Immigration Law

Court: DOJ Attempt to Avoid Flores Agreement 'Wholly Without Merit'

Flores v. Sessions, July 9, 2018 - "Defendants’ Ex Parte Application is a thinly veiled motion for reconsideration without any meaningful effort to comply with the requirements of Local Rule 7-18. ... Defendants now seek to hold minors in indefinite detention in unlicensed facilities, which would constitute a fundamental and material breach of the parties’ Agreement. ... Defendants advance a tortured interpretation of the Flores Agreement in an attempt to show that the Ms. L preliminary injunction permits them to suspend the Flores release and licensure provisions. They claim that detaining Flores Class Members with their parents complies with Paragraph 14’s command that Class Members be “release[d] from . . . custody without unnecessary delay” because separating a Class Member from a parent would violate the Ms. L Order. See Notice of Compl. at 6 (emphasis in original) (quoting Flores Agreement at ¶ 14 [Doc. # 101]) [Doc. # 447]. Similarly, Defendants contend that indefinite detention in ICE unlicensed family residential facilities is consistent with: (1) their obligation to transfer minors to licensed placements “as expeditiously as possible” if there is an influx of minors, and (2) Paragraph 12.A’s proviso that such transfer is unnecessary when “any court decree or court-approved settlement” provides otherwise. See id. at 7 n.1 (quoting Flores Agreement at ¶ 12.A.2–3 [Doc. # 101]). The Court rejects this strained construction of the Flores Agreement it renders meaningless paragraph 12.A (deadlines for transfers to licensed placements), paragraph 14 (persons to whom Class Members may be released), paragraph 18 (efforts toward release and reunification), and paragraph 19 (placement of Class Members in licensed programs). .. It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. The parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying wellestablished principles of law. Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount. In sum, Defendants have not shown that applying the Flores Agreement “prospectively is no longer equitable[,]” see Fed. R. Civ. P. 60(b)(5), or that “manifest injustice” will result if the Agreement is not modified, see United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Of course, the parties are always free to meet and confer regarding any contractual amendments on which they can mutually agree. This is basic contract law. In light of the foregoing, the Court DENIES the Ex Parte Application because it is procedurally improper and wholly without merit."