United States v. 2020-10-04 | 20-55951 | JENNY FLORES V. WILLIAM BARR | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JENNY LISETTE FLORES,
Plaintiff-Appellee,

v.

WILLIAM P. BARR, Attorney General;
CHAD F. WOLF; U.S. DEPARTMENT
OF
HOMELAND SECURITY; U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT; U.S. CUSTOMS AND
BORDER PROTECTION,
Defendants-Appellants.
No. 20-55951

D.C. No.
2:85-cv-04544-
DMG-AGR

ORDER

Filed October 4, 2020

Before: William A. Fletcher, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.

Order

2 FLORES V. BARR

SUMMARY
*

Immigration / Interlocutory Appeal

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 Flores
Agreement” or “the Agreement”), the panel denied the
government’s emergency motion for a stay pending appeal
of two district court orders precluding 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.

Under the Flores Agreement, after the government
apprehends minors, it ordinarily must transfer them within
three days to a “licensed program,” which is defined as a
“program, agency or organization that is licensed by an
appropriate State agency to provide residential, group, or
foster care services for dependent children.” 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 in a
land Port of Entry or Border Patrol station. The order was
issued under Title 42, a provision of which authorizes the
Surgeon General to prohibit introduction of persons to
protect against communicable disease. The stated purpose
of the order was to protect the public heath from COVID-19,
and the order now applies indefinitely.

*
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. BARR 3

In July 2020, the independent monitor appointed by the
district court to monitor the implementation of the Flores
Agreement reported to the district court that DHS was using
hotels to house unaccompanied minors, as well as minors
apprehended with a family member, pending their expulsion.
In August 2020, the monitor reported that DHS had housed
660 minors between the ages of ten and seventeen, 577 of
whom were unaccompanied and that, on average, minors
were housed in hotels for just under five days, but 25 percent
had been held for more than ten days, with a maximum stay
of twenty-eight days.

After Plaintiffs filed a motion to enforce the Agreement,
the district court issued an order, which, as modified by a
subsequent order, requires DHS to stop placing minors at
hotels, with the exception that DHS may implement brief
stays of not more than 72 hours as necessary and in good
faith to alleviate bottlenecks at licensed facilities. In the
event of other exigent circumstances necessitating future
hotel placements, the district court directed that the
government “shall immediately alert Plaintiffs and the
Independent Monitor, providing good cause for why such
unlicensed placements are necessary.” The government
appealed and sought an emergency stay pending appeal. The
panel previously issued an administrative stay through
October 5, 2020.

The panel concluded that the government is unlikely to
succeed on the merits of its appeal because the panel likely
does not have jurisdiction over it. Explaining that this court
has appellate jurisdiction over interlocutory district court
orders granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify
injunctions, the panel concluded that the government had not
shown that the district court orders modified the Agreement.

4 FLORES V. BARR

The government contended that minors held under Title 42
are in the custody of the CDC rather than DHS and that,
therefore, the district court modified the Agreement by
applying it to minors held under Title 42. Looking to usual
family law understanding of “legal custody” and DHS’s
regulations assertedly implementing the Agreement, the
panel concluded that DHS has custody of the minors held in
hotels under Title 42 because DHS maintains both physical
control and exercises decision-making authority over them.
Responding to the government’s assertion that the court has
jurisdiction because the district court orders required the
government to take specific actions, the panel concluded that
each action ordered by the district court likely effectuates,
rather than modifies, the Agreement.

The panel also concluded that the government had not
established that it would be irreparably harmed by
complying with the district court orders while the appeal is
pending. The government claimed irreparable harm due to
the risk of COVID-19 exposure in U.S. Border Patrol
facilities, Immigration and Customs Enforcement family
residential centers, and Office of Refugee Resettlement
(“ORR”) shelters. The panel concluded that the government
had not satisfactorily explained why ORR’s largely empty
shelters are not capable of absorbing even as many as 140
additional minors a week for short-term stays before those
minors are expelled under Title 42. The panel also noted that
the government had not offered testimony from any public
health official explaining why holding minors in hotels,
which are open to the public, presents less risk of COVID-
19 exposure and spread, both to the minors and to the public,
than holding them in licensed facilities.

FLORES V. BARR 5

COUNSEL

Jeffrey Bossert Clark, Acting Assistant Attorney General;
Scott G. Stewart, Deputy Assistant Attorney General;
August E. Flentje, Special Counsel to the Assistant Attorney
General; William C. Peachey, Director; William C. Silvis,
Assistant Director; Sarah B. Fabian and Nicole N. Murley,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.

Carlos R. Holguin, Center for Human Rights &
Constitutional Law, Los Angeles, California; Leecia Welch,
Neha Desai, Poonam Juneja, Freya Pitts, and Melissa
Adamson, National Center for Youth Law, Oakland,
California; for Plaintiff-Appellee.

ORDER
The district court issued two orders precluding 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 United States.
Addressing the government’s emergency motion for a stay,
we conclude that the government is unlikely to succeed on
the merits of its appeal, as we likely do not have jurisdiction
over the appeal. The government also has not established
that it would be irreparably harmed if it were obliged to
comply with the district court’s orders while the appeal is
pending. We therefore deny the government’s motion for a
stay.

6 FLORES V. BARR

I.
In 1997, the United States entered into a settlement
agreement (“the Flores Agreement” or “the Agreement”)
with a class of minors subject to detention by U.S.
immigration authorities (“Plaintiffs”). See Flores v. Barr
(“Flores II”), 934 F.3d 910, 912 (9th Cir. 2019). The
Agreement was entered by the district court as a consent
decree and remains in effect today.
1
Among other things, the
Agreement provides that after the government apprehends
minors, it ordinarily must transfer them to a “licensed
program” within three days. Agreement ¶ 12.A. A “licensed
program” refers to a “program, agency or organization that
is licensed by an appropriate State agency to provide
residential, group, or foster care services for dependent
children.” Id. ¶ 6.
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 in a land Port of Entry (POE) or Border
Patrol station at or near the United States borders with
Canada and Mexico,” subject to certain exceptions. 85 Fed.
Reg. 17,060, 17,061 (Mar. 26, 2020). The order was issued
under Title 42 of the U.S. Code, which authorizes the
Surgeon General to “prohibit . . . the introduction of persons
and property” to protect against a “serious danger of the
introduction of [any communicable] disease into the United
States.” 42 U.S.C. § 265. The stated purpose of the order was

1
In September 2019, the district court denied the government’s
motion to terminate the Agreement. Flores v. Barr, 407 F. Supp. 3d 909
(C.D. Cal. 2019). The government’s appeal of that order is pending in
this Court. Flores v. Barr, No. 19-56326 (9th Cir.).

FLORES V. BARR 7

to “protect the public health from an increase in the serious
danger of the introduction of Coronavirus Disease 2019
(COVID-19) into the land POEs, and the Border Patrol
stations between POEs, at or near the United States borders
with Canada and Mexico.” 85 Fed. Reg. at 17,061.
The CDC order called for “the movement of all . . . aliens
[covered by the order] to the country from which they
entered the United States, or their country of origin . . . as
rapidly as possible, with as little time spent in congregate
settings as practicable under the circumstances.” Id.
at 17,067. The order requested that “DHS implement this
order because CDC does not have the capability, resources,
or personnel needed to do so.” Id. The order was extended in
April and May 2020 and now applies indefinitely. See
85 Fed. Reg. 22,424 (Apr. 22, 2020); 85 Fed. Reg. 31,503
(May 26, 2020).
In July 2020, the independent monitor appointed by the
district court to monitor the implementation of the Flores
Agreement reported to the district court that DHS was using
hotels to house unaccompanied minors, as well as minors
apprehended with a family member (“accompanied
minors”), pending their expulsion under Title 42, “routinely
for multiple days.” See Flores v. Barr, No. CV-85-4544,
2020 WL 5491445, at *2 (C.D. Cal. Sept. 4, 2020) (“Sept. 4
Order”). In August 2020, the independent monitor reported
that DHS had used twenty-five hotels across three states,
both in border cities (El Paso and McAllen, Texas) and
interior cities (Phoenix and Houston), to house 660 minors
between the ages of ten and seventeen, 577 of whom were
unaccompanied. Id. On average, minors were housed in
hotels for “just under five days,” but 25 percent had been
held for more than ten days, with a maximum stay of twenty-
eight days. Id.

8 FLORES V. BARR

Plaintiffs filed a motion to enforce the Flores
Agreement, arguing, among other things, that the hoteling
program violated the Agreement’s requirement that DHS
ordinarily transfer minors to a licensed program if it holds
them for longer than three days. Plaintiffs also asserted that
minors held in hotels were being denied access to counsel in
violation of the Agreement.
The district court granted Plaintiffs’ motion. As relief,
the court declared that the Agreement applied to minors
detained under the authority of Title 42 and required the
government to “comply with the Agreement with respect to
such minors to the same degree as any other minors held in
their custody.” Id. at *10. Implementing that declaration, the
court directed DHS to stop placing minors in hotels by
September 15, 2020. Id. The order provided that “exceptions
may be made for one to two-night stays while in transit or
prior to flights.” Id. In the event of “other exigent
circumstances . . . necessitat[ing] future hotel placements,”
the district court directed that the government “shall
immediately alert Plaintiffs and the Independent Monitor,
providing good cause for why such unlicensed placements
are necessary.” Id. Citing paragraph 12.A of the Agreement,
the district court required DHS to transfer all minors
currently held in hotels to licensed facilities “as
expeditiously as possible.” Id. The court further directed the
government to permit Plaintiffs’ counsel to visit any facility
where minors were being held under Title 42 and to meet
with any minor being so held, under paragraphs 32 and 33 of
the Agreement. Id. at *11.
The government appealed the district court’s order and
filed an emergency motion in this Court seeking a stay
pending appeal. The government’s motion relied on
evidence not presented to the district court. We denied the

FLORES V. BARR 9

government’s motion without prejudice, and granted a
temporary administrative stay to allow the government first
to seek a stay in the district court. Order, Flores v. Barr, No.
20-55951 (9th Cir. Sept. 16, 2020).
The district court denied the government’s motion for a
stay and modified its original order. The modified order
required DHS to stop placing minors at hotels by September
28, 2020, with the exception that “DHS may implement brief
hotel stays (not more than 72 hours) as necessary and in good
faith to alleviate bottlenecks in the intake processes at
licensed facilities.” Flores v. Barr, No. CV-85-4544, 2020
WL 5666550, at *4 (C.D. Cal. Sept. 21, 2020) (“Sept. 21
Order”). Returning to this Court, the government renewed
its emergency motion for a stay pending appeal, and we
granted a further temporary administrative stay through
October 5, 2020.
II.
“A party requesting a stay pending appeal ‘bears the
burden of showing that the circumstances justify an exercise
of [judicial] discretion.’” Doe #1 v. Trump, 957 F.3d 1050,
1058 (9th Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418,
433–34 (2009)). In considering whether to exercise our
discretion to grant the government’s motion for a stay, “we
apply the familiar standard set forth by the Supreme Court
in Nken, namely: (1) whether the Government has made a
strong showing of the likelihood of success on the merits;
(2) whether the [government] will be irreparably injured
absent a stay; (3) whether a stay will substantially injure
other parties; and (4) where the public interest lies.” Id.
“‘The first two factors . . . are the most critical.’” Id. (quoting
Nken, 556 U.S. at 434). “We consider the last two factors if
the first two factors are satisfied.” Id.; see All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011)

10 FLORES V. BARR

(explaining, in the analogous context of a preliminary
injunction, that relief “is appropriate when a plaintiff
demonstrates . . . that serious questions going to the merits
were raised and the balance of hardships tips sharply in the
plaintiff’s favor” (internal quotation marks omitted)).
A.
The first Nken factor, whether the government has made
a strong showing that it is likely to succeed on the merits of
its appeal, obliges us to consider whether we are likely to
have jurisdiction over the appeal. “This court has appellate
jurisdiction over interlocutory district court orders ‘granting,
continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions.’” Flores II,
934 F.3d at 914 (quoting 28 U.S.C. § 1292(a)(1)). We must
determine whether, as the government contends, the district
court’s orders have functionally modified the Flores
Agreement or whether, on the other hand, they simply
enforce the existing consent decree.
2
See id. Deciding that
question requires us to review the parties’ arguments on the
merits issues of whether the Agreement applies to minors
detained under Title 42 and whether the district court’s
orders require the government to take actions beyond those
required by the Agreement. Cf. Augustine v. United States,
704 F.2d 1074, 1077 (9th Cir. 1983) (holding that a court

2
We reject the government’s argument that we have jurisdiction
under 28 U.S.C. § 1291 because the district court’s “order enjoins
activity taken under independent statutory authority, addressing public
health rather than immigration, by the CDC Director who has nothing to
do with the government’s immigration operations and is not a party to
the Agreement.” The district court’s orders do not state that the CDC
Director is covered by the Agreement and do not require the CDC to do
anything.

FLORES V. BARR 11

may address jurisdictional and substantive issues
concurrently if they are “intertwined”).
By its terms, the Agreement applies to “[a]ll minors who
are detained in the legal custody of the INS.” Agreement
¶ 10. The former “Immigration and Naturalization Service’s
obligations under the Agreement now apply to [DHS] and
the Department of Health and Human Services” (“HHS”).
Flores II, 934 F.3d at 912 n.2. Additionally, the Agreement
applies to both unaccompanied and accompanied minors.
Flores v. Lynch (“Flores I”), 828 F.3d 898, 905 (9th Cir.
2016).
The government maintains that minors held under Title
42 “are in the legal custody of the CDC” because “the source
of legal authority for custody” is the CDC order, not the
immigration statutes. But there is no evidence that the term
“custody,” as used in the Flores Agreement, refers to the
source of legal authority for custody, as opposed to the entity
actually exercising legal custody. The Agreement does not
define “custody,” so we look to the common meaning of the
term, particularly in the legal context. See Doe 1 v. AOL
LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). The term’s
ordinary meaning in family law is the right to make
important decisions affecting the child. See Custody, Black’s
Law Dictionary (11th ed. 2019) (defining “legal custody” in
the family law context as “[t]he authority to make significant
decisions on a child’s behalf”); Cal. Fam. Code § 3003
(defining “legal custody” as “the right and the responsibility
to make the decisions relating to the health, education, and
welfare of a child”); Agreement ¶¶ 12.A, 14, 15, 16, 19. DHS
itself, in its recently promulgated regulations assertedly
implementing the Flores Agreement, defines “custody” as
“within the physical and legal control of an institution or
person.” 8 C.F.R. § 236.3(b)(4). That definition accords with

12 FLORES V. BARR

the usual family law understanding of “legal custody.” Like
California Family Code § 3003, 8 C.F.R. § 236.3(b)(4)
defines “custody” based on an institution or person’s ability
to physically and legally control the child. DHS’s current
position, focusing on the source of the legal authority for
assigning custody and not on the assigned custody itself, is
inconsistent with all of these definitions.
Here, it is clear that DHS both maintains physical control
and exercises decision-making authority over the minors
held in hotels under Title 42. DHS apprehends the minors;
DHS decides, apparently unilaterally and with no
explanation or articulated standards, whether to expel them
under Title 42 or to detain them under the immigration
statutes; DHS decides where and for how long to hold them
(the CDC order says nothing whatever about detention in
hotels); and DHS provides for their physical needs,
including medical care. See Sept. 4 Order, 2020 WL
5491445, at *4–5. Thus, the district court likely did not
modify the Agreement in concluding that minors held under
Title 42 are in DHS’s custody for purposes of the Agreement
and by so applying the Agreement to those minors.
The government asserted at oral argument that this Court
has jurisdiction over the appeal because the district court’s
orders require the government to take “specific actions,” not
simply to comply with the Agreement. Flores II held that we
did not have jurisdiction to review the district court’s order
enforcing the Agreement at issue in that case. There, we
distinguished Flores I, in which we exercised appellate
jurisdiction over the district court’s order requiring the
government to take “specific actions,” such as releasing a
minor’s accompanying parent. Flores II, 934 F.3d at 914 n.5.
In Flores I, however, the district court’s order required the
government to take actions that the Agreement did not

FLORES V. BARR 13

require (i.e., releasing adults along with their children). See
Flores I, 828 F.3d at 908. The order thus modified the
Agreement, and provided a basis for concluding, as the
opinion did without explanation, that there was jurisdiction
under 28 U.S.C. § 1292(a). Id. at 905.
Here, in contrast, as in Flores II, the district court just
directed compliance with the Agreement, specifying in its
September 4 order the paragraph of the Agreement being
implemented by each directive: DHS must ordinarily
transfer minors held for longer than three days to a licensed
facility, as required by paragraph 12.A of the Agreement, see
Sept. 4 Order, 2020 WL 5491445, at *10; Sept. 21 Order,
2020 WL 5666550, at *4; DHS must allow plaintiffs’
counsel to visit facilities where minors are held and to meet
with minors, as required by paragraphs 32 and 33 of the
Agreement, see Sept. 4 Order, 2020 WL 5491445, at *11;
the government’s Juvenile Coordinators must maintain
records on minors and monitor compliance with the
Agreement, as required by paragraphs 28A and 29 of the
Agreement, see id.; and the independent monitor and special
expert may conduct investigations under the authority
already granted by the district court’s October 5, 2018 order,
see id. The deadlines in the orders assure compliance with
the Agreement by a date certain, but they add no substantive
requirement. Each of the actions ordered by the district court
likely effectuates, rather than modifies, the Agreement.
The government points out that paragraph 12.A of the
Agreement provides an exception from the three-day
transfer rule “in the event of an emergency.” Agreement
¶ 12.A(3). The Agreement defines an “emergency” as “any
act or event that prevents the placement of minors . . . within
the time frame provided,” including “medical emergencies
(e.g., a chicken pox epidemic among a group of minors).” Id.

14 FLORES V. BARR

¶ 12.B. In the event of an emergency, DHS is required to
place minors in a licensed program “as expeditiously as
possible.” Id. ¶ 12.A(3). The government contends that the
emergency exception applies here, making the district
court’s “application of a strict three-day transfer rule . . .
incorrect.”
The district court’s orders in fact are not strict. The
original order provides the government with flexibility to
address “exigent circumstances that necessitate future hotel
placements.” Sept. 4 Order, 2020 WL 5491445, at *10. And
the amended order permits three-day hotel stays for the
express purpose of allowing the government to “alleviate
bottlenecks in the intake processes at licensed facilities.”
Sept. 21 Order, 2020 WL 5666550, at *4. Nothing in the
present record establishes that the COVID-19 pandemic
prevents the government from placing minors in licensed
programs within three days. As addressed further below, the
capacity of the government’s shelters for unaccompanied
minors—10,000 vacant beds as of August 22, 2020—
appears more than adequate to accommodate the number of
unaccompanied minors who need licensed placements,
taking COVID-19 safety protocols into account. See Sept. 4
Order, 2020 WL 5491445, at *8.
The government has not shown that the district court’s
orders require it to take actions not required by the
Agreement. We therefore conclude that we likely do not
have jurisdiction over the appeal, and that for that reason, the
government has not shown a strong likelihood of success on
the merits.
B.
Even where there has not been a showing of a strong
likelihood of success on the merits, relief may be appropriate

FLORES V. BARR 15

if the party seeking it demonstrates that “serious questions
going to the merits were raised and the balance of hardships
tips sharply in the [party’s] favor.” All. for the Wild Rockies,
632 F.3d at 1134–35. Although we doubt that the
government has satisfied even the “serious questions”
standard here, we nonetheless consider whether the
government has shown that it will be irreparably injured
absent a stay. It has not.
The government asserts that complying with the district
court’s orders while this appeal is pending would cause
irreparable harm by “increas[ing] the risk of COVID-19
exposure in U.S. Border Patrol facilities, [Immigration and
Customs Enforcement (‘ICE’)] family residential centers,
and [Office of Refugee Resettlement (‘ORR’)] shelters.”
The government submitted a declaration from a Border
Patrol official “anticipat[ing] that [the Border Patrol] may
need to refer approximately 60–140 additional single minors
to [licensed programs under the authority of ORR] per
week” as a result of the district court’s September 4 order.
The declaration does not provide a basis for the 60 to 140
estimate and, like all of the government’s declarations, it
predates the district court’s September 21 order, which
modified the original order to allow the government to hold
minors in hotels for up to three days.
The independent monitor’s August 2020 report indicated
that 25 percent of minors housed in hotels from March 24,
2020, to July 31, 2020, were held for three days or less. The
independent monitor also reported that a total of 577
unaccompanied minors were held in hotels during that time
period. If 75 percent of those minors had been referred to
ORR, an average of 24 minors would have been referred
each week. Even assuming, as the government’s declarations
suggest, that apprehensions have increased, the government

16 FLORES V. BARR

does not explain how it has determined that 60 to 140
unaccompanied minors are likely to be referred to ORR each
week instead of being held in hotels. That estimate is even
more inexplicable given the assertion of another government
declarant that, as of September 17, 2020, “no minors are
being held in hotels as part of the Title 42 program.”
The government also submitted a declaration from an
ORR official stating that “ORR is already receiving
approximately 105 referrals a week,” and, in light of the
agency’s need to implement COVID-19 safety protocols, the
ORR system “is already at its functional intake capacity.”
But the government has not established that the additional
referrals would actually overwhelm the ORR system. The
same ORR official determined in March 2020, when the
system was operating at 30 percent capacity overall, that the
population of minors was sufficiently low to allow ORR to
implement COVID-19 safety protocols effectively. She now
urges us not to rely on that determination and points out that
the population was “practically static” at that time, so the
system’s intake capacity was not burdened. Since March,
however, the population of minors in ORR care has dropped
tenfold; as of August 24, 2020, the system was operating at
3 percent capacity, with 10,000 vacant beds. See Sept. 4
Order, 2020 WL 5491445, at *8. The government has not
satisfactorily explained why ORR’s largely empty shelters
are not capable of absorbing even as many as 140 additional
minors a week for short-term stays before those minors are
expelled under Title 42.
Nor has the government offered testimony from any
public health official explaining why holding minors in
hotels, which are open to the public, presents less risk of
COVID-19 exposure and spread, both to the minors and to
the public, than holding them in licensed facilities. Finally,

FLORES V. BARR 17

if any of the problems prophesied by the government show
signs of materializing, the district court’s orders give the
government the option of “alert[ing] Plaintiffs and the
Independent Monitor” that “exigent circumstances . . .
necessitate . . . hotel placements” and “providing good cause
for why such unlicensed placements are necessary.” Sept. 4
Order, 2020 WL 5491445, at *10.
The government has not established that irreparable
harm will result if the district court’s orders take effect while
this appeal is pending.
III.
Having concluded that the government is unlikely to
succeed on the merits of its appeal and that it has not
established a likelihood of irreparable injury, we deny the
motion for a stay pending appeal without reaching the last
two Nken factors. Doe #1, 957 F.3d at 1058.
Because the issues on appeal are well developed in the
parties’ briefing of the government’s emergency motion and
the present panel will decide the merits of this appeal, the
parties are not required to file further briefs in this case. Any
party wishing to file a nonrepetitive brief addressing points
not already discussed in the stay briefing may do so on the
schedule previously established.
The emergency motion for a stay pending appeal is
DENIED.