In 2015, the plaintiff class in Janet Reno v. Flores moved to enforce the Flores Consent Decree of 1997 after the government asserted in 2014 that the decree only required the removal of unaccompanied minors from detention facilities as quickly as possible. The court, in Flores v. Loretta Lynch, sided with the plaintiff and held that the decree required the government to remove both accompanied and unaccompanied minors from detention facilities within a short period, which is now considered 72 hours. (RELATED: Federal Judge’s ruling all but eliminates the southern U.S. border)

The finding had an unintended set of consequences. Either the government had to be able to process any immigration/asylum case within the 72-hour period or the children would need to be moved to a “licensed, non-secure facility” that “meets high standards”. The result is that any case where the alien adult’s case was unable to be adjudicated within 72 hours would result in the separation of the child from the adult detainee.

The Obama administration decided to release both the suspected criminal alien and the accompanied minors into the United States pending trial to satisfy the court decision although the action failed to enforce U.S. law. Less than 10% of those released bother to show up for their court dates.

The lax enforcement resulted in a massive influx of Central American immigrants with children in tow and they tend to have no documentation making familial bonds difficult to ascertain.

Human traffickers use kidnapped and enslaved children to pose as accompanied alien minors and parents now drag their children on a dangerous journey as a method to skirt U.S. immigration law.

The conclusions of the court in Flores v. Loretta Lynch are as follows:

The Flores Dissent Decree applies to accompanied and unaccompanied minors The Flores Dissent Decree does not require the release of accompanying parents or guardians

This basically creates the situation where, if immigration laws are enforced and these decision adhered to, the minor must be moved to a non-secure, licensed facility, but the parents will remain in a secure detainment facility awaiting trial. That is where the separation of illegal alien families originates – a legal agreement during the Clinton administration and a court decision during Obama’s term. Only Congress can make a law or set of laws to remedy this.

Where did the 20-day limit come from?

The 20-day reference thrown around by the media and administration does exist. It isn’t codified in law that we were able to discover, but instead a court order from August of 2015. In it, DHS is given an average of 20-days to handle asylum claims. The full text of that order is HERE.

What laws feed into the family separation mess?

Two laws play a part in illegal aliend family separations. The Homeland Security Act (HSA) from 2002 and the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) from 2008.

Full text of the 9th Circuit Court decision in Flores v. Loretta Lynch

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNY LISETTE FLORES,

Plaintiff-Appellee,

v.

LORETTA E. LYNCH, Attorney

General, Attorney General of

the United States; JEH JOHNSON,

Secretary of Homeland

Security; U.S. DEPARTMENT OF

HOMELAND SECURITY, and its

subordinate entities; U.S.

IMMIGRATION AND CUSTOMS

ENFORCEMENT; U.S. CUSTOMS

AND BORDER PROTECTION,

Defendants-Appellants.

No. 15-56434

D.C. No.

2:85-cv-04544-

DMG-AGR

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted June 7, 2016

Pasadena, California

Filed July 6, 2016

Before: Ronald M. Gould, Michael J. Melloy*,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz

SUMMARY**

Immigration

The panel affirmed in part and reversed in part the

district court’s order granting the motion of a plaintiff class

to enforce a 1997 Settlement with the government which set

a nationwide policy for the detention, release, and treatment

of minors detained in Immigration and Naturalization

Service custody, and remanded for further proceedings.

The panel held that the Settlement unambiguously

applies both to minors who are accompanied and

unaccompanied by their parents. The panel held, however,

that the district court erred in interpreting the Settlement to

provide release rights to accompanying adults. The panel

also held that the district court did not abuse its discretion in

denying the government’s motion to amend the Settlement.

COUNSEL

Leon Fresco (argued), Deputy Assistant Attorney General;

Sarah B. Fabian, Senior Litigation Counsel; William C.

Peachey, Director, District Court Section; Benjamin C.

Mizer, Principal Deputy Assistant Attorney General, Civil

Division; United States Department of Justice, Office of

Immigration Litigation, Washington, D.C.; for DefendantsAppellants.

Peter Anthony Schey (argued) and Carlos R. Holguin,

Center for Human Rights and Constitutional Law, Los

Angeles, California; T. Wayne Harman and Elena Garcia,

Orrick, Herrington & Sutcliffe LLP, Los Angeles,

California; for Plaintiff-Appellee.

OPINION

HURWITZ, Circuit Judge:

In 1997, the plaintiff class (“Flores”) and the government

entered into a settlement agreement (the “Settlement”)

which “sets out nationwide policy for the detention, release,

and treatment of minors in the custody of the INS.”

Settlement ¶ 9. The Settlement creates a presumption in

favor of releasing minors and requires placement of those

not released in licensed, non-secure facilities that meet

certain standards.

In 2014, in response to a surge of Central Americans

attempting to enter the United States without documentation,

the government opened family detention centers in Texas

and New Mexico. The detention and release policies at these

centers do not comply with the Settlement. The government,

however, claims that the Settlement only applies to

unaccompanied minors and is not violated when minors

accompanied by parents or other adult family members are

placed in these centers.

In 2015, Flores moved to enforce the Settlement, arguing

that it applied to all minors in the custody of immigration

authorities. The district court agreed, granted the motion to

enforce, and rejected the government’s alternative motion to

modify the Settlement. The court ordered the government

to: (1) make “prompt and continuous efforts toward family

reunification,” (2) release class members without

unnecessary delay, (3) detain class members in appropriate

facilities, (4) release an accompanying parent when releasing

a child unless the parent is subject to mandatory detention or

poses a safety risk or a significant flight risk, (5) monitor

compliance with detention conditions, and (6) provide class

counsel with monthly statistical information. The

government appealed, challenging the district court’s

holding that the Settlement applied to all minors in

immigration custody, its order to release parents, and its

denial of the motion to modify.

Although the issues underlying this appeal touch on

matters of national importance, our task is straightforward—

we must interpret the Settlement. Applying familiar

principles of contract interpretation, we conclude that the

Settlement unambiguously applies both to accompanied and

unaccompanied minors, but does not create affirmative

release rights for parents. We therefore affirm the district

court in part, reverse in part, and remand.

BACKGROUND

I. History of the Litigation

In 1984, the Western Region of the Immigration and

Naturalization Service (“INS”) adopted a policy prohibiting

the release of detained minors to anyone other than “a parent

or lawful guardian, except in unusual and extraordinary

cases.” Reno v. Flores, 507 U.S. 292, 296 (1993) (quotation

marks omitted). The next year, Flores filed this action in the

Central District of California, challenging that policy and the

conditions under which juveniles were detained pursuant to

the policy. Id.

In 1986, the district court certified two classes:

1. All persons under the age of eighteen (18)

years who have been, are, or will be arrested

and detained pursuant to 8 U.S.C. § 1252 by

the Immigration and Naturalization Service

(“INS”) within the INS’ Western Region and

who have been, are, or will be denied release

from INS custody because a parent or legal

guardian fails to personally appear to take

custody of them.

2. All persons under the age of eighteen (18)

years who have been, are, or will be arrested

and detained pursuant to 8 U.S.C. § 1252 by

the Immigration and Naturalization Service

(“INS”) within the INS’ Western Region and

who have been, are, or will be subjected to

any of the following conditions:

a. inadequate opportunities for

exercise or recreation;

b. inadequate educational instruction;

c. inadequate reading materials;

d. inadequate opportunities for

visitation with counsel, family,

and friends;

e. regular contact as a result of

confinement with adult detainees

unrelated to such minors either by

blood, marriage, or otherwise;

f. strip or body cavity search after

meeting with counsel or at any

other time or occasion absent

demonstrable adequate cause.

In 1987, the court approved a consent decree settling the

detention condition claims. Id. That agreement required the

government to “house all juveniles detained more than 72

hours following arrest in a facility that meets or exceeds”

certain standards, except in “unusual and extraordinary

circumstances.”

The district court then granted the Flores class partial

summary judgment on the claim that the INS violated the

Equal Protection Clause by treating alien minors in

deportation proceedings differently from alien minors in

exclusion proceedings, the latter of whom were sometimes

released to adults other than their parents. Id. In response,

the INS adopted a rule allowing juveniles to be released to

their parents, adult relatives, or custodians designated by

their parents; if no adult relative was available, the rule gave

the INS discretion to release a detained relative with the

child. Id. at 296–97; see Detention and Release of Juveniles,

53 Fed. Reg. 17449, 17451 (1988) (now codified, as

amended, at 8 C.F.R. § 236.3). The Supreme Court upheld

the INS rule against Flores’ facial Due Process challenge.

Flores, 507 U.S. at 315.

II. The Settlement

In 1997, the district court approved the Settlement. The

Settlement defines a “minor” as “any person under the age

of eighteen (18) years who is detained in the legal custody

of the INS,” except for “an emancipated minor or an

individual who has been incarcerated due to a conviction for

a criminal offense as an adult.” Settlement ¶ 4. The

Settlement defines the contracting class similarly, as “[a]ll

minors who are detained in the legal custody of the INS.”

Id. ¶ 10.

The Settlement provides that “[w]henever the INS takes

a minor into custody, it shall expeditiously process the minor

and shall provide the minor with a notice of rights.” Id. ¶

12(A). “Following arrest, the INS shall hold minors in

facilities that are safe and sanitary and that are consistent

with the INS’s concern for the particular vulnerability of

minors.” Id. Within five days of arrest, the INS must

transfer the minor to a non-secure, licensed facility; but “in

the event of an emergency or influx of minors into the United

States,” the INS need only make the transfer “as

expeditiously as possible.” Id.

The Settlement creates a presumption in favor of release

and favors family reunification:

Where the INS determines that the detention

of the minor is not required either to secure

his or her timely appearance before the INS

or the immigration court, or to ensure the

minor’s safety or that of others, the INS shall

release a minor from its custody without

unnecessary delay, in the following order of

preference, to:

A. a parent;

B. a legal guardian;

C. an adult relative (brother, sister, aunt,

uncle, or grandparent);

D. an adult individual or entity

designated by the parent or legal

guardian . . .

E. a licensed program willing to accept

legal custody; or

F. an adult individual or entity seeking

custody . . .

Id. ¶ 14; see also id. ¶ 18 (requiring “prompt and continuous

efforts . . . toward family reunification and the release of the

minor”). But, if the INS does not release a minor, it must

place her in a “licensed program.” Id. ¶ 19. A “licensed

program” is one “licensed by an appropriate State agency to

provide residential, group, or foster care services for

dependent children,” which must be “non-secure as required

under state law” and meet the standards set forth in an exhibit

attached to the Settlement. Id. ¶ 6. Those standards include

food, clothing, grooming items, medical and dental care,

individualized needs assessments, educational services,

recreation and leisure time, counseling, access to religious

services, contact with family members, and a reasonable

right to privacy. Some minors, such as those who have

committed crimes, may be held in a juvenile detention

facility instead of a licensed program. Id. ¶ 21.

The Settlement generally provides for the enforcement

in the Central District of California, id. ¶ 37, but allows

individual challenges to placement or detention conditions

to be brought in any district court with jurisdiction and

venue, id. ¶ 24(B). The Settlement originally was to

terminate no later than 2002. Id. ¶ 40. But, in 2001, the

parties stipulated that the Settlement would terminate “45

days following defendants’ publication of final regulations

implementing this Agreement.” The government has not yet

promulgated those regulations.

III. Developments Subsequent to the Settlement

Before 2001, “families apprehended for entering the

United States illegally were most often released rather than

detained because of a limited amount of family bed space;

families who were detained had to be housed separately,

splitting up parents and children.” Bunikyte ex rel.

Bunikiene v. Chertoff, No. 1:07-cv-00164-SS, 2007 WL

1074070, at *1 (W.D. Tex. Apr. 9, 2007). “In the wake of

September 11, 2001, however, immigration policy

fundamentally changed,” with “more restrictive immigration

controls, tougher enforcement, and broader expedited

removal of illegal aliens,” which “made the automatic

release of families problematic.” Id.

In 2001, the INS converted a nursing home in Berks

County, Pennsylvania (“Berks”) into its first family

detention center. Id. Because Pennsylvania has no licensing

requirements for family residential care facilities, Berks has

been monitored and licensed by state authorities under the

state standards applicable to child residential and day

treatment facilities. Id. at *8.

In 2002, Congress enacted the Homeland Security Act,

Pub. L. No. 107-296, 116 Stat. 2135, abolishing the INS and

transferring most of its immigration functions to the newlyformed

Department of Homeland Security (“DHS”), in

which Immigration and Customs Enforcement (“ICE”) is

housed. 6 U.S.C. §§ 111, 251, 291. The Homeland Security

Act transferred responsibility for the care and custody of

unaccompanied alien children to the Office of Refugee

Resettlement in the Department of Health and Human

Services. 6 U.S.C. § 279(a), (b)(1)(A), (g)(2).

In 2006, DHS converted a medium security prison in

Taylor, Texas into its second family detention facility, the

Don T. Hutto Family Residential Center (“Hutto”).

Bunikyte, 2007 WL 1074070, at *1. In 2007, three children

at Hutto, who were not represented by Flores’ class counsel,

filed suit in the Western District of Texas, contending that

the conditions at Hutto violated the Settlement. Id. at *1–2.

In response, the government argued that the Settlement

applied only to unaccompanied minors. The district court

rejected that argument, holding that “by its terms, [the

Settlement] applies to all ‘minors in the custody’ of ICE and

DHS, not just unaccompanied minors.” Id. at *2–3 (quoting

Settlement ¶ 9). The court then concluded that the minors’

confinement at Hutto violated the Settlement’s detention

standards, id. at *6–15, but rejected the claim that the

Settlement entitled the plaintiffs to have their parents

released with them, id. at *16. The suit settled before trial.

In re Hutto Family Det. Ctr., No. 1:07-cv-00164-SS, Dkt.

94, (W.D. Tex. Aug. 26, 2007)

In 2008, Congress enacted the William Wilberforce

Trafficking Victims Protection Reauthorization Act of 2008

(“TVPRA”), Pub. L. No. 110-457, 122 Stat. 5044

(principally codified in relevant part at 8 U.S.C. § 1232).

TVPRA partially codified the Settlement by creating

statutory standards for the treatment of unaccompanied

minors. See, e.g., 8 U.S.C. § 1232(c)(2)(A) (an

unaccompanied alien child “shall be promptly placed in the

least restrictive setting that is in the best interest of the

child,” subject to considerations of flight and danger).

IV. The Enforcement Action and R.I.L-R v. Johnson

In 2014, a surge of undocumented Central Americans

arrived at the U.S.-Mexico border. In response, ICE opened

family detention centers in Karnes City and Dilley, Texas,

and Artesia, New Mexico. It closed the Artesia center later

that year. The detention centers operate under ICE’s Family

Residential Detention Standards, which do not comply with

the Settlement.

In January 2015, a group of Central American migrants,

who were not represented by Flores class counsel, filed a

putative class action, claiming that the government had

adopted a no-release policy as to Central American families,

and challenging that alleged policy under the Due Process

Clause. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 170 (D.D.C.

2015). On February 20, 2015, the U.S. District Court for the

District of Columbia granted the plaintiffs’ motion for a

preliminary injunction. Id. at 171. The court found that ICE

had not adopted a blanket no-release policy, but found ample

support for the plaintiffs’ alternative contention that “DHS

policy directs ICE officers to consider deterrence of mass

migration as a factor in their custody determinations, and

that this policy has played a significant role in the recent

increased detention of Central American mothers and

children.” Id. at 174. The court preliminarily enjoined the

government from using deterrence as a factor in detaining

class members. R.I.L-R v. Johnson, No. 1:15-cv-00011-

JEB, Dkt. 32 (D.D.C. Feb. 20, 2015).

In May 2015, the government notified the court that it

had decided “to discontinue, at this time, invoking

deterrence as a factor in custody determinations in all cases

involving families, irrespective of the outcome of this

litigation,” while maintaining that it could lawfully reinstate

the policy. Id. Dkt. 40. In June 2015, by the agreement of

the parties, the district court in R.I.L-R dissolved the

preliminary injunction and closed the case, allowing

plaintiffs to move to reinstate the preliminary injunction if

the government again invoked deterrence in custody

determinations. Id. Dkt. 43.

Meanwhile, on February 2, 2015, Flores filed a motion

in the U.S. District Court for the Central District of

California to enforce the Settlement, arguing that ICE had

breached it by (1) adopting a no-release policy, and

(2) confining children in the secure, unlicensed facilities at

Dilley and Karnes.1 The government argued in response that

the Settlement does not apply to accompanied minors, and

filed an alternative motion to amend the Settlement to so

provide. On July 24, 2015, the district court granted Flores’

motion, denied the government’s motion to amend, and also

held that the Settlement requires release of a minor’s

accompanying parent, “as long as doing so would not create

a flight risk or a safety risk.”2 On August 21, 2015, the

district court filed a remedial order. The government timely

appealed. We have jurisdiction under 28 U.S.C. § 1292.

STANDARD OF REVIEW

The Settlement is a consent decree, which, “like a

contract, must be discerned within its four corners, extrinsic

evidence being relevant only to resolve ambiguity in the

decree.” United States v. Asarco Inc., 430 F.3d 972, 980 (9th

Cir. 2005). We review the district court’s interpretation of

the contract de novo. Miller v. Safeco Title Ins. Co.,

758 F.2d 364, 367 (9th Cir. 1985). “Motions for relief from

judgment under Rule 60(b) are reviewed for abuse of

discretion.” Asarco, 430 F.3d at 978.

DISCUSSION

I. The Settlement Applies to Accompanied Minors

We agree with the district court that “[t]he plain

language of the Agreement clearly encompasses

accompanied minors.” First, the Settlement defines minor

as “any person under the age of eighteen (18) years who is

detained in the legal custody of the INS”; describes its scope

as setting “nationwide policy for the detention, release, and

treatment of minors in the custody of the INS”; and defines

the class as “[a]ll minors who are detained in the legal

custody of the INS.” Settlement ¶¶ 4, 9, 10. Second, as the

district court explained, “the Agreement provides special

guidelines with respect to unaccompanied minors in some

situations,” and “[i]t would make little sense to write rules

making special reference to unaccompanied minors if the

parties intended the Agreement as a whole to be applicable

only to unaccompanied minors.” See id. ¶ 12(A) (“The INS

will segregate unaccompanied minors from unrelated

adults.”); id. ¶ 25 (“Unaccompanied minors arrested or taken

into custody by the INS should not be transported by the INS

in vehicles with detained adults except . . . .”). Third, as the

district court reasoned, “the Agreement expressly identifies

those minors to whom the class definition would not

apply”—emancipated minors and those who have been

incarcerated for a criminal offense as an adult; “[h]ad the

parties to the Agreement intended to exclude accompanied

minors from the Agreement, they could have done so

explicitly when they set forth the definition of minors who

are excluded from the Agreement.” See id. ¶ 4.

The government nevertheless argues that certain terms

of the Settlement show that it was never meant to cover

accompanied minors. The Settlement defines “licensed

program” as “any program, agency or organization that is

licensed by an appropriate State agency to provide

residential, group, or foster care services for dependent

children, including a program operating group homes, foster

homes, or facilities for special needs minors.” Id. ¶ 6. The

government contends that this makes only “dependent

minors” eligible for licensed programs; that Black’s Law

Dictionary defines dependent minors to exclude

accompanied minors, see Child, Black’s Law Dictionary

(10th ed. 2014); and that it would make little sense for the

Settlement to apply to accompanied minors but exclude them

from licensed programs. We reject this argument. That a

program is “licensed . . . to provide . . . services for

dependent children” does not mean that only dependent

children can be placed in that program. And, the definition

of “licensed program” does not indicate any intent to exclude

accompanied minors; rather, its obvious purpose is to use the

existing apparatus of state licensure to independently review

detention conditions.

At oral argument, the government cited a provision of

the Settlement requiring that, “[b]efore a minor is released

from INS custody pursuant to Paragraph 14 above, the

custodian must execute an Affidavit of Support (Form I-134)

and an agreement to,” among other things, provide for the

minor’s well-being and ensure the minor’s presence at

immigration proceedings. Settlement ¶ 15. The government

claims that the reference to the “custodian” demonstrates

that the Settlement did not contemplate releasing a child to

an accompanying parent. The government is right in one

sense—the Settlement does not contemplate releasing a

child to a parent who remains in custody, because that would

not be a “release.” But, it makes perfect sense to require an

aunt who takes custody of a child to sign an affidavit of

support, whether or not the child was arrested with his

mother.

The government correctly notes that the Settlement does

not address the potentially complex issues involving the

housing of family units and the scope of parental rights for

adults apprehended with their children. For example,

Exhibit 1, which sets forth requirements for licensed

programs, does not contain standards related to the detention

of adults or family units. But, the fact that the parties gave

inadequate attention to some potential problems of

accompanied minors does not mean that the Settlement does

not apply to them. See Bunikyte, 2007 WL 1074070, at *3

(“Though it is no defense that the Flores Settlement is

outdated, it is apparent that this agreement did not anticipate

the current emphasis on family detention. . . . Nonetheless,

the Flores Settlement, by its terms, applies to all ‘minors in

the custody’ of ICE and DHS, not just unaccompanied

minors.”) (quoting Settlement ¶ 9); id. (“Paragraph 19 sets

out the foundation of the detention standards applicable to

any minor in United States immigration custody, and there

is no reason why its requirements should be any less

applicable in a family detention context than in the context

of unaccompanied minors.”).

The government next argues that the Complaint and

certified classes were limited to unaccompanied minors, and

that the parties therefore could not have entered into a

Settlement granting rights to accompanied minors. To be

sure, this litigation initially focused on the problems facing

unaccompanied minors, who then constituted 70% of

immigrant children arrested by the INS. See Flores,

507 U.S. at 295. But, the Complaint was not limited to

unaccompanied minors. The conduct Flores challenged—

INS detention conditions and the Western Region release

policy—applied to accompanied and unaccompanied minors

alike. See Complaint ¶ 50 (challenging the INS’ “policy to

indefinitely jail juveniles, particularly those whose parents

INS agents suspect may be aliens unlawfully in the United

States, unless and until their parent or legal guardian

personally appears before an INS agent for interrogation and

to accept physical custody of the minor.”); id. ¶¶ 65, 70–79

(challenging juveniles’ condition of confinement in INS

facilities, including the lack of education, recreation, and

visitation, and the imposition of strip searches). So did the

remedies sought and the classes the district court certified.

See id. at 29 ¶ 4 (requesting an order that the INS admit

juveniles to bail without requiring that their parents or legal

guardians appear before INS agents); Order re Class

Certification (certifying a class for the release claims and a

class for the detention conditions claims).

The government has not explained why the detention

claims class would exclude accompanied minors; minors

who arrive with their parents are as desirous of education and

recreation, and as averse to strip searches, as those who come

alone. As for release, the government focuses narrowly on

the release class definition. See Order re Class Certification

at 2 (defining the release class to include all minors arrested

in the INS’ Western Region “who have been, are, or will be

denied release from INS custody because a parent or legal

guardian fails to personally appear to take custody of them”).

But, the release class was certified expressly to challenge the

Western Region’s policy of not releasing detained minors to

anyone other than a parent or guardian. Complaint ¶ 50; see

also Flores, 507 U.S. at 296. That policy applied equally to

accompanied minors, such as a boy detained with his mother

who wanted to be released to his aunt but was refused

because his father “fail[ed] to personally appear to take

custody of [him].” See Order re Class Certification at 2.

The government also contends that, because the four

named plaintiffs in the Complaint were unaccompanied, a

class including accompanied minors would run afoul of the

requirements of typicality and representativeness. See Fed.

R. Civ. P. 23. The government’s factual premise is

questionable: one of the named plaintiffs was accompanied

at the time of arrest by her adult brother, although he was

released without her. Complaint ¶ 34. But, more

importantly, the government waived its ability to challenge

the class certification when it settled the case and did not

timely appeal the final judgment. And, to the extent this and

other arguments are aimed at providing extrinsic evidence of

the meaning of the Settlement, they fail because the

Settlement unambiguously applies to accompanied minors.

See Asarco, 430 F.3d at 980.

II. The Settlement Does Not Require the Government to

Release Parents

Flores’ motion to enforce argued that ICE’s purported

no-release policy, which allegedly denied accompanying

parents “any chance for release,” frustrated the minor class

members’ right to preferential release to a parent, and that to

safeguard that right, ICE was required to give parents

individualized custody determinations. After the district

court tentatively agreed, Flores went further, proposing an

order providing that “Defendants shall comply with the

Settlement ¶ 14(a) by releasing class members without

unnecessary delay in first order of preference to a parent,

including a parent subject to release who presented her or

himself or was apprehended by Defendants accompanied by

a class member.”

While acknowledging that “the Agreement does not

contain any provision that explicitly addresses adult rights

and treatment in detention,” the district court nonetheless

reasoned that “ICE’s blanket no-release policy with respect

to mothers cannot be reconciled with the Agreement’s grant

to class members of a right to preferential release to a

parent.” The court also found that the regulation upheld in

Flores, 507 U.S. at 315, supported the release of an

accompanying relative. See 8 C.F.R. § 212.5(b)(3)(ii) (“If a

relative who is not in detention cannot be located to sponsor

the minor, the minor may be released with an accompanying

relative who is in detention.”). It also found support for that

conclusion in ICE’s practice, until June 2014, of generally

releasing parents who were not flight or safety risks.

The district court therefore concluded that the

government “must release an accompanying parent as long

as doing so would not create a flight risk or a safety risk,”

and it ordered:

To comply with Paragraph 14A of the

Agreement and as contemplated in Paragraph

15, a class member’s accompanying parent

shall be released with the class member in

accordance with applicable laws and

regulations unless the parent is subject to

mandatory detention under applicable law or

after an individualized custody determination

sthe parent is determined to pose a significant

flight risk, or a threat to others or the national

security, and the flight risk or threat cannot

be mitigated by an appropriate bond or

conditions of release.

The district court erred in interpreting the Settlement to

provide release rights to adults. The Settlement does not

explicitly provide any rights to adults. Bunikyte, 2007 WL

1074070 at *16. The fact that the Settlement grants class

members a right to preferential release to a parent over others

does not mean that the government must also make a parent

available; it simply means that, if available, a parent is the

first choice. Because “the plain language of [the] consent

decree is clear, we need not evaluate any extrinsic evidence

to ascertain the true intent of the parties.” See Nehmer v.

U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 861 (9th Cir.

2007). In any case, the extrinsic evidence does not show that

the parties intended to grant release rights to parents. “In

fact, the context of the Flores Settlement argues against this

result: the Settlement was the product of litigation in which

unaccompanied minors argued that release to adults other

than their parents was preferable to remaining in custody

until their parents could come get them.” Bunikyte, 2007

WL 1074070 at *16. The regulation the district court relied

upon at most shows that the parties might have thought about

releasing adults when executing the Settlement, not that they

agreed to do so in that document. And, there is no evidence

that ICE once released most children and parents because of

the Settlement, rather than for other reasons.

Flores suggests that we construe the district court’s order

narrowly, arguing that it only requires, as she initially

requested, that the government grant accompanying parents

individualized custody determinations “in accordance with

applicable laws and regulations,” just as it would single

adults. But, the district court plainly went further. A noncriminal

alien detained during removal proceedings

generally bears the burden of establishing “that he or she

does not present a danger to persons or property, is not a

threat to the national security, and does not pose a risk of

flight.” In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006).

But, the district court placed the burden on the government,

requiring it to release an accompanying parent “unless the

parent is subject to mandatory detention under applicable

law or after an individualized custody determination the

parent is determined to pose a significant flight risk, or a

threat to others or the national security.” In addition, the

order requires a “significant flight risk” to justify detention,

while the usual standard is merely “a risk of flight.” Id.

More importantly, parents were not plaintiffs in the Flores

action, nor are they members of the certified classes. The

Settlement therefore provides no affirmative release rights

for parents, and the district court erred in creating such rights

in the context of a motion to enforce that agreement.

III. The District Court Correctly Denied the

Government’s Motion to Amend the Settlement

Even if the Settlement applies to accompanied minors,

the government argues that it is “no longer equitable” to

apply it as written. See Fed. R. Civ. P. 60(b)(5) (allowing

relief from judgment if “applying it prospectively is no

longer equitable”); Horne v. Flores, 557 U.S. 433, 447

(2009) (“Rule 60(b)(5) serves a particularly important

function in what we have termed ‘institutional reform

litigation.’”). The district court denied this motion. We

review that decision for abuse of discretion. Asarco,

430 F.3d at 978.

“[A] party seeking modification of a consent decree

bears the burden of establishing that a significant change in

circumstances warrants revision of the decree. If the moving

party meets this standard, the court should consider whether

the proposed modification is suitably tailored to the changed

circumstance.” Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S.

367, 383 (1992). When the basis for modification is a

change in law, the moving party must establish that the

provision it seeks to modify has become “impermissible.”

Id. at 388.

The government first argues that the Settlement should

be modified because of the surge in family units crossing the

Southwest border. “Ordinarily, however, modification

should not be granted where a party relies upon events that

actually were anticipated at the time it entered into a decree.”

Id. at 385. The Settlement expressly anticipated an influx,

and provided that, if one occurred, the government would be

given more time to release minors or place them in licensed

programs. Settlement ¶ 12. And, even if the parties did not

anticipate an influx of this size, we cannot fathom how a

“suitably tailored” response to the change in circumstances

would be to exempt an entire category of migrants from the

Settlement, as opposed to, say, relaxing certain requirements

applicable to all migrants. See Rufo, 502 U.S. at 383.

The government also argues that the law has changed

substantially since the Settlement was approved. It cites

Congress’ authorization of expedited removal—but that

occurred in 1996, before the Settlement was approved. See

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. 104–208, § 302, 110 Stat. 3009-546,

579–85 (1996). The government also notes that the

Homeland Security Act of 2002 reassigned the immigration

functions of the former INS to DHS; but there is no reason

why that bureaucratic reorganization should prohibit the

government from adhering to the Settlement. See Settlement

¶ 1 (“As the term [party] applies to Defendants, it shall

include their . . . successors in office.”).

The government also argues that some provisions of the

TVPRA regarding the detention and release of

unaccompanied minors are inconsistent with the Settlement.

At most, that might support modification of the conflicting

provisions so that they no longer apply to the

unaccompanied minors covered by the TVPRA. But, the

creation of statutory rights for unaccompanied minors does

not make application of the Settlement to accompanied

minors “impermissible.” The district court did not abuse its

discretion in denying the motion to amend on the record

before it.

CONCLUSION

We hold that the Settlement applies to accompanied

minors but does not require the release of accompanying

parents. We therefore affirm in part, reverse in part, and

remand for further proceedings consistent with this opinion.5

Each party shall bear its own costs.