FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JENNY LISETTE FLORES, Nos. 20-55951 Plaintiff-Appellee, 20-56052 v. D.C. No. 2:85-cv-04544- MERRICK B. GARLAND, Attorney DMG-AGR General; ALEJANDRO MAYORKAS; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND OPINION CUSTOMS ENFORCEMENT; U.S. CUSTOMS AND BORDER PROTECTION, Defendants-Appellants. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Submitted June 23, 2021 * San Francisco, California Filed June 30, 2021 * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 FLORES V. GARLAND Before: William A. Fletcher, Marsha S. Berzon, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Berzon SUMMARY ** Immigration / Appellate Jurisdiction In an action involving the 1997 settlement agreement between the United States and a class of minors subject to detention by U.S. immigration authorities (“the Agreement”), the panel affirmed a district court order enjoining the Department of Homeland Security (“DHS”) from detaining certain minors in hotels for more than a few days in the process of expelling them from the country. In March 2020, the Centers for Disease Control (“CDC”) issued an order temporarily suspending the introduction into the United States of persons traveling from Canada or Mexico who would otherwise be introduced into a congregate setting. The order’s stated purpose was to protect the public health from COVID-19, and it was issued under Title 42, which authorizes the Surgeon General to prohibit introduction of persons to protect against communicable disease. In October 2020, the order was replaced by the now-operative order, which is substantially the same (“Title 42 Order”). ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FLORES V. GARLAND 3 In July 2020, the Agreement’s independent monitor reported that DHS was using hotels to house unaccompanied and accompanied minors pending expulsion under Title 42. Plaintiffs moved to enforce the Agreement, maintaining, among other contentions, that the hoteling program violated the Agreement’s requirement that DHS ordinarily transfer minors within three days to a program licensed to provide residential, group, or foster care service. The district court issued an order on September 4, 2020, requiring DHS to stop placing minors at hotels, absent certain exceptions. On appeal, this panel denied the government’s motion for a stay pending appeal. The district court then denied the government’s stay motion but issued a modified order requiring DHS to stop placing minors at hotels, except for brief hotel stays (not more than 72 hours) as necessary and in good faith to alleviate bottlenecks in intake processes (“September 21 Order”). This panel denied the government’s renewed motion for a stay pending appeal. In February 2021, the CDC temporarily excepted unaccompanied minors from expulsion under Title 42. The government filed a status report with this Court stating that it was not expelling accompanied minors under the Title 42 Order, it had generally stopped …
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