The Federal Government has been litigating with Jenny Lisette Flores since 1985.
I found this out when, due to recent developments, I heard that the Federal Government was asking a Federal Judge to overturn parts or all of something called "the Flores Settlement Agreement." I did not know what the Flores Settlement Agreement, or the Flores case, were all about.
So I looked them up.
I found out that the Federal Government has been litigating with Jenny Lisette Flores for 33 years now. The litigation began when Ms. Flores sued the Federal Government over the conditions in which the Federal Government detained minor immigrant children. Her lawsuit was certified as a class action. The class was all immigrant minors.
In 1997, the parties momentarily got tired of litigating with each other and settled. The parties agreed on two things in their 1997 agreement that are relevant to the present article.
First, the parties agreed that Immigration and Customs Enforcement (ICE) would release a minor from custody without unnecessary delay, in basic terms. Press reports have mentioned 20 days as the maximum to keep such minors confined, so perhaps there have been later Agreements or rulings that I have not found as yet. But the Flores Settlement Agreement itself speaks instead in terms of releasing these minors from custody without unnecessary delay.
Second, the Federal Government would place every minor that it did not release, in a licensed program suitable for placing minors.
Nearly 20 years later, the Federal Government erupted in the Flores litigation once again. The Feds challenged the continuing validity of the two agreements that have just been summarized, first, that minors would be released without unnecessary delay, and second, that whenever the Feds did not release minors then the minors would be placed in licensed programs.
The Feds lost on both of those counts, as they say. But those were not the only things that the Feds tried to get out of when it comes to the Flores case. In this first time that the Federal Government asked a Federal Judge to let it out of the Flores Settlement Agreement, the Feds litigated long and hard. They won some and they lost some, but they fought tooth and nail for every inch of ground. See the history of this case reported by Federal Judges up until that point, in Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015), aff'd in part, rev'd in part sub nom. Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
The Federal Government tried a second time last year, in 2017. Then, the Feds renewed an argument that the law had changed and therefore its Agreement was no longer binding on the Federal Government. They lost, again. In particular, they lost on their argument, again, that ICE could still confine minors in what ICE called "secure, unlicensed facilities."
You can read the story of the second attempt to overturn this particular agreement of the Federal Government, at Flores v. Jefferson B. Sessions, John Kelly, U.S. Department of Homeland Security, and ICE, et al., 862 F.3d 863 (9th Cir. 2017).
Now, apparently, the Feds hope that the third time is the charm. Yesterday they filed what they call an "ex parte motion" to set aside portions of the Flores Settlement Agreement. Again.
Their "ex parte motion," as any lawyer knows, cuts off any opposition if the Judge treats it as a true ex parte motion. The Federal Government really does not want to lose this one.
And the Feds attack two provisions in particular. You can probably guess which two.
That's right. The Federal Government claims -- again -- the rights to (1) confine minors indefinitely and (2) place minors in unlicensed places.
Oh, and if the Feds lose, they will separate minors from their moms and dads. Again. They say they have no other choice. Download Flores v. Sessions Doc. No. 435.1 (Feds) Memorandum in Support of Ex Parte Motion for Relief From Flores Settlement Agreement Filed June 21 2018 (C.D. Cal. Case No. CV 85.4544 DMG (AGRx)).
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