FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JENNY LISETTE FLORES, No. 19-56326 Plaintiff-Appellee, D.C. No. v. 2:85-cv-04544- DMG-AGR JEFFREY A. ROSEN, Acting Attorney General; CHAD F. WOLF; U.S. DEPARTMENT OF HOMELAND OPINION SECURITY; U.S. IMMIGRATION AND 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 Argued and Submitted May 19, 2020 San Francisco, California Filed December 29, 2020 2 FLORES V. ROSEN Before: William A. Fletcher, Marsha S. Berzon, and Milan D. Smith, Jr., * Circuit Judges. Opinion by Judge Berzon SUMMARY ** Immigration In an action involving the Flores Agreement, a 1997 settlement agreement between the United States and a class of all minors subject to immigration detention (“the Agreement”), the panel affirmed in part and reversed in part a district court order enjoining regulations represented as implementing the Agreement, and affirmed the district court’s denial of the government’s motion to terminate the Agreement. By the Agreement’s terms, it terminates after the “publication of final regulations implementing this Agreement.” In 2019, the Department of Homeland Security (“DHS”) and the Department of Health and Human Services (“HHS”) issued a final rule entitled “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children (“Final Rule”), which * Pursuant to Ninth Circuit General Order 3.2.h, Judge M. Smith, Jr. was drawn by lot to replace Judge Tashima, who has recused himself. Judge M. Smith, Jr. has reviewed the record and briefs in this case and listened to the oral argument before the prior panel. ** 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. ROSEN 3 comprises two sets of regulations: one issued by DHS and one by HHS. The district court entered a permanent injunction enjoining enforcement of the Final Rule in its entirety. As to the HHS regulations relating to unaccompanied minors, the panel held that the provisions are generally consistent with the Agreement, and may take effect, with two exceptions. First, the panel concluded that the provision allowing the Office of Refugee Resettlement (“ORR”) to place an unaccompanied minor in a secure facility (e.g., a state or county juvenile detention facility) if the minor is “otherwise a danger to self or others” is inconsistent with the Agreement. The panel explained that the relevant statutory provision states that a minor shall not be placed in a secure facility “absent a determination that the child poses a danger to self or others,” not that ORR may place a minor in a secure facility whenever it makes that determination. Second, the panel concluded that the portion of the bond hearing regulations providing a hearing to unaccompanied minors held in secure or staff-secure placements only if they request one is inconsistent with the Agreement, which provides unambiguously for a bond hearing “unless the minor indicates . . . that he or she ...
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