Yes and No. The court said yes, the agreement protects all kids, even if they are with their parents. But it said no, the agreement does not force the government to release the parents. The court explained that the agreement's own words are very clear: it applies to 'any person under 18' in custody. It also has special extra rules just for kids who are 'unaccompanied,' which proves the main rules must be for everyone. However, the court found nothing in the agreement that gives parents their own right to be released. Just because the agreement says it's best to release a kid *to* their parent doesn't mean the government has to release a parent who is also in custody.

The Ninth Circuit agreed in part and disagreed in part with the lower court. The appeals court said the plain language of the Settlement clearly applies to all immigrant kids, whether they arrive with parents or alone. But it said the Settlement doesn't give parents a right to be released. The Settlement creates a strong preference for releasing kids and putting them in safe, licensed facilities, but it doesn't automatically require releasing parents too. The appeals court said the lower court was wrong to interpret the Settlement as requiring the release of parents just because it prefers releasing kids to parents over other adults. Just because the Settlement prefers parents doesn't mean the government has to release a parent with their child. The appeals court also said the government failed to show that circumstances had changed enough to require changing the Settlement to not apply to kids who come with parents.

The Flores Settlement Agreement, entered into in 1997, applies to both accompanied and unaccompanied minors.

The Agreement's provisions "create [] a presumption in favor of releasing minors and require [] placement of those not released in licensed, non-secure facilities that meet certain standards."

In particular, the Ninth Circuit concluded that while "the Settlement unambiguously applies both to accompanied and unaccompanied minors," it "does not create affirmative release rights for parents."

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

The government is also bound by a consent decree in the Flores class action litigation in the Central District of California (the "Flores Agreement").[11]

Flores I held that the plain language of the Agreement covers accompanied minors but that the Agreement does not require the government to release parents.

The Ninth Circuit Court of Appeals agreed with the lower court that the Flores Agreement applies equally to accompanied migrant children

Defendants also fail to carry their burden to show that continued application of the Agreement is neither equitable nor in the public interest due to "a significant change in circumstances."

It requires that "[w] ithin five days of arrest," the Government "must transfer the minor to a non-secure, licensed facility [.]"

The Flores Agreement states that when CBP, ICE, or any other INS successor organization determines "that the detention of the minor is not required either to secure his or her timely appearance before [that organization] or the immigration court, or to ensure the minor's safety or that of others,[the organization] shall release a minor from [its] custody without unnecessary …

Yes, in part, and No, in part. The 1997 Flores Settlement Agreement unambiguously applies to all minors in immigration custody, including those who are accompanied by a parent. However, the Settlement does not create an affirmative right to release for the accompanying parents. The court's reasoning for the first part is based on the plain language of the agreement, which defines 'minor' as 'any person under the age of eighteen (18) years who is detained in the legal custody of the INS' without distinguishing between accompanied and unaccompanied status. The agreement also contains specific provisions that apply only to 'unaccompanied minors,' which would be superfluous if the entire agreement were limited to that group. For the second part, the court reasoned that the Settlement contains no provision explicitly granting release rights to adults. The preference for releasing a child to a parent does not mean the government must make a parent available for release; it simply establishes a hierarchy of custodians if release is deemed appropriate. The district court erred by creating new substantive rights for parents, who were not parties to the original litigation, such as shifting the burden of proof for flight risk determinations.

The Ninth Circuit affirmed in part and reversed in part the district court's order. The court held that the plain language of the Settlement unambiguously applies to accompanied and unaccompanied minors, but does not create affirmative release rights for adults. The Settlement creates a presumption in favor of releasing minors and requires their placement in licensed, non-secure facilities, but does not compel release of accompanying parents. The court found that the district court erred in interpreting the Settlement to require release of parents based on the Agreement's preference for release to a parent. While the Settlement favors release to a parent over others, it does not mandate that a parent must be made available for release. The court affirmed the district court's denial of the government's motion to modify the Settlement, finding no significant change in circumstances or law that would render the Agreement's application to accompanied minors impermissible or inequitable.

Jenny Lisette Flores v. Loretta E. Lynch, et al.

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