been, are, or will
will be subjected
subjected to
to
any of the following conditions:
any of the following conditions:
a.
a. inadequate
inadequate opportunities
opportunities for
for
exercise or recreation;
exercise or recreation;

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6 FLORES
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inadequate educational
b. inadequate educational instruction;
instruction;

inadequate reading
c. inadequate reading materials;
materials;

d. inadequate opportunities
inadequate opportunities for
for
visitation with counsel, family:
visitation with counsel, family,
and
and friends;
friends;

e. regular contact as
regular contact as a a result
result of of
confinement with adult detainees
confinement with adult detainees
unrelated
unrelated to to such
such minors
minors either
either byby
blood,
blood, marriage,
marriage, or otherwise;
or otherwise;
f
f. strip or
strip body cavity
or body cavity search
search after
after
meeting with counsel
meeting with counsel or at anyor at any
other
other time
time or or occasion
occasion absent
absent
demonstrable adequate
demonstrable adequate cause. cause.

In 1987, the
In 1987, coun approved
the court approved a
a consent
consent decree
decree settling
settling the
the
detention
detention condition
condition claims.
claims. Id That agreement
Id. That agreement required
required the
the
government to
government "house all
to “house all juveniles
juveniles detained more than
detained more 72
than 72
hours following arrest
hours following arrest in
in aa facility
facility that
that meets or exceeds”
meets or exceeds"
certain standards,
certain standards, except
except inin “unusual
"unusual and
and extraordinary
extraordinary
circumstances.”
circumstances

The district court

The district court then granted the
then granted the Flores class partial
Flores class partial
summary judgment
summary judgment on on the claim that
the claim the INS
that the INS violated
violated the
the
Equal
Equal Protection
Protection ClauseClause by by treating
treating alien
alien minors
minors in in
deportation proceedings differently
deportation proceedings differently from alien
from alien minors
minors in in
exclusion proceedings, the latter of whom
exclusion proceedings, the latter of whom were sometimes were sometimes
released
released to to adults
adults other
other than
than their
their parents.
parents. ld. Id. In In response,
response,
the INS adopted a rule allowing juveniles to be released to
the INS adopted a rule allowing juveniles to be released to
their parents:
their parents, adultadult relatives:
relatives, or or custodians designated by
custodians designated by
their parents;
their parents; if if no
no adult
adult relative
relative waswas available,
available: thethe rule gave
rule gave
the INS discretion to release a detained relative with the
the INS discretion to release a detained relative with the
child. Id at 296—97; see Detention and Release
child. Id. at 296–97; see Detention and Release of Juveniles, of Juveniles,

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7

53 Fed.
53 Fed. Reg. 17449: 17451
Reg. 17449, 17451 (1988)
(1988) (now
(now codified, as
codified, as
amended,
amended, at 8S C.F.R_ 236_3)_ The
C.F.R. § 236.3). The Supreme
Supreme Court
Court upheld
upheld
the INS rule
the INS rule against
against Flores’
Flores' facial
facial Due
Due Process challenge.
Process challenge.
Flores: 507 U.S.
Flores, 507 US. at
at 315.
315.

II.
II. The Settlement
The Settlement
In 1997, the
In 1997, the district court approved
district court approved the Settlement. The
the Settlement. The
Settlement defines
Settlement defines a “minor”
' 'minor" as “any "any person
person under
under the the age
of eighteen (18) years who is detained in
of eighteen (18) years who is detained in the legal custody the legal custody
of
of thethe INS,”
INS:" except
except for for “an
"an emancipated
emancipated minor minor or or anan
individual who has been incarcerated due
individual who has been incarcerated due to a conviction forto a conviction for
a criminal
a criminal offense
offense as an
as an adult" Settlement
adult.” Settlement ¶ 4.4. The
The
Settlement defines
Settlement defines thethe contracting
contracting class similarly: as “[a]ll
class similarly, "[a]ll
minors
minors who are detained
who are detained in in the legal custody
the legal custody of of the
the INS."
INS.”
Id'10_
Id. ¶ 10.

The Settlement provides

The Settlement provides that "[w]henever the
that “[w]henever the INS
INS takes
takes
a
a minor into custody,
minor into custody: it
it shall
shall expeditiously
expeditiously process
process the minor
the minor
and shall provide
and shall provide the minor with
the minor with aa notice
notice ofof rights.”
rights." ld.
Id. ¶
12(A)_ “Following
12(A). "Following arrest: the
arrest, INS shall
the INS shall hold
hold minors
minors in in
facilities that are safe and sanitary and that are consistent
facilities that are safe and sanitary and that are consistent
u.ith the
with INS's concern
the INS’s concem forfor the
the particular
particular vulnerability of
vulnerability of
minors."
minors.” ld.
Id. Within five days
Within five days of
of arrest,
alTest: the INS must
the INS must
transfer
transfer the
the minor
minor to
to a non-secure:
non-secure, licensed facility; but
licensed facility; "in
but “in
the event of
the event of an
an emergency
emergency or influx of
or influx of minors into the
minors into the United
United
States," the
States,” the INS
INS need
need only
only make
make the
the transfer
transfer “as "as
expeditiously
expeditiously as
as possible."
possible.” ld.
Id.
The Settlement creates
The Settlement creates a
a presumption in favor
presumption in favor of
of release
release
and
and favors
favors family reunification:
family reunification:
Where
Where thethe INS determines
INS determines that
that the detention
the detention
of the minor
of the minor ISis not required either
not required either to secure
to secure
his or her timely appearance before
his or her timely appearance before the INS the INS
or
or the immigration court, or to ensure the
the immigration court, or to ensure the

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minor'
minor’ss safety
safety or
or that of others,
that of others, the
the INS
INS shall
shall
release a minor
release from its
minor from its custody
custody without
without
unnecessary delay,
unnecessary in the
delay, in following order
the following order of
of
preference: to:
preference, to:
A. a parent;
A. parent;

B. aa legal
legal guardian;
guardian;

C. an adult
adult relative
relative (brother, sister, aunt,
(brother, sister, aunt,
uncle, or grandparent):
uncle, or grandparent);
an
D. an adult
adult individual
individual or or entity
entity
designated by the parent or legal
designated by the parent or legal
guardian . . .

licensed program
E. a licensed
E. program willing
willing to accept
to accept
legal custody: or
legal custody; or
F.
F. an adult
an adult individual
individual or
or entity
entity seeking
seeking
custody _
custody . . .
Id
Id. 14; see
¶ 14; also id.
see also id. ¶ 18
IS (requiring "prompt and
(requiring “prompt and continuous
continuous
effons ._ ._ ._toward
efforts family reunification
toward family reunification andand the release of
the release of the
the
minor").
minor”). But, if the
But, if the INS
INS does
does not release a
not release a minor:
minor, it it must
must
place her
place her in in a
a “licensed
' 'licensed program."
program.” ld. 19. A
Id. ¶ 19. "licensed
A “licensed
program" is one
program” one “licensed
'licensed by by an appropriate
appropriate State State agency
agency to to
provide residential,
provide group: or
residential, group, or foster
foster carecare services
services for for
dependent children,”
dependent children: whichwhich must
must be ' 'non-secure as required
be “non-secure required
under state
under state law”
law" and
and meet
meet the standards
the standards set fonh
set forth inin an
an exhibit
exhibit

attached to the Settlement ld. '16. Those

attached to the Settlement. Id. ¶ 6. Those standards include standards include
food: clothing,
food, clothing: grooming
grooming items,items: medical
medical and and dental
dental care,
care,
individualized needs assessments:
individualized needs assessments, educational services, educational services,
recreation and leisure
recreation leisure time, counseling: access to
time, counseling, to religious
religious
services, contact with family members:
services, contact with family members, and a reasonable and a reasonable
right to
right to privacy.
privacy. Some Some minors:
minors, such such as as those
those whowho havehave

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9

committed crimes, may

committed crimes, may be
be held in a
held in a juvenile detention
juvenile detention
facility
facility instead ofaa licensed
instead of licensed program.
program. ld.
Id. ¶ 21.
21.
The Settlement generally
The Settlement generally provides for the
provides for the enforcement
enforcement
in
in the Central District
the Central Distfict of California,
of Califomia: id.
id. 37: but
¶ 37, but allows
allows
individual challenges
individual challenges to placement or
to placement or detention conditions
detention conditions
to be brought in any district coun Mith
to be brought in any district court with jurisdiction andjurisdiction and
venue, id.
venue, id. ¶ 24(B).
24(B)_ The Settlement originally
The Settlement originally was
was to to
terminate no later than 2002. ld. 40. But:
terminate no later than 2002. Id. ¶ 40. But, in 2001, the in 2001, the
parties stipulated
parties stipulated that
that the Settlement would
the Settlement would terminate
terminate “45"45
days following defendants' publication of final
days following defendants’ publication of final regulations regulations
implementing this
implementing this Agreement."
Agreement.” The The government
government has has not
not yet
yet
promulgated those
promulgated those regulations.
regulations.
111.
III. Developments
Developments Subsequent to
Subsequent the Settlement
to the Settlement

Before 2001,
Before 2001, “families
' 'families apprehended
apprehended for
for entering
entering the
the
United States
United States illegally
illegally were most often
were most often released
released rather
rather than
than
detained because
detained because ofof a a limited
limited amount
amount ofof family
family bed
bed space;
space;
families who
families who were were detained
detained had
had to be housed
to be housed separately,
separately,
splitting
splitting up parents
up parents andand children."
children.” Buni/cyte
Bunikyte ex ex rel.
rel.
Bumikiene v. Chertoff No. 1:07-cv-00164-ss:
Bunikiene v. Chertoff, No. 1:07-cv-00164-SS, 2007 WL 2007 WL
1074070: at *1 (W.D.
1074070, (WD_ Tex. Apr. Apr. 9, 2007).
2007). “In "In the
the wake ofof
September
September 11, 2001,
11, 2001, however, immigration
however, immigration policy
policy
ftndamentally
fundamentally changed: with “more
changed,” "more restrictive
restrictive immigration
immigration
controls:
controls, tougher enforcement,
tougher enforcement: and broader
and broader expedited
expedited
removal of illegal aliens:" ivhich "made
removal of illegal aliens,” which “made the automatic the automatic
release of
release of families
families problematic."
problematic.” ld.Id.
In 2001,
In 2001, the the INSINS convened
converted aa nursing
nursing home home in in Berks
Berks
County,
County, Pennsylvania
Pennsylvania ("Berks')
(“Berks”) into its
into its first
first family
family
detention center. ld. Because Pennsylvania
detention center. Id. Because Pennsylvania has no licensing has no licensing
requirements for
requirements for family
family residential care facilities,
residential care facilities: Berks
Berks has
has
been monitored and licensed by state authorities under the
been monitored and licensed by state authorities under the
state standards
state standards applicable
applicable to child residential
to child residential and and dayday
treatment
treatment facilities.
facilities. ld.
Id. atat *8.

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In
In 2002, Congress enacted
2002, Congress enacted the Homeland Security
the Homeland Security Act:
Act,
Pub. L. No.
Pub. L. 107-296: 116
No. 107-296, 116 Stat.
Stat 2135,
2135: abolishing the INSINS and
and
transferring most of
transferring most of its immigration functions
its immigration ftnctions toto the
the newly-
newly-
formed Department of Homeland Security
formed Department of Homeland Security (“DHS”), in ("DHS"): in
ivhich
which Immigration
Immigration and and Customs
Customs Enforcement ("ICE")
Enforcement (“ICE”) is
housed. 6 U.S.C_ 111 : 251, 291. The Homeland
housed. 6 U.S.C. §§ 111, 251, 291. The Homeland Security Security
Act transferred responsibility
Act transferred responsibility for the
for the care
care and custody
custody ofof
unaccompanied alien children to the Office
unaccompanied alien children to the Office of Refugee of Reåugee
Resettlement
Resettlement in in the
the Department
Department of of Health
Health andand Human
Human
Services 6 2796):
Services. 6 U.S.C. § 279(a), (b)(1)(A), (g)(2).
In 2006: DHS
In 2006, DHS convened
converted aa medium security prison
medium security prison in
in
Taylor,
Taylor, Texas
Texas into its second
into its second family
family detention
detention facility,
facility, the
the
Don T. Hutto Family Residential Center
Don T. Hutto Family Residential Center (“Hutto”). ("Hutto")
Bunikyte, 2007 WL 1074070: at
WL 1074070, at *1. In
In 2007:
2007, three children
three children
at
at Hutto:
Hutto, who
who were not represented
were not represented byby Flores' class counsel,
Flores’ class counsel,
filed suit
filed suit in the Western
in the Westem District of Texas:
District of contending that
Texas, contending that
the conditions
the conditions at Hutto
at violated
Hutto violated the Settlement.
the Settlement. ld.
Id. atat *1–2.
*1—2

In response: the
In response, government argued
the government argued that that the Settlement
the Settlement
applied
applied only to unaccompanied minors. The district court
only to unaccompanied minors. The district court
rejected
rejected that argument: holding
that argument, holding that that “by"by its terms, [the
its terms, [the
Settlement] applies
Settlement] applies to all ‘minors
to all 'minors m in the custody: of
the custody’ of ICE
ICE andand
DHS:
DHS, not not just unaccompanied minors.”
just unaccompanied minors." ld. *2—3 (quoting
Id. at *2–3 (quoting
Settlement ¶ 9).
Settlement 9). TheThe coun then concluded
court then concluded that the minors
that the minors’
confinement at Hutto violated the
confinement at Hutto violated the Settlement’s detention Settlement's detention

standards, id.
standards, id. at *6–15,
*6—15: but but rejected
rejected the claim that
the claim that thethe
Settlement entitled the plaintiffs
Settlement entitled the plaintiffs to have their parents to have their parents
released
released with u.ith them:
them, id. id atat *16.
*16. TheThe suit
suit settled
settled before
before trial.
trial.
In
In re Hutto Family Det. Ctr., No. 1:07-cv-00164-SS, Dkt_
re Hutto Family Det. ctr.: No. 1:07-cv-00164-ss, Dkt.
94:
94, (WD.
(W.D. Tex.Tex. Aug.Aug. 26, 26, 2007).
2007).

In
In 2008, Congress enacted
2008, Congress enacted the
the William Wilberforce
William Wilberforce
Trafficking
Trafficking Victims Protection Reauthorization Act
V ictims Protection Reauthorization of 2008
Act of 2008
("TVPRA"),
(“TVPRA”), Pub.Pub. LL. No. 110-457:
No. 110-457, 122 Stat.
122 Stat. 5044
5044
(principally codified in relevant part at S 1232).
(principally codified in relevant part at 8 U.S.C. § 1232).

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TN'?RA
TVPRA partially
partially codified
codified the Settlement
the Settlement by creating
by creating
statutory standards
statutory standards for for the
the treatment
treatment of of unaccompanied
unaccompanied
minors.
minors. See, e.g.: 8
See, e.g., 8 U.S.C.
U.S_C_ § 1232(c)(2)(A)
1232(c)(2)(A) (an
(an
unaccompanied
unaccompanied alien child “shall be promptly placed in the
alien child ' 'shall be promptly placed in the
least restrictive setting
least restrictive setting that
that is in in the
the best interest of
best interest of the
the
child," subject to
child,” subject considerations of
to considerations of flight
flight and
and danger).
danger).

IV.
IV. The Enforcement
The Enforcement Action and R.I.L-R
Action and v. Johnson
R.I.L-R v. Johnson
In 2014, a
In 2014, surge of
a surge of undocumented
undocumented Central
Central Americans
Americans
arrived at the
arrived at the U.S.-Mexico border. In response:
border. In ICE opened
response, ICE opened
family detention centers
family detention centers in
in Karnes
Karnes City and Dilley:
City and Texas,
Dilley, Texas,
and
and Artesia, New Mexico.
Artesia, New It closed
Mexico. It closed the
the Artesia center later
Artesia center later
that year _ The
that year. The detention
detention centers operate under
centers operate under ICE’s
ICE's Family
Family
Residential
Residential Detention Standards, which do not comply with
Detention Standards, which do not comply with
the Settlement.
the Settlement.

In
In January
January 2015
2015, aa group
group of
of Central
Central American migrants,
American migrants,
who
who were
were not represented by
not represented by Flores class counsel,
Flores class counsel, filed
filed aa
putative
putative class action: claiming
class action, claiming that
that the
the government
government hadhad
adopted
adopted aa no-release
no-release policy as to
policy as to Central
Central American families,
American families,
and
and challenging that alleged policy under the Due Process
challenging that alleged policy under the Due Process
Clause.
Clause. R.I.L-Rv.
R.I.L-R v. Johnson: SOF.
Johnson, 80 supp. 3d
F. Supp. 3d 164,
164: 170 (D.D.C.
(DD C
2015). On February
2015). On 20, 2015,
February 20, 2015: the
the U.S.
US. District
District Court
Court for
for the
the
District of Columbia
District of Columbia granted
granted thethe plaintiffs'
plaintiffs’ motion for a
motion for
preliminary injunction. ld.
preliminary injunction. at 171.
Id. at 171 _ The
The court
coun found
found that
that ICE
ICE
had not adopted a blanket no-release policy: but found
had not adopted a blanket no-release policy, but found ample ample
support for
support for the plaintiffs'
the plaintiffs’ contention that
alternative contention that “DHS
' 'DHS
policy
policy directs ICE officers to consider deterrence of mass
directs ICE officers to consider deteffence of mass
migration
migration as aa factor
factor in
in their
their custody
custody determinations,
determinations: and
and
that this policy has played a significant role in the
that this policy has played a significant role in the recent recent
Increased detention
increased detention of
of Central
Central Amencan
American mothers
mothers andand

children."
children.” ld.
Id. at 174. The
at 174. The court
coun preliminarily enjoined the
preliminarily enjoined the
government from using deterrence as
government from using deterrence as a factor in a factor in detaining
detaining
class
class members.
members. R.I.L-RR.I.L-R v.v. Johnson,
Johnson, No. 1:15-cv-00011-
No. 1:15-cv-00011-
JEB: Dkt_ 32 (DD C Feb. 20:
JEB, Dkt. 32 (D.D.C. Feb. 20, 2015). 2015)

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In May 2015,
In May 2015: the government notified
the government the court
notified the court that it
that it
had decided
had decided “to "to discontinue,
discontinue, this time,
at this time: invoking
invoking
deterrence as
deterrence as aa factor
factor inin custody determinations in
custody determinations in all
all cases
cases
involving families, irrespective of the outcome
involving families, irrespective of the outcome of this of this
litigation:
litigation,” while maintaining
while maintaining that it could
that it lawftlly reinstate
could lawfully reinstate
the policy. ld. Dkt_ 40. In June 2015: by the agreement
the policy. Id. Dkt. 40. In June 2015, by the agreement of of
the parties,
the parties, the district court
the district court inin R.I.L-R dissolved the
R.I.L-R dissolved the
preliminary injunction and closed the
preliminary injunction and closed the case, allowing case, allowing
plaintiffs to
plaintiffs move to
to move to reinstate
reinstate the preliminary injunction
the preliminary injunction if if
the government
the government again invoked
again invoked deterrence in
deterrence in custody
custody
determinations. ld. Dkt_
determinations. Id. Dkt. 43.43.

Meanwhile, on
Meanwhile, on February
February 2, 2015, 2015, Flores
Flores filed motion
filed a motion
in the U.S. District Court for
in the U.S. District Court for the Central District of the Central District of

Califomia to
California enforce the
to enforce Settlement, arguing
the Settlement, arguing that that ICE
ICE had had
breached it by (1) adopting
breached it by (1) adopting a no-release policy, anda no-release policy: and
(2) confining
(2) confining children
children in in the secure: unlicensed
the secure, unlicensed facilities
facilities at at
Dilley and Karnes. 1 The government
Dilley and Karnes. The government argued in response that argued in response that
the Settlement does
the Settlement does not apply to
not apply accompanied minors:
to accompanied minors, and and
filed an alternative motion to amend
filed an alternative motion to amend the Settlement to so the Settlement to so

provide.
provide. On On July
July 24,24: 2015,
2015: the district court
the district granted Flores’
court granted Flores'
motion: denied the
motion, denied the government’s
government' s motion motion to amend: and
to amend, and alsoalso
held
held thatthat the Settlement requires
the Settlement requires release
release of of a minor's
minor’s
accompanymg
accompanying parent: parent, “as' 'as long
long as as doing
doing so so would
would not not create
create
a flight risk or a safety risk.” On August 21, 2015, the
a flight risk or a safety risk "22 On August 21, 2015, the
district court
district coun filed
filed a remedial
remedial order.order. The government timely
The government timely
appealed. We
appealed. We have
have jurisdiction
jurisdiction under under 28 28 U.SU.S.C.C. § 1292.
1292.

I1 Flores
Flores also arguedthat
also argued the government
that the governmentbreachedParagraph12(A) by
breached Paragraph 12(A) by
exposing children in
exposing children in temporary
temporary Border
Border Patrol
Patrol custody
custody to "harsb
to “harsh,
substandard" conditions. That issue is not implicated in this appeal.
substandard” conditions. That issue is not implicated in this appeal.

2The
2 casewas
The case was reassigned
reassigned to
to JudgeDolly M. Gee,because
Judge Dolly M. Gee, because the original
the original
judge,
judge, Robert
Robert J_Kelleher,
J. Kelleher, had died.
had died.

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STANDARD OF REVIEW
STANDARD OF REVIEW
The Settlement
The Settlement is a
is a consent
consent decree,
decree, which,
which, “like"like aa
contract: must
contract, must bebe discerned
discemed Mithin
within its four corners,
its four corners, extrinsic
extrinsic
evidence being relevant only to resolve
evidence being relevant only to resolve ambiguity in ambiguity in the
the
decree." United
decree.” UnitedStates
States v. Asarco
Asarco Inc.: 430 F
Inc., 430 _3d 972:
F.3d 980 (9th
972, 980 (9th
Cir. 2005).
Cir. 2005). We We review
review the district court’s
the district coun's interpretation
interpretation of of
the contract
the contract de novo.novo. Miller
Miller v. v. Sqfeco Title Ins.
Safeco Title Co.,
Ins. Co.,
758 Fid 364: 367 (9th Cir. 1985). 'Motions
758 F.2d 364, 367 (9th Cir. 1985). “Motions for relief from forrelieffrom
judgment
judgment under under Rule
Rule 60(b)
60(b) areare reviewed
reviewed for for abuse
abuse of of
discretion." Asarco, 430 F_3d
discretion.” Asarco, 430 F.3d at 978. at 978

DISCUSSION
DISCUSSION
I. The
I. The Settlement
Settlement Applies
Applies to
to Accompanied Minors
Accompanied Minors
We agree
We agree with with the the district
district court
court thatthat "[t]he
“[t]he plainplain
anguage
language of
of the
the Agreement
Agreement clearly clearly encompasses
encompasses
accompanied minors.”
accompanied minors." First,
First, the Settlement defines
the Settlement defines minor
minor
as '“any
as 'any person
person underunder the the age
age ofof eighteen
eighteen (18) (18) years
years whowho is is
detained in the legal custody ofthe INS";
detained in the legal custody of the INS”; describes its scope describes its scope
as setting
as setting "nationwide
“nationwide policy policy forfor the detention: release,
the detention, release: and and
treatment of minors in the custody of
treatment of minors in the custody of the INS”; and defines the INS"; and defines
the class
the class as "[a]ll minors
as “[a]ll minors who who are detained
detained in in the
the legal
legal
custody of
custody of the
the INS." Settlement'lY4:
INS.” Settlement ¶¶ 4, 9, 9: 10.
10. Second,
Second, asthe
as the
district court
district court explained,
explained, “the "the Agreement
Agreement provides special
provides special
guidelines with
guidelines respect to
with respect to unaccompanied
unaccompanied minors minors in some
in some
situations," and "[i]t would make little
situations,” and “[i]t would make little sense to write rules sense to write rules
making special
making special reference
reference to to unaccompamed
unaccompanied minors minors ifif the the
parties intended the Agreement as a
parties intended the Agreement as a whole to be applicable whole to be applicable
only to
only unaccompanied minors."
to unaccompanied minors.” See id. id. ¶ 12(A)
12(A) (“The
("The INS INS
ivill segregate unaccompanied
will segregate unaccompanied minors from unrelated minors from unrelated
adults.
adults.”); id. ¶ 25
id. 25 (“Unaccompanied
("Unaccompanied minors arrested or
minors arrested or taken
taken
into custody by the INS should not be transported
into custody by the INS should not be transported by the INS by the INS
in vehicles with detained adults except . . . .”). Third, as the
in with detained adults except Third: as the
district court
district court reasoned,
reasoned, '“the 'the Agreement expressly identifies
Agreement expressly identifies

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those minors
those minors to whom
to whom the
the class
class definition
definition would
would not not
apply"—emancipated
apply”—emancipated minors minors and those those who who have been been
incarcerated
incarcerated for for a a criminal
criminal offense
offense as as an
an adult; ' '[h]ad the
adult; “[h]ad the
parties to the Agreement intended to exclude
parties to the Agreement intended to exclude accompanied accompanied
minors
minors from from the the Agreement:
Agreement, they they could
could havehave done done so
explicitly
explicitly when they set forth the definition of minors who
when they set forth the definition of minors who
are excluded from
are excluded from the Agreement."
the Agreement.” See id. id. ¶ 4.
4

The government nevertheless

The government nevertheless argues
argues that
that certain
certain terms
terms
of the Settlement
of the Settlement show
show that it
that it was never
was never meant
meant toto cover cover

accompanied
accompanied minors. minors. The Settlement
The Settlement definesdefines “licensed
"licensed
program"
program” as “any program, agency or organization that
as "any prograrn: agency or organization that isis
licensed
licensed by by an appropriate
appropriate State agency
State agency to to provide
provide
residential, group, or foster care
residential, group, or foster care services for dependent services for dependent
children:
children, including
including aa programprogram operating
operating groupgroup homes,
homes: fosterfoster
homes:
homes, or facilities for special needs minors.” Id. ¶ 6. The
or facilities for special needs minors." ld. 6. The
government
government contends contends that that thisthis makes
makes only only '“dependent
'dependent
minors" eligible for
minors” eligible for licensed
licensed programs;
programs; that Black's Law
that Black’s Law
Dictionary
Dictionary defines defines dependent
dependent minors
minors to exclude
to exclude
accompanied
accompanied minors: minors, see Chüd, Black's
see Child, Black’s Law Law Dictionary
Dictionary
(10th
(10th ed. 2014);2014); and and thatthat it it would
would makemake little
little sense for for the
the
Settlement to
Settlement to apply
apply to accompanied minors
to accompanied minors but but exclude
exclude them them
from licensed programs.
from licensed programs. We We reject
reject this argument
this argument. That
That a
program
program is is “licensed
'licensed . . . toto provide
provide . . . servicesservices for
for
dependent children" does not
dependent children” does not mean that only dependent mean that only dependent
children
children can be be placed
placed in in that program. And:
that program. And, the the definition
definition
of "licensed program" does not indicate
of “licensed program” does not indicate any intent to exclude any intent to exclude
accompanied
accompanied minors; rather its
minors; rather, its obvious
obvious purpose
purpose is to to use
use the
the
existing apparatus of state licensure to
existing apparatus of state licensure to independently review independently review
detention conditions
detention conditions. _

At oral argument,
At oral argument: the
the government cited a
government cited a provision
provision ofof
the Settlement requiring that: "[b]efore a minor is released
the Settlement requiring that, “[b]efore a minor is released
from INS
from INS custody
custody pursuant
pursuant toto Paragraph
Paragraph 1414 above,
above: the
the
custodian must execute an Affidavit of Support (Form I-
custodian must execute an Affidavit of Support (Form I-134)134)

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and an agreement
and an agreement to,"
to,” among
among other
other things: provide for
things, provide for the
the
minor's well-being
minor’s well-being ensure the
and ensure the minor's
minor’s presence
presence at
Immigration proceedmgs_
immigration Settlement ¶ 15.
proceedings. Settlement 15 _ The
The government
government
claims
claims thatthat thethe reference
reference toto the
the "custodian" demonstrates
“custodian” demonstrates
that the Settlement
that the Settlement did did not
not contemplate
contemplate releasing
releasing a childchild to
to
an accompanying parent. The government
an accompanying parent. The government is right in one is right in one
sense—the Settlement
sense—the Settlement does not contemplate releasing
not contemplate releasing a
child
child to a parent who remains in custody, because that
to a parent who remains in custody: because would
that would
not
not bebe aa '“release.”
'release." But: it makes
But, it makes perfect sense to
perfect sense to require
require anan
aunt who takes custody of a child to sign
aunt who takes custody of a child to sign an affidavit of an affidavit of
support, ivhether or not the child was
support, whether or not the child was arrested with his arrested with his
mother.
mother.
The government correctly
The government correctly notes
notes that the Settlement
that the Settlement does
does
not address the
not address the potentially
potentially complex issues
complex issues involving
involving the
the
housing of family
housing of family units
units and
and the scope of
the scope of parental
parental rights for
rights for
adults apprehended
adults apprehended with
with their children.
their children. For example,
For example,
Exhibit
Exhibit 1,1, which
which sets
sets forth
forth requirements
requirements for licensed
for licensed
programs: does
programs, does not contain standards
not contain standards related
related to
to the detention
the detention
of adults or family units. But: the fact that the parties
of adults or family units. But, the fact that the parties gave gave
inadequate
inadequate attention
attention to some potential
to some potential problems
problems ofof
accompanied minors
accompanied does not
minors does not mean that the
mean that Settlement does
the Settlement does
not apply
not apply to them. See
to them. See Buniö'te:
Bunikyte, 2007 WL 1074070,
2007 WL 1074070, at *3 *3
("Though it
(“Though it isis no defense that
no defense that the
the Flores Settlement is
Flores Settlement is
outdated: it is apparent that this agreement did not anticipate
outdated, it is apparent that this agreement did not anticipate
the
the current emphasis on family
current emphasis family detention.
detention. ._ ._ ._ Nonetheless,
Nonetheless,
the Flores Settlement: by its terms: applies to all 'minors in
the Flores Settlement, by its terms, applies to all ‘minors in
the custody' of
the custody’ of ICE
ICE and DHS,
DHS: notnot just
just unaccompanied
unaccompanied
minors.) (quoting Settlement 9); id. ("Paragraph
minors.”) (quoting Settlement ¶ 9); id. (“Paragraph 19 19 sets
sets
out the foundation
out the foundation of of the detention standards
the detention standards applicable
applicable to
to
any
any minor in United
minor in United States
States immigration
immigration custody,
custody: and
and there
there
is no reason why its requirements should
is no reason why its requirements should be any be any less
less
applicable in a family
applicable in family detention
detention context
context than
than in
in the context
the context
of unaccompanied minors _
of unaccompanied minors.”).

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The government next

The government next argues
argues that the Complaint
that the Complaint and
and
certified classes
certified classes were
were limited
limited toto unaccompanied
unaccompanied minors,
minors: and
and
that the
that the parties
parties therefore
therefore could not have
could not have entered
entered into
into aa
Settlement granting rights to accompanied minors.
Settlement granting rights to accompanied minors. To be To be
sure, this litigation initially
this litigation initially focused
focused on the problems facing
the problems facing
unaccompanied minors: who
unaccompanied minors, who then constituted 70% of then constituted 70% of
Immigrant
immigrant children children arrested
alTested by by thethe INS.
INS. See See Flores:
Flores,
507 U.S. at 295. But, the Complaint was not limited to
507 U.S. at 295. But: the Complaint was not limited to
unaccompanied
unaccompanied minors. minors. The conduct Flores
The conduct Flores challenged—
challenged—
INS detention conditions
INS detention conditions and and thethe Western
Western RegionRegion release release
policy—applied
policy—applied to accompanied and unaccompanied minors
to accompanied and unaccompanied minors
alike.
alike. See See Complaint
Complaint ¶ 50 (challenging(challenging the INS' '“policy
the INS’ 'policy to to
indefinitely jail juveniles: particularly
indefinitely jail juveniles, particularly those whose parents those whose parents
INS agents suspect
INS agents suspect may may be be aliens
aliens unlawfully
unlawfully in in the
the United
United
States, unless and until their parent
States, unless and until their parent or legal guardian or legal guardian
personally
personally appearsappears beforebefore an an INS
INS agent
agent forfor interrogation
interrogation and and
to accept physical custody of the minor.
to accept physical custody of the minor.”); id. ¶¶ 65, 70–79 id 65: 70—79
(challenging
(challenging juveniles' condition of
juveniles’ condition confinement
of confinement in INS
in INS
facilities: including the lack of education:
facilities, including the lack of education, recreation, and recreation: and
visitation:
visitation, and the imposition of
the imposition of strip
strip searches).
searches). So did did the
the
remedies
remedies soughtsought and and the classes the
the classes the district
district court
court certified.
certified.
See
See id.id at 29 ¶ 4 (requesting an order
4 (requesting order that
that the INS admit
the INS admit
juveniles
juveniles to bail without
to bail without requiring
requiring that that their parents or
their parents or legal
legal
guardians appear before INS
guardians appear before INS agents); Order re Class agents); Order re Class
Certification (certifying a class
Certification (certifying class forfor the
the release claims and
release claims and a
class for the detention conditions
class for the detention conditions claims). claims).

The government
The government has not explained why
not explained the detention
why the detention
claims
claims class would exclude accompanied minors; minors
class would exclude accompanied minors; minors
u.•ho arrive
who arrive with
with their parents are
their parents as desirous
are as desirous of education and
of education and
recreation: and as
recreation, and as averse
averse to strip searches,
to strip searches: as
as those
those who
•who come
come
alone. As for release: the govemment focuses narrowly
alone. As for release, the government focuses narrowly on on
the release class definition.
the release class definition. See Order
See Order re Class Certification
re Class Certification

at 2 (defining the release class to include all minors

at 2 (defining the release class to include all minors arrested alTested
in
in the INS' Western
the INS’ Westem RegionRegion “who
"who have
have been, are, or
been, are, or will
will be
be

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denied release from

denied release from INS
INS custody
custody because
because aa parent
parent or
or legal
legal
guardian fails
guardian to personally
fails to personally appear
appear toto take custody of
take custody of them")
them”).
But: the
But, the release class was
release class certified expressly
was certified expressly to
to challenge
challenge the
the
Western
Western Region’s policy of not releasing detained minors to
Region' s policy ofnot releasing detained minors to
anyone other
anyone other than parent or
than a parent or guardian.
guardian Complaint
Complaint ¶ 50;
50; see
see
also
also Flores, 507 U.S. at 296. That policy applied equally to
Flores: 507 U_S_ at 296 That policy applied equally to
accompanied minors: such
accompanied minors, such as a boy
boy detained
detained with
with his
his mother
mother
u.•ho
who wanted
wanted toto be
be released
released toto his
his aunt
aunt but was
but refised
was refused
because
because his father “fail[ed]
his father ' 'fail[ed] to
to personally appear to
personally appear to take
take
custodyof [him]." SeeOrder re ClassCertification at
custody of [him].” See Order re Class Certification at 2. 32.3

The
The government also contends
government also contends that, because the
that, because four
the four
named
named plaintiffs
plaintiffs inin the Complaint were
the Complaint were unaccompanied:
unaccompanied, a
class
class including accompanied minors would mn
including accompanied minors would afoul of
run afoul of the
the
requirements
requirements of typicality and
of typicality and representativeness.
representativeness. SeeSee Fed.
Fed.
R. Civ_ P
R. Civ. P._ 23.
23. The government’s
The government's factual premise
factual is
premise is
questionable: one of
questionable: one of the
the named
named plaintiffs was accompanied
plaintiffs was accompanied
at
at the
the time
time ofof arrest
arrest by her adult
by her adult brother: although he
brother, although was
he was
released without
released without her. Complaint
her. Complaint 34.
¶ 34. But: more
But, more
importantly: the government Ivaived its ability to challenge
importantly, the government waived its ability to challenge
the class certification
the class cenification when
when it settled
it settled the case
the case and
and did
did not
not
timely appeal the
timely appeal the final
final judgment
judgment. And:And, to to the extent this
the extent and
this and
other arguments are aimed
other arguments aimed at providing extrinsic evidence
providing extrinsic evidence of
of
the
the meaning
meaning of of the Settlement, they
the Settlement, they fail
fail because
because the
the

3Evenifthe
3
Even if the Complaintonly
Complaint only soughtsoughttto o assert
assertthethedetentionandrelease
detention and release
rights of
rights of unaccompanied immtgrant children,
unaccompanied immigrant children, itit isis far
far from
from clear
clear that
that aa
settlement governing
settlement governing detention
detention and release
release for for all
all immigration
Immigration children
children
would be invalid.
would invalid. A consent decree
A consent decree may "provide[ ]] broader
may “provide[ broader rellefthan
relief than
the court
the court could
could have
have awarded
awarded after
after a
a trial”;
trial"; the law only
the law only requires
requires that
that the
the
agreement “come within the general scope of the case made by
agreement "come wlåin the general scope of the case made the
by the
pleading# Local No. 93, Int 'IAss 'n ofFirefigkters v. City
pleadings.” Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, ofCIeveIand:
478 US.
478 501, 525
U.S. 501, 525 (1986)
(1986) (alterations, citations, and
(alterations, citations, quotation marks
and quotation marks
omitted).
omitted).

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Settlement unambiguously
Settlement unambiguously applies
applies to accompanied minors
to accompanied minors.
See Asarco, 430 F_3d at 980
See Asarco, 430 F.3d at 980.
II.
II. The Settlement Does
The Settlement Not Require
Does Not Require the
the Government
Government to
to
Release Parents
Release Parents
Flores'
Flores’ motion
motion to enforce argued
to enforce argued that ICE's purported
that ICE’s purported
no-release policy: which allegedly denied accompanying
no-release policy, which allegedly denied accompanying
parents '“any
parents 'any chance for release,”
chance for release:" frustrated
fiustrated the minor class
the minor class
members right to preferential release to a parent: and
members’ right to preferential release to a parent, and that tothat to
safeguard that
safeguard that right:
right, ICE
ICE waswas required
required to to give parents
give parents
individualized custody determinations.
individualized custody determinations. After
After the district
the district
court tentatively agreed: Flores went funher: proposing
court tentatively agreed, Flores went further, proposing an an
order providing
order providing that "Defendants
that “Defendants shall comply
shall comply with
with the
the
Settlement 14(a) by releasing class members
Settlement ¶ 14(a) by releasing class members without without
unnecessary delay
unnecessary delay in
in first
first order
order of
of preference
preference to
to aa parent,
parent,
including
including aa parent
parent subject
subject to
to release
release who
who presented
presented her or
her or
himself or
himself or was
Ivas apprehended
apprehended by Defendants accompanied
by Defendants accompanied byby
a class
a class member.
member.”
While acknowledging
While acknowledging that “the
that "the Agreement does not
Agreement does not
contain any provision that explicitly addresses adult rights
contain any provision that explicitly addresses adult rights
and
and treatment in detention,”
treatment in detention:" the district
the district court
court nonetheless
nonetheless
reasoned
reasoned that ' 'ICE's blanket
that “ICE’s no-release policy
blanket no-release policy with respect
with respect
to mothers
to cannot be reconciled
mothers cannot reconciled with the Agreement's
with the Agreement’s grant grant
to class
to class members
members of of aa right
right toto preferential release to
preferential release to aa
parent." The coun also found that the regulation
parent.” The court also found that the regulation upheld in upheld in
Flores: 507 U.S.
Flores, 507 U.S. at 315, 315: supported
supported the release of
the release of an
accompanying relative. See 8 C.F.R_
accompanying relative. See 8 C.F.R. § 212.5(b)(3)(ii) (“If ("If aa
relative who is not
relative who not inin detention
detention cannot
cannot be located
located to to sponsor
sponsor
the minor: the minor may be released with an
the minor, the minor may be released with an accompanying accompanying
relative who is
relative who in detention.”).
is in detentlon_")_ It It also found support
also found support forfor that
that
conclusion in ICE's practice: until June 2014:
conclusion in ICE’s practice, until June 2014, of generally of generally
releasing
releasing parents who were
parents who were not
not flight or safety
flight or safety risks
risks.

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The
The district court
district court therefore concluded
therefore concluded that
that the the
government
government “must "must release accompanying parent
release an accompanying long
parent as long
as doing so
as doing so would
would not
not create
create aa flight
flight risk or a
risk or a safety
safety risk,”
risk,"
and
and itit ordered
ordered:

To comply
To comply with
with Paragraph 14A of
Paragraph 14A of the
the
Agreement and as contemplated in Paragraph
Agreement and as contemplated in Paragraph
15: a class
15, member's accompanying
class member’s accompanying parent parent
shall be released with the class
shall be released with the class member in member in

accordance
accordance with applicable
with applicable laws
laws and
and
regulations
regulations unless the parent is subject to
unless the parent is subject to
mandatory detention under
mandatory detention applicable law
under applicable or
law or
after
after an individualized
individualized custodycustody determination
determination
sthe parent is determined to pose aa significant
sthe parent is determined to pose significant
flight
flight risk: or a
risk, or a threat
threat toto others
others oror the
the national
national
security, and the flight risk or threat cannot
security, and the flight risk or threat cannot
be mitigated
be mitigated by
by an appropriate
an appropriate bond
bond or or
conditions of release.
conditions of release.
The district court
The district coun erred in interpreting
erred in interpreting the Settlement to
the Settlement to
provide release rights to adults. The Settlement
provide release rights to adults. The Settlement does notdoes not
explicitly provide
explicitly any rights
provide any rights to adults. Buniö'te:
to adults. Bunikyte, 2007
2007 WL
WL
1074070 at
1074070 at *16.
*16. The
The fact
fact that
that the
the Settlement
Settlement grants class
grants class
members a right
members right to
to preferential
preferential release to a parent
release to over others
parent over others
does not
does not mean that the
mean that the government
govemment must must also
also make
make aa parent
parent
available: it simply
available; it simply means
means that: if available,
that, if available, a
a parent is the
parent is the
first choice.
first choice. Because "the plain
Because “the language of
plain language [the] consent
of [the] consent
decree is clear, we need not evaluate any extrinsic evidence
decree is clear, we need not evaluate any extrinsic evidence
to ascertain
to ascenain the
the true
tme intent
intent ofof the
the parties."
parties.” See
See Nehmer
Nehmer v.
U.S. Dep 't of Veterans Afairs: 494 F.3d 846:
U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 861 (9th 861 (9th Cir.
Cir.
2007). In
2007). In any
any case,
case: the extrinsic evidence
the extrinsic evidence does
does not show that
not show that
the
the parties intended to
parties intended grant release
to grant release rights to parents.
rights to parents. “In
' 'In
fact, the context of the Flores Settlement argues against
fact, the context of the Flores Settlement argues against thisthis
result: the
result: Settlement was
the Settlement the product
was the product of litigation in
of litigation which
in which
unaccompanied minors argued that release to adults
unaccompanied minors argued that release to adults other other

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than their parents

than their parents was
was preferable to remaining
preferable to remaining in
in custody
custody
until their
until parents could
their parents come get them.”
could come them." Bunikyte: 2007
Bunikyte, 2007
WL 1074070
WL 1074070 atat *16.
*16. The
The regulation
regulation the
the district
district court
court relied
relied
upon
upon at most shows
at most shows that
that the parties might
the parties tmght have
have thought about
thought about
releasing adults
releasing adults when
when executing
executing the Settlement: not
the Settlement, that they
not that they
agreed to do so in that document. And: there is no evidence
agreed to do so in that document. And, there is no evidence
that
that ICE once released
ICE once most children
released most children and parents because
and parents of
because of
the Settlement, rather
the Settlement, rather than for other
than for other reasons.
reasons.
Flores suggests that
Flores suggests that we
we construe the district
construe the district court’s
couffs order
order
narrowly: arguing that
narrowly, arguing it only
that it only requires,
requires, as
as she
she initially
initially
requested,
requested, that the government grant accompanying parents
that the government grant accompanying parents
individualized
individualized custody determinations
custody determinations “in ' 'In accordance
accordance with
with
applicable laws and regulations," just as it
applicable laws and regulations,” just as it would single would single
adults. But,
adults. But, the district court
the district court plainly went further.
plainly went further. A non-
A non-
criminal
criminal alien detained
alien detained during
during removal
removal proceedings
proceedings
generally bears
generally bears the
the burden of establishing
burden of establishing “that
"that he
he or she
or she
does
does not present aa danger
not present danger to
to persons or property:
persons or is not
property, is not aa
threat to
threat to the national security,
the national security: and does not
and does not pose
pose aa risk
risk of
of
flight" In re Guerra: 24 1. & N Dec. 37: (BIA
flight.” In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). 2006)
But, the
But, district court
the district court placed
placed the burden on the
the burden the government,
government,
requiring itit to
requiring to release
release an
an accompanying
accompanying parent "unless the
parent “unless the
parent is subject
parent subject to
to mandatory detention under
mandatory detention applicable
under applicable
law or
law or after
after an
atl individualized
individualized custody determination
custody determination the
the
parent
parent is determined to pose a significant flight risk, or aa
is determined to pose a significant flight risk: or
threat to
threat others or the
to others the national security"
national security.” In addition,
In addition, the
the
order requires a "significant flight risk" to justiö' detention,
order requires a “significant flight risk” to justify detention,
ivhile the
while the usual
usual standard
standard is merely
merely “a' 'a risk
risk of
of flight."
flight.” ld.
Id.
More importantly: parents were not plaintiffs in the
More importantly, parents were not plaintiffs in the Flores Flores
action, nor
action, are they
nor are they members
members ofof the cefilfied classes.
the certified classes. TheThe
Settlement therefore
Settlement therefore provides
provides no affirmative release
no affirmative release rights
rights

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for parents, and

for parents, and the district coun
the district erred in
court erred in creating such rights
creating such rights
in
in the
the context of a motion
context of to enforce
motion to enforce that agreement. 4
that agreement
111.
III. The
The District Court
District Court Correctly
Correctly Denied
Denied the the
Government's Motion to Amend the Settlement
Government’s Motion to Amend the Settlement
Even if
Even if the
the Settlement
Settlement applies
applies to accompanied minors,
to accompanied minors,
the government argues that it is “no longer equitable” to
the government argues that it is "no longer equitable" to
apply it
apply it as written.
written. See Fed. R.
See Fed. R. Civ.
Civ. P P._ 60(b)(5) (allowing
(allowing
relief from judgment if ' 'applying it
relief from judgment if “applying it prospectively is prospectively is no
no
longer equitable”);
longer equitable"); Horne
Horne v. v. Flores,
Flores: 557 557 US. 433, 447
U.S. 433, 447
(2009) ('Rule 60(b)(5) serves a particularly
(2009) (“Rule 60(b)(5) serves a particularly important important
ftnction
function m
in what
what we we havehave termed
termed 'institutional
‘institutional reform
reform
litigation.
litigation.’”). The district
The district court
court denied
denied this this motion.
motion. We
We
review that decision for abuse of
review that decision for abuse of discretion. Asarco,discretion. Asarco:
430 F.3d at
430 at 978.

“[A] party seeking modification

party seeking modification of of a a consent
consent decree
decree
bears the
bears the burden
burden of establishing that
of establishing that aa significant
significant change
change inin
circumstances walTants revision of the decree.
circumstances warrants revision of the decree. If the moving Ifthe moving
party meets
party meets this standard: the
this standard, court should
the court should consider
consider whether
whether
the proposed modification is suitably tailored
the proposed modification is suitably tailored to the changedto the changed
circumstance."
circumstance.” Rufo
Rufo v. Inmates
Inmates ofSzffolkCty.
of Suffolk Cty. Jail, 502 U
Jail, 502 _S_
U.S.
367, 383
367, 383 (1992).
(1992). IVhen the
When basis for
the basis for modification
modification is a
is a
change in
change in law,
law: the
the moving
moving party must establish
party must establish thatthat the
the
provision it
provision it seeks
seeks to
to modiö'
modify hashas become
become '“impermissible.”
'impermissible."
ld at388_
Id. at 388.

4 In so holding, we express no opinion

opinion whether
In so holding, we express no whether the parents of
the parents of
accompanied minors have a right to release: or if the
accompanied minors have right to release, if so, the nature of that nature of that
ght. Nor
right. do we
Nor do we express
express an an opinion
opmion whether
whether thethe alleged
alleged no-release
no-release
policy would
policy violate the
would violate the Settlement.
Settlement. We We hold
hold only
only that
that the Settlement is
the Settlement is
not the
not source of
the source any affirmative
of any right to
affirmative right release
to release.

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The
The government first argues
government first argues that
that the Settlement should
the Settlement should
be modified because of
modified because of the surge in
the surge in family
family units
units crossing
crossing the
the
Southwest border.
Southwest "Ordinarily:
border. “Ordinarily, however:
however, modification
modification
should not
should be granted
not be granted where
where aa party
party relies upon events
relies upon ewents that
that
actually were anticipated
actually were anticipated at the time it
the time it entered
entered into
into a decree.”
decree.
Id at 385. The Settlement expressly anticipated an
Id. at 385. The Settlement expressly anticipated an influx,influx,
and provided
and provided that: if one
that, if one occurred,
occurred: the govemment would
the government would be
given more time to release minors or place them in
given more time to release minors or place them in licensed licensed
programs. Settlement
programs. Settlement ¶ 12. 12. And: even if
And, even ifthe
the parties
parties did
did not
not
anticipate
anticipate an an influx
influx of
of this
this size,
size, we cannot fathom
we cannot fathom how
how aa
'“suitably
'suitably tailored" response to the change m circumstances
tailored” response to the change in circumstances
would be
would be to exempt an
to exempt entire category
an entire category of migrants from
of migrants from the
the
Settlement, as opposed to: say: relaxing certain requirements
Settlement, as opposed to, say, relaxing certain requirements
applicable to
applicable to all
all migrants.
migrants. See
See R4fo, 502 U_S_
Rufo, 502 U.S. at 383.
at 383.

The
The government also argues
government also argues that the law
that the law has changed
has changed
substantially since
substantially since the Settlement was
the Settlement approved.
was approved. It cites
It cites
Congress'
Congress’ authorization of expedited
authorization of expedited removal—but
removal—but that
that
occurred in
occurred in 1996,
1996: before
before the Settlement Ivas
the Settlement approved. See
was approved. See
Illegal Immigration Refonn and Immigrant Responsibility
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996,
Act of 1996, Pub L. 104–208,
Pub. L. 104-208: 110 Stat.
§ 302, 110 Stat 3009-546,
3009-546,
579—85 (1996).
579–85 (1996). The government
The government also also notes that the
notes that the
Homeland
Homeland SecuritySecurity Act of 2002
Act of 2002 reassigned the immigration
reassigned the immigration
ftnctions
functions of of the former INS
the former INS toto DHS;
DHS; butbut there is no
there is no reason
reason
why
why that bureaucratic reorganization should prohibit the
that bureaucratic reorganization should prohibit the
government
government from from adhering
adhering to
to the
the Settlement.
Settlement. See Settlement
See Settlement
¶ 11 (“As
("As thethe term
term [party]
[party] applies
applies to to Defendants,
Defendants, it it shall
shall
include their . . ._ successors
include their successors m offce_")
in office.”).
The
The government also argues
government also argues that some provisions
that some provisions ofof the
the
TN'?RA
TVPRA regarding
regarding the detention
the detention and
and release
release of
of
unaccompanied
unaccompanied minors are inconsistent
minors are inconsistent Mith
with the Settlement
the Settlement.
At most, that might support modification of the conflicting
At most, that might support modification of the conflicting
provisions
provisions that they
so that they nono longer
longer apply
apply to
to the
the
unaccompanied minors covered by the TAPRA_ But,
unaccompanied minors covered by the TVPRA. But, the the

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creation
creation of statutory rights
of statutory rights for unaccompanied minors
for unaccompanied does
minors does
not make
not make application
application of the
of the Settlement
Settlement toto accompanied
accompanied
minors “impermissible.”
minors "impermissible." The district
The district court
coun did
did not
not abuse
abuse its
its
discretion in denying the motion to amend on
discretion in denying the motion to amend on the record the record
before it.
before it.
CONCLUSION
CONCLUSION
We hold
We hold that
that the Settlement applies
the Settlement applies to accompanied
to accompanied
minors but does not require the release of accompanymg
minors but does not require the release of accompanying
parents _ We
parents. We therefore affirm in
therefore affirm in part,
part: reverse
rev erse in
in part,
part: and
and
remand
remand for funher proceedings
for further proceedings consistent
consistent with opinion.5
this opinion.
with this
Each party shall bear its ourn costs.
Each party shall bear its own costs.

SWe
5
We note
note that
that aa second
secondmotion
motion to enforce is
to enforce is pending in the
pending in district
the district
court.

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