Jenny Lisette FLORES, Plaintiff-Appellee, v. Jefferson B. SESSIONS III, Attorney General; Thomas E. Price, M.D., Secretary of Health and Human Services; John Kelly, Secretary of Homeland Security; U.S. Department of Homeland Security; U.S. Immigration and Customs Enforcement, Defendants-Appellants.
No. 17-55208
United States Court of Appeals, Ninth Circuit
July 05, 2017
862 F.3d 863
Argued and Submitted April 18, 2017, San Francisco, California
To determine whether a law has retroactive effect, we consider “whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In conducting this inquiry, “familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” Id. Defendants rely primarily on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), in which St. Cyr, a citizen of Haiti, pleaded guilty to a deportable offense. At the time St. Cyr pleaded guilty, he was eligible to apply for discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act of 1952. Id. at 294-95, 121 S.Ct. 2271. After his plea, Congress amended the statute and abolished this form of discretionary relief. As a result, St. Cyr faced “certain deportation.” Id. at 325, 121 S.Ct. 2271. St. Cyr‘s habeas petition alleged that retroactive application of the repeal impermissibly undercut his settled expectation, at the time of his plea, that he would be eligible for relief under § 212(c). The Supreme Court agreed, concluding that application of the new statute “impose[d] an impermissible retroactive effect on aliens who, in reliance on the possibility of § 212(c) relief, pleaded guilty to aggravated felonies.” Id. at 315, 121 S.Ct. 2271.
The reasoning of St. Cyr does not apply here. The discretionary waiver under § 212(c), upon which St. Cyr relied, already existed when he pleaded guilty. By contrast, Amendment 782, which provides the basis for Defendants’ motions, was promulgated after their pleas. Amendment 782 provides a basis for sentence reductions, but is governed by limitations on such reductions. Because of the limitations, Defendants receive no benefit from Amendment 782. But their failure to receive such benefit is not, as in St. Cyr, the result of a retroactive deprivation of a preexisting benefit. Rather, it is the result of a prospective grant of a limited benefit. See Tercero, 734 F.3d at 980-81; see also United States v. Erskine, 717 F.3d 131, 134 (2d Cir. 2013) (granting a limited reduction).
Conclusion
Because
AFFIRMED.
Vinita Andrapalliyal, Sarah Fabian, Trial Attorney, August E. Flentje, DOJ—U.S. DEPARTMENT OF JUSTICE, Civil Division/Office of Immigration Litigation, Washington, DC, for Defendants-Appellants.
Jack Williford Londen, Morrison & Foerster LLP, San Francisco, CA, for Amicus Curiae Youth Advocacy Organizations.
Stephen B. Kang, ACLU Foundation of Northern California, San Francisco, CA, for Amici Curiae ACLU Immigrants’ Rights Project and ACLU of Southern California.
Austin Manes, Kramer Levin Naftalis & Frankel LLP, Menlo Park, CA, for Amici Curiae SAFE Passage Project Clinical Course at New York Law School and 23 Professors in Law School Clinics and Clinical Courses Throughout the United States Who Represent Unaccompanied Immigrant Youth.
Before: REINHARDT, TASHIMA, and BERZON, Circuit Judges.
OPINION
Opinion by Judge REINHARDT:
In this case we apply the straightforward tools of statutory construction in order to determine what the statutes before us are designed to do and not do. In performing this task we, of course, start by examining the words of the statutes. We then look to the statutes’ clear purpose and intent. Specifically, we ask whether, without even mentioning the subject, the statutes invalidate a key provision of a consent decree to which the government is bound. In the process, we encounter a bureaucratic maze of alphabet agencies and examine how they can work together to carry out their shared and overlapping statutory duties. In the end, however, we arrive a simple answer to our question. If Congress had intended to terminate the settlement agreement in whole or in part, it would have said so.
Introduction
On January 28, 1997, the district court approved a settlement between the plaintiff class and the federal government establishing a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Flores Settlement at ¶ 9. The “Flores Settlement” sets the minimum standards for the detention, housing, and release of non-citizen juveniles who are detained by the government, and obliges the government to pursue a “general policy favoring release” of such juveniles. Id. at ¶ 14. Pursuant to this goal, Paragraph 24A of the Settlement provides that a “minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge.” Id. at ¶ 24A. The question before us today is whether, in light of changes to the statutory law, this provision remains in effect in the case of unaccompanied minors.1
Our reading of the statutes is dictated by the ordinary tenets of statutory construction. By their plain text, neither law explicitly terminates the bond-hearing requirement for unaccompanied minors. Moreover, the statutory framework enacted by the HSA and TVPRA does not grant ORR exclusive and autonomous control over the detention of unaccompanied minors. Rather, the statutes leave ample room for immigration judges to conduct bond hearings for these children. Additionally, holding that the HSA and TVPRA do not deny unaccompanied minors the right to a bond hearing under Paragraph 24A affirms Congress‘s intent in passing both laws. These statutes sought to protect a uniquely vulnerable population: unaccompanied children. In enacting the HSA and TVPRA, Congress desired to better provide for unaccompanied minors. Depriving these children of their existing right to a bond hearing is incompatible with such an aim.
The bond hearing under Paragraph 24A is a fundamental protection guaranteed to unaccompanied minors under the Flores Settlement. As was true prior to the HSA and TVPRA, these proceedings do not afford unaccompanied minors the same rights that may be gained through an ordinary bond hearing. Specifically, they do not result in the setting of bail. Even if the immigration judge determines that the form of detention ORR has imposed is improper, the government must still identify a safe and secure placement into which the child can be released. As a result, a favorable finding in a hearing under Paragraph 24A does not entitle minors to release.
However, such a hearing does provide minors with meaningful rights and practical benefits. The hearing is a forum in which a child has the right to be represented by counsel, and to have the merits of his or her detention assessed by an independent immigration judge. The hearing is also an opportunity for counsel to bring forth the reasons for the minor‘s detention, examine and rebut the government‘s evidence, and build a record regarding the child‘s custody. Without such hearings, these children have no meaning-
In the absence of such hearings, these children are held in bureaucratic limbo, left to rely upon the agency‘s alleged benevolence and opaque decision making. A hearing under Paragraph 24A provides meaningful protections against such perfunctory and ad hoc determinations. For all children in ORR custody, these hearings compel the agency to provide its justifications and specific legal grounds for holding a given minor. The record shows that, in the absence of such hearings, unaccompanied minors, their parents, and their counsel are often given conflicting or confusing information about why a child is being detained. Bond hearings provide the concrete information needed to advocate for a minor‘s release.
For those minors in secure detention, bond hearings additionally provide an opportunity to contest the basis of such confinement. For example, the TVPRA allows children to be placed in secure detention facilities only if they pose a safety risk to themselves or others, or have committed a criminal offense. These are precisely the determinations made by an immigration judge at a bond hearing.
Providing unaccompanied minors with the right to a hearing under Paragraph 24A therefore ensures that they are not held in secure detention without cause. Finally, bond hearings help to guide ORR in making its placement determinations for unaccompanied minors. By allowing an immigration judge to assess the merits of a child‘s ongoing detention, bond hearings provide ORR with valuable information that helps the agency determine the appropriate custody of unaccompanied minors in a fairer and less arbitrary manner.
As was the case under the Flores Settlement prior to the passage of the HSA and TVPRA, the determinations made at hearings held under Paragraph 24A will not compel a child‘s release. Regardless of the outcome of a bond hearing, a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement. At the time of the Settlement, that responsibility fell to the former INS; now, under the HSA and TVPRA, it rests with ORR. Thus, since well before the time the Settlement went into effect, bond hearings have not controlled the custody of unaccompanied minors. Yet the fact that the rights afforded by such hearings may be imperfect does not mean that the government may simply strip them from unaccompanied minors. Indeed, the fact that the plaintiffs are so vigorously fighting to retain the bond hearings, and the government so vigorously fighting to abolish them, may offer some indication that the hearings remain of practical importance. It is in this context that we examine the two statutes that the government contends terminate this key provision of the Flores Settlement.3
The Flores Settlement
The Flores Settlement arose out of a lawsuit first filed by plaintiffs in the Central District of California in 1985, challenging the policies of the Immigration and Naturalization Service (INS) regarding the release of detained minors. In 1997, the district court approved the current Settlement, which defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS,” Flores Settlement at ¶ 4,4 and the certified class as “[a]ll minors who are detained in the legal custody of the INS,” id. at ¶ 10. The Settlement favors family reunification, and states the order of preference for persons into whose custody detained minors are to be released, provided that detention is not required to secure their appearance before immigration authorities or to ensure the safety of themselves or others. Id. at ¶ 14. The Settlement also addresses the appropriate care of those minors who cannot be immediately released, and who therefore remain in federal custody. Id. at ¶¶ 12A, 19-24. This includes providing such minors with the bond hearing that is the subject of this dispute.
Paragraph 24A of the Flores Settlement provides that:
A minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge in every case, unless the minor indicates on the Notice of Custody Determination form that he or she refuses such a hearing.5
Id. at ¶ 24. We discuss the function and purpose of this hearing throughout this opinion.
The Flores Settlement was intended as a temporary measure, but in 2001 the parties stipulated that it would remain in effect until “45 days following defendants’ publication of final regulations” governing the treatment of detained, minors. It has now been twenty years since the Settlement first went into effect, and the government has not published any such rules or regulations. Thus, pursuant to the 2001 agreement, the Settlement continues to govern those agencies that now carry out the functions of the former INS. It is the position of the government, however, that Paragraph 24A has been terminated as to unaccompanied minors by the statutory
Statutes Following the Flores Settlement
In the two decades since the Flores Settlement was approved, there have been dramatic changes to the bureaucratic landscape of immigration law. Twice, Congress has passed laws directly addressing the care and custody of unaccompanied minors.
In 2002, Congress passed the Homeland Security Act (the “HSA“),
Additionally the HSA includes a savings clause, which preserves those administrative actions to which the INS was a party. This clause provides that:
Completed administrative actions of an agency ... shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law by an officer of the United States or a court of competent jurisdiction, or by operation of law.
In 2008, Congress again addressed the treatment of unaccompanied minors when it passed the Trafficking Victims Protection Reauthorization Act (“TVPRA“),
The TVPRA directs that “any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to [HHS] not later than 72 hours after determining that such child is an unaccompanied alien child.”
Additionally, although the TVPRA grants ORR responsibility for the placement of unaccompanied minors, it does not give the agency exclusive control. Instead, like the HSA, the TVPRA directs ORR to consult with other government actors, and also requires that the agency assist unaccompanied minors in navigating the general immigration system.
Current Detention Practices of ORR
ORR publishes a guide that describes its policies for determining whether to detain or release unaccompanied minors. See U.S. Department of Health and Human Services, ORR Guide: Children Entering the United States Unaccompanied (“ORR Guide“).8 These policies are posted on ORR‘s website but are not promulgated through any formal agency rule-making process and do not appear to have any binding effect. Under the policies, the initial decision about whether to release a minor to a particular sponsor is made by the local federal field specialist. ORR
Plaintiffs submit evidence showing that, in practice, ORR currently detains unaccompanied minors for months, and even years, without providing them with any opportunity to be heard before a neutral person with authority to review the basis for the detention. One declaration, for example, is from Hector, who was detained in California at the age of 15. Although Hector‘s mother was living in Los Angeles and repeatedly attempted to get her son released into her custody,9 Hector was detained by ORR for 489 days. For most of this time, Hector was held in a juvenile detention facility in Yolo County, California, an eleven-hour drive from his home in Los Angeles. Hector describes the Yolo facility as a “real prison,” where the juvenile detainees were treated “badly, like delinquents.” Hector recalled in his declaration how the guards would “lock us up in the cells every night, to sleep on benches made out of cement with mattresses,” and said that the “entire time, we live[d] locked up.” For the sixteen months that Hector was detained, ORR never provided him or his attorney with an explanation for his continued secure detention, gave any indication of when he might be released, or presented him for a hearing before an immigration judge. In his declaration written while still held at Yolo, Hector wrote that “I feel desperate ... [m]y only wish is to leave detention, live with my mom, and study.” On December 16, 2016, Hector finally got his wish. ORR, without any explanation for the sixteen-month delay, released Hector into the custody of the person who had been advocating for his freedom all along—his mother.
The declaration of Byron, another child detained at Yolo, tells a similar story. Byron entered the United States from El Salvador when he was three years old, and
After six weeks in detention, Byron met with an official from ORR. Byron told the official that his mother had been trying to obtain his release into her custody, and the official apparently replied that ORR would approve a home study verifying his mother‘s competency as his custodian, and that he would be released “within the next few weeks.” Byron was, understandably, overjoyed. He called his mother to tell her the good news, and for Mother‘s Day she flew to California, ready to purchase a return ticket for her son. It was then that Byron was informed that he would not, in fact, be going home. Byron did not receive anything in writing regarding the denial of his release, and neither he nor his mother was contacted by ORR about its decision.11
Byron remained in Yolo until his eighteenth birthday, at which point he was transferred to Immigration and Customs Enforcement (ICE) custody and moved to an adult jail in Yuba County, California. Shortly after his transfer, Byron requested a bond hearing before an immigration judge. The judge concluded that Byron was not a flight risk or a danger to himself
Plaintiffs also offer a declaration by the attorney for William, who was first apprehended and placed in ORR custody when he was nine years old. William‘s counsel states that she began representing the child after he had spent almost a year in a residential treatment facility. Although William wished to be reunited with his parents, who lived in Texas, ORR refused to grant his request. William‘s attorney states that at no time did ORR provide its reasons for determining that a ten-year-old child should remain in a detention facility, nor did it grant William or his parents any hearing with respect to his confinement. It was only after his counsel brought a motion to terminate removal proceedings on the basis of the child‘s incompetency that ORR “suddenly and without explanation released William to his parents.” By the time William returned home, he had spent almost a year and a half in detention.
II.
There is no question that the HSA and TVPRA gave new responsibilities to ORR with respect to the care and custody of unaccompanied minors. The issue before us, however, is whether these statutory changes terminated the Flores Settlement‘s bond-hearing requirement for such children.
A party seeking to alter the terms of a consent decree “bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Flores v. Lynch, 828 F.3d at 909 (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)).12 “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 909-10 (quoting Rufo, 502 U.S. at 383, 112 S.Ct. 748) (emphasis added). Put otherwise, in order to demonstrate that Paragraph 24A no longer applies to unaccompanied minors, the government must establish that compliance with the HSA and TVPRA would directly conflict with the Flores Agreement and convert it into an “instrument of wrong.” Sys. Fed. No. 91 Ry. Emps. Dep‘t v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961) (emphasis added); cf. City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 702 F.3d 1147, 1153-54 (8th Cir. 2013) (modifying a consent decree when a change in relevant law made “illegal what the earlier consent decree was designed to enforce“).
a. Statutory Text
In order to determine whether the HSA and TVPRA terminated Paragraph 24A‘s bond-hearing requirement with respect to unaccompanied minors, we look first to the text of the statutes themselves. They are silent. Nowhere in either statute is there any mention of bond hearings, or of an immigration judge‘s authority—or lack of authority—to review the custody status of unaccompanied minors.
The government argues that Congress‘s failure to explicitly provide for
The government‘s argument asks us to ignore our obligation to interpret statutes with the assumption that “Congress is aware of the legal context in which it is legislating.” Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 683-84 (9th Cir. 2006); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (“We assume that Congress is aware of existing law when it passes legislation“); United States v. LeCoe, 936 F.2d 398, 403 (9th Cir. 1991) (“Congress is, of course, presumed to know existing law pertinent to any new legislation it enacts.“) (citing Native Vill. of Venetie v. Alaska, 918 F.2d 797, 803 (9th Cir. 1990)). At the time it enacted the HSA and TVPRA, Congress was on notice with respect to the government‘s obligations under the nationwide Flores Settlement and resulting consent decree, which had governed the treatment of minors since 1997. Congress therefore had the opportunity to address, and to explicitly modify if it wished to do so, any provisions of the Settlement, including the bond-hearing requirement under Paragraph 24A. Yet, neither statute so much as mentions bond hearings for unaccompanied minors, let alone provides for their elimination.
We are confident that Congress‘s failure to address bond hearings in the HSA and TVPRA did not occur because Congress lacked the words to do so. Congress could have addressed the ongoing applicability of Paragraph 24A in light of the HSA and TVPRA. It did not do so. We refuse to read into such legislative silence any affirmative intent. Such a statutory omission does not render compliance with the Flores Settlement “impermissible,” Flores v. Lynch, 828 F.3d at 910 (emphasis added), nor does holding that ORR must provide bond hearings to unaccompanied minors convert the Settlement into an “instrument of wrong,” Wright, 364
b. Statutory Framework
Having concluded that the HSA and TVPRA do not explicitly supersede Paragraph 24A, we turn next to the government‘s argument that the Acts create a statutory framework that leaves “no room” for bond hearings for unaccompanied minors. This assertion rests on the premise that the breadth of ORR‘s responsibility over unaccompanied minors effectively precludes immigration judges from having any authority over their detention.
The HSA and TVPRA contain no indication that they are intended to encompass the entire immigration framework for unaccompanied minors, or to shift all related responsibilities to ORR.14 See D.B. v. Cardall, 826 F.3d 721, 731 (4th Cir. 2016) (stating that “[t]he care and custody of [unaccompanied minors] by the government is governed by a legal framework consisting primarily of two statutory provisions—§ 279 of Title 6 and § 1232 of Title 8—plus a settlement agreement that is binding on the pertinent federal agencies“) (emphasis added). The statutes do not grant ORR exclusive authority over unaccompanied minors for all purposes and in all contexts. Instead, the laws are concerned with ensuring the welfare of such children. They specifically address ORR‘s responsibility for their care and placement while in government custody, but not the procedures for determining whether they should remain in such custody.
This focus on care and placement—rather than on detention—is evident from the plain text of both statutes. The HSA grants ORR responsibility for ensuring that “the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.”
The TVPRA is similarly concerned with ORR‘s responsibility over ensuring the adequate care of unaccompanied minors. The Act puts ORR in charge of “providing safe and secure placements for children,”
That the HSA and TVPRA do not grant ORR exclusive authority over unaccompanied minors is additionally made clear by the statutes’ numerous references to other government actors. Rather than suggesting that the treatment of unaccompanied minors is governed entirely by ORR, both the HSA and TVPRA provide instead for a degree of cooperation between ORR and outside agencies. The HSA, for example, directs ORR to consult with the Bureau of Citizenship and Immigration Services and the Bureau of Border Security to “ensure that unaccompanied alien children are likely to appear for all hearings or proceedings in which they are involved ... [and] are placed in a setting in which they are not likely to pose a danger to themselves or others.”
The TVPRA likewise requires that the Secretary of HHS consult with DHS in developing procedures for determining the age of a child,
Indeed, holding that unaccompanied minors in ORR custody must receive bond hearings does not create a novel process for determining the placement or release of such children. Instead, it affirms the framework established by the Flores Settlement. Like the HSA and TVPRA, the Settlement addresses concerns regarding the welfare and care of unaccompanied minors. Unlike those statutes, the Settlement explicitly provides such children with the right to a bond hearing. Yet it also states that “nothing herein shall require the INS to release a minor to any person or agency whom the INS has reason to believe may harm or neglect the minor or fail to present him or her before the INS
Mirroring the Settlement, the TVPRA prohibits ORR from releasing an unaccompanied minor from custody unless it has “determin[ed] that the proposed custodian is capable of providing for the child‘s physical and mental well-being.”
At the time the Flores Settlement was signed, it was the INS that was charged with ensuring that a child, regardless of a bond determination, was not released to an improper custodian.17 The only meaningful difference is that today it is ORR, not INS, which is responsible for performing that function. See
The government also asserts that Paragraph 24A is no longer applicable to unaccompanied minors in part because bond hearings would provide “minimal—if any—benefit” to such children. Because the TVPRA prevents ORR from releasing an unaccompanied minor from custody unless the agency has identified a suitable custodian, the government argues that any determination by an immigration judge
First, any additional limitations that the HSA and TVPRA might have placed on the effect of an immigration judge‘s bond-hearing determination do not render such hearings “impermissible” under either statute. A provision of a settlement agreement is not terminated simply because intervening laws might alter its functional impact. Second, even if the government were correct that the determination by an immigration judge would have little practical effect, it would not be excused from nonetheless providing bond hearings. The Flores Settlement is the reflection of both parties’ bargained-for positions. The process for detaining and releasing unaccompanied minors may result in a complicated set of determinations, but it is the one the government agreed to when it signed the Settlement in 1997. It is not for the government to now claim that the continued enforcement of Paragraph 24A is not, in fact, in plaintiffs’ interests.
Third, there is good reason to think that bond hearings would provide significant practical benefits to unaccompanied minors as opposed to the current system. ORR‘s review process is governed by a manual that is posted with no notice or binding effect on the agency‘s website.18 That manual does not guarantee the right to present evidence, does not identify any standard of proof or provide any evidentiary burdens, and does not grant children or custodians the right to be represented by counsel. See ORR Guide § 2.7.8. In addition, under the ORR procedure, a detained minor may seek review of a detention decision—rather than relying on his or her parent or legal guardian to do so—only if “the sole
reason for denial of release is concern that the unaccompanied alien child is a danger to himself/herself or the community.” Id.
Bond hearings, by contrast, allow for representation by counsel, see U.S. Department of Justice, Executive Office for Immigration Review, Immigration Court Practice Manual § 9.3(e)(ii) (2016), give the minor the right to make an oral statement, id. at § 9.3(e)(vi), create an evidentiary record,
As we have previously held, “there is no reason why [the] bureaucratic reorganization” enacted by the HSA and TVPRA “should prohibit the government from adhering to the [Flores] Settlement.” Flores v. Lynch, 828 F.3d at 910. Here, we similarly conclude that the authority granted to ORR does not prevent the government from continuing to fully implement Paragraph 24A. The government remains bound by its bargain in the Flores Settlement, regardless of which agency may now be charged with caring for unaccompanied minors. The acronyms have changed, but the effect remains the same: these children have a right under Para-
c. Congressional Intent
In addition to being the most reasonable reading of the plain text of the laws and the governing statutory framework, construing the HSA and TVPRA so as to provide unaccompanied minors with a bond hearing affirms Congress‘s intent in passing both laws. The government argues that the legislative history of the HSA and TVPRA shows that the statutes constitute intentional decisions by Congress to give ORR, not immigration judges, full authority over the custody and detention of unaccompanied minors. The government contends that Congress sought such a result because ORR serves an “exclusively child-welfare related function,” as opposed to that of DHS. It is correct that, in passing the HSA and TVPRA, Congress sought to improve the welfare of unaccompanied minors. Yet, in claiming that the Acts therefore preclude any bond hearing before an immigration judge, the government ignores the broader intent behind the laws.
The overarching purpose of the HSA and TVPRA was quite clearly to give unaccompanied minors more protection, not less. See Cardall, 826 F.3d at 738 (finding that the statutes reflect “Congress‘s unmistakable desire to protect [the] vulnerable group” of unaccompanied minors). The HSA reflected Congress‘s conviction that “[u]naccompanied minors deserve special treatment under our immigration laws and policies.” 148 Cong. Rec. S8180 (daily ed. September 4, 2002). As Senator Edward Kennedy noted, the HSA sought to protect those children who “have been abandoned, are fleeing persecution, or are escaping abusive situations at home.” Id. The Act, Senator Kennedy said, was intended to provide “comprehensive services to address the special needs of
newcomer children ... tailored to address the[ir] cultural, linguistic, legal, and developmental needs.” Id. Nowhere does the legislative history of the HSA suggest that, in providing such services, Congress intended to reduce the rights already granted to unaccompanied minors.
Similarly, in passing the TVPRA, Congress sought to improve the procedures governing the treatment of unaccompanied minors. The House Report for the Act states that it was intended to “require[] better care and custody of unaccompanied alien children to be provided by the Department of Health and Human Services” and to “improve[] procedures for the placement of unaccompanied children in safe and secure settings.” H.R. Rep. 110-430, at 57 (2007). The Act further sought to “assist children in complying with immigration orders” and “in accessing pro bono representation.” Id. As Senator Dianne Feinstein stated during the debate over the passage of the TVPRA, the Act represents an “important step to protecting unaccompanied alien children, the most vulnerable immigrants,” and to fulfilling our nation‘s “special obligation to ensure that these children are treated humanely and fairly.” 154 Cong. Rec. S10886 (daily ed. Dec. 10, 2008). To deprive unaccompanied minors of an opportunity to contest their detention before an immigration judge is hardly consistent with such Congressional intent.
Contrary to the government‘s assertion that Congress sought to establish a novel immigration scheme governing the custody of unaccompanied minors, the HSA and TVPRA in fact affirm the broad goals of the Flores Settlement. Like the Settlement, the HSA and TVPRA emphasize placing children in the least restrictive environment, and require that the government ensure that they receive safe and
Rather, the HSA and TVPRA were intended to address the unique vulnerability of minors who enter this country unaccompanied, and to improve the treatment of such children while in government custody. There is nothing in the legislative history of either statute to suggest that, in doing so, Congress in fact sought to strip unaccompanied minors of any extant protections, including their right to a bond hearing under the Flores Settlement.
****
Nothing in the text, structure, or purpose of the HSA or TVPRA renders continued compliance with Paragraph 24A, as it applies to unaccompanied minors, “impermissible.” See Flores v. Lynch, 828 F.3d at 910. Nor does anything in the two statutes turn the Flores Settlement or any part of it into an “instrument of wrong.” See Wright, 364 U.S. at 647, 81 S.Ct. 368.
Not a single word in either statute indicates that Congress intended to supersede, terminate, or take away any right enjoyed by unaccompanied minors at the time of the acts’ passage. Thus, we hold that the statutes have not terminated the Flores Settlement‘s bond-hearing requirement for unaccompanied minors.
We therefore affirm the decision of the district court granting plaintiffs’ motion to enforce Paragraph 24A of the Flores Settlement in its entirety.
AFFIRMED.
Raul PADILLA-RAMIREZ, Plaintiff-Appellant, v. Daniel A. BIBLE; Jeh Charles Johnson; Jefferson B. Sessions III, Attorney General; Rick Layher, Defendants-Appellees.
No. 16-35385
United States Court of Appeals, Ninth Circuit
July 6, 2017
Argued and Submitted March 13, 2017, San Francisco, California
Notes
- has no lawful immigration status in the United States;
- has not attained 18 years of age; and
- with respect to whom—
- there is no parent or legal guardian in the United States; or
- no parent or legal guardian is available to provide care and physical custody.