FOR PUBLICATION

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
2 FLORES V. LYNCH

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.

 

 * The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S. 

Court of Appeals for the Eighth Circuit, sitting by designation.

 ** 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. LYNCH 3

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, 
4 FLORES V. LYNCH

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. 
FLORES V. LYNCH 5

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;
6 FLORES V. LYNCH

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, 
FLORES V. LYNCH 7

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 
8 FLORES V. LYNCH

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 
FLORES V. LYNCH 9

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.
10 FLORES V. LYNCH

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). 
FLORES V. LYNCH 11

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).
12 FLORES V. LYNCH

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.

 

 1 Flores also argued that the government breached Paragraph 12(A) by 

exposing children in temporary Border Patrol custody to “harsh, 

substandard” conditions. That issue is not implicated in this appeal.

 2 The case was reassigned to Judge Dolly M. Gee, because the original 

judge, Robert J. Kelleher, had died.
FLORES V. LYNCH 13

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 
14 FLORES V. LYNCH

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) 
FLORES V. LYNCH 15

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.”).
16 FLORES V. LYNCH

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 
FLORES V. LYNCH 17

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 2.3

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 

 

 3 Even if the Complaint only sought to assert the detention and release 

rights of unaccompanied immigrant children, it is far from clear that a 

settlement governing detention and release for all immigration children 

would be invalid. A consent decree may “provide[ ] broader relief than 

the court could have awarded after a trial”; the law only requires that the 

agreement “come within the general scope of the case made by the 

pleadings.” Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 

478 U.S. 501, 525 (1986) (alterations, citations, and quotation marks 

omitted).
18 FLORES V. LYNCH

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.
FLORES V. LYNCH 19

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 
20 FLORES V. LYNCH

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 
FLORES V. LYNCH 21

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

in the context of a motion to enforce that agreement.4

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.

 

 4 In so holding, we express no opinion whether the parents of 

accompanied minors have a right to release, or if so, the nature of that 

right. Nor do we express an opinion whether the alleged no-release 

policy would violate the Settlement. We hold only that the Settlement is 

not the source of any affirmative right to release.
22 FLORES V. LYNCH

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 
FLORES V. LYNCH 23

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.

 

 5 We note that a second motion to enforce is pending in the district 

court.