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Immigration Law

CA9 on Flores Agreement (Dec. 29, 2020)

Flores v. Rosen

"We consider again the consent decree incorporating the Flores Agreement, a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention (“the Agreement”). The Agreement established nationwide standards for the “detention, release, and treatment of minors” by U.S. immigration authorities. Agreement ¶ 9. By the Agreement’s own terms, it terminates after the government’s “publication of final regulations implementing this Agreement.” Id. ¶ 40 (as modified by Stipulation, Dec. 7, 2001). In 2019, the government issued final regulations represented as implementing, and thus terminating, the Agreement. The new regulations largely mirror the Agreement’s protections for unaccompanied minors, but they significantly reduce the limits on detention for minors taken into custody with a family member or guardian (“accompanied minors”). The district court concluded that the new regulations, on the whole, were inconsistent with the Agreement. It enjoined the regulations from taking effect and denied the government’s motion to terminate the Agreement. We hold that the provisions of the new regulations relating to unaccompanied minors are generally consistent with the Agreement and may take effect, with two exceptions. Additionally, some of the regulations regarding initial detention and custody of both unaccompanied and accompanied minors are consistent with the Agreement and may take effect. The remaining new regulations relating to accompanied minors depart from the Agreement in several important ways. We therefore affirm the district court’s order enjoining those regulations. Additionally, the district court correctly concluded that the Agreement was not terminated by the adoption of the regulations. Finally, the district court did not abuse its discretion in denying the government’s motion to terminate the Agreement, as the government has not demonstrated that changed circumstances, such as an increase in family migration, justify terminating the Agreement’s protections."