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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JENNY LISETTE FLORES, et al.,
Plaintiffs-Appellees,
v.
WILLIAM P. BARR, Attorney General;
KEVIN K. MCALEENAN, Acting
Secretary of Homeland Security;
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; U.S.
CUSTOMS AND BORDER PROTECTION,
Defendants-Appellants.

No. 17-56297
D.C. No.
2:85-cv-04544DMG-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 18, 2019
San Francisco, California
Filed August 15, 2019
Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon

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FLORES V. BARR
SUMMARY *

Immigration / Juvenile Detention
The panel dismissed for lack of jurisdiction an appeal
brought by the Department of Homeland Security and its
component agencies of the district court’s June 2017 order
granting in part the motion of a plaintiff class to enforce a
1997 Settlement Agreement with the government which set
a nationwide policy for the detention, release, and treatment
of minors detained in Immigration and Naturalization
Service custody.
In 1997, the United States entered into a settlement with
a class of minors subject to detention by U.S. immigration
authorities. The Settlement Agreement, incorporated into a
consent decree, requires immigration agencies to hold such
minors in their custody “in facilities that are safe and
sanitary.” The Agreement also requires the government to
treat these “minors in its custody with dignity, respect, and
special concern for their particular vulnerability as minors.”
Plaintiffs filed a motion in district court to enforce the
Agreement. The district court found that the government was
violating the Agreement by detaining minors in unsanitary
and unsafe conditions at Border Patrol stations. These
findings were based on evidence that minors in U.S.
Customs and Border Protection custody were held in
conditions that deprived them of sleep and did not provide
adequate access to food, clean water, and basic hygiene
*

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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items. The court also found that the government was
violating the Agreement by failing to consider minors for
release as specified in the Agreement and by detaining
minors in detention facilities not licensed for the care of
minors. The district court ordered “enforced” various
paragraphs of the Agreement and also directed the
government to appoint an internal “Juvenile Coordinator,”
as contemplated by the Agreement, to monitor the
government’s compliance with the Agreement and report to
the court.
The parties agreed that this court has jurisdiction over the
appeal of this post-judgment order only if it modified the
Agreement.
The government argued that the district court’s order did
modify the Agreement by requiring the government to
provide specific hygiene items and adequate sleeping
accommodations not explicitly listed in the text of the
Agreement. The panel held that the district court’s order did
not modify the Agreement, but instead interpreted the
Agreement’s requirement that minors be held in “safe and
sanitary” conditions “consistent with the [government’s]
concern for the particular vulnerability of minors.”
The government also argued that the district court
modified the Agreement by concluding that it requires the
government to consider releasing class members subject to
expedited removal. The government contended that this
interpretation of the Agreement was inconsistent with the
Immigration and Nationality Act and related regulations—
primarily with the expedited removal provisions, which
provide that noncitizens in expedited removal proceedings
“shall be detained for further consideration of the[ir]
application[s] for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii).

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The panel held that, rather than modifying the Agreement,
the district court appropriately interpreted it as consistent
with both the INA and this court’s prior interpretation of the
Agreement.
Regarding the government’s argument that the district
court erred in concluding that the Agreement prohibits the
government from detaining minors in secure, unlicensed
family detention centers, the panel noted that the district
court addressed this issue directly in its earlier July 2015
order, and that although the government appealed that order,
it did not on appeal challenge the district court’s holding on
this issue. The panel concluded that this issue belatedly
raised in this appeal was not properly before the court.
Because the panel concluded that the district court’s
order did not modify the Agreement, it dismissed the appeal.

COUNSEL
Sarah Fabian (argued), Senior Litigation Counsel; William
C. Silvis, Assistant Director, District Court Section; William
C. Peachey, Director, District Court Section; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for DefendantsAppellants.
Peter Anthony Schey (argued) and Carlos R. Holguin,
Center for Human Rights and Constitutional Law, Los
Angeles, California; Elena Garcia, Orrick Herrington &
Sutcliffe LLP, Los Angeles, California; Michael S. Sorgen,
La Raza Centro Legal Inc., San Francisco, California;
Jennifer Kelleher Cloyd, Katherine H. Manning, and
Annette Kirkham, The Law Foundation of Silicon Valley

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Legal Advocates for Children and Youth Public Interest Law
Firm, San Jose, California; for Plaintiff-Appellee.

OPINION
BERZON, Circuit Judge:
In 1997, the United States entered into a settlement with
a class of minors subject to detention by U.S. immigration
authorities (“Plaintiffs”). The settlement agreement,
incorporated into a consent decree, requires immigration
agencies to hold such minors in their custody “in facilities
that are safe and sanitary.” Flores Agreement (“the
Agreement”) at ¶ 12A. The Agreement also requires the
government to treat these “minors in its custody with dignity,
respect, and special concern for their particular vulnerability
as minors.” Id. at ¶ 11.
This appeal began as a motion by the Plaintiffs to enforce
the Agreement. The district court found that the government
was violating the Agreement by detaining minors in
unsanitary and unsafe conditions at Border Patrol stations.
These findings were based on evidence that minors in U.S.
Customs and Border Protection custody were held in
conditions that deprived them of sleep and did not provide
adequate access to food, clean water, and basic hygiene
items. The court also found that the government was
violating the Agreement by failing to consider minors for
release as specified in the Agreement and by detaining
minors in detention facilities not licensed for the care of
minors. The district court ordered “enforced” various
paragraphs of the Agreement and also directed the
government to appoint an internal “Juvenile Coordinator,”
as contemplated by the Agreement, to monitor the

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government’s compliance with the Agreement and report to
the court.
The parties agree that this court has jurisdiction over the
appeal of this post-judgment order only if it modified the
Agreement. The government argues that the district court’s
order did modify the Agreement by requiring the
government to provide specific hygiene items and adequate
sleeping accommodations not explicitly listed in the text of
the Agreement. We disagree. The district court’s order does
not modify the Agreement. Instead, it interprets the
Agreement’s requirement that minors be held in “safe and
sanitary” conditions “consistent with the [government’s]
concern for the particular vulnerability of minors.” See
Agreement at ¶ 12A. The government also argues that the
district court’s order modifies the Agreement in other
respects, but those arguments likewise lack merit. As the
district court’s order did not modify the Agreement we
dismiss the appeal.
I
A
This case stems from a 1985 lawsuit filed on behalf of a
class of minors detained by U.S. immigration authorities.
After considerable litigation, the parties negotiated the
Agreement; it was entered by the district court as a consent
decree in January 1997. The Agreement remains in effect
today. 1 The Agreement “sets out nationwide policy for the
1

The Agreement included a specified termination date, but in 2001
the parties stipulated to extend the Agreement until “45 days following
defendants’ publication of final regulations implementing this
Agreement.” The government has issued proposed regulations but the
regulations have not been made final. See Apprehension, Processing,

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detention, release, and treatment of minors in the custody of
the INS.” Id. at ¶ 9. 2 It requires the government to “place
each detained minor in the least restrictive setting
appropriate to the minor’s age and special needs, provided
that such setting is consistent with its interests to ensure the
minor’s timely appearance before the INS and the
immigration courts and to protect the minor’s well-being and
that of others.” Id. at ¶ 11. The Agreement’s provisions
“create[] a presumption in favor of releasing minors and
require[] placement of those not released in licensed, nonsecure facilities that meet certain standards.” Flores v.
Lynch, 828 F.3d 898, 901 (9th Cir. 2016).
Under paragraph 12A of the Agreement, “[f]ollowing
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.” The Agreement
continues: “Facilities will provide access to toilets and sinks,
drinking water and food as appropriate, medical assistance if
the minor is in need of emergency services, adequate
temperature control and ventilation, adequate supervision to

Care, and Custody of Alien Minors and Unaccompanied Alien Children,
83 Fed. Reg. 45,486 (proposed Sept. 7, 2018) (to be codified at 8 C.F.R.
§§ 212, 236; 45 C.F.R. § 410); see also Apprehension, Processing, Care,
and Custody of Alien Minors, Regulations.gov, https://www.regulations
.gov/docket?D=ICEB-2018-0002 (last visited Aug. 6, 2019).
2

Although the Agreement’s terms refer to “INS,” the Immigration
and Naturalization Service’s obligations under the Agreement now apply
to the Department of Homeland Security and the Department of Health
and Human Services. See Flores v. Sessions, 862 F.3d 863, 870 (9th Cir.
2017).

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protect minors from others, and contact with family
members who were arrested with the minor.”
Within a few days of initial detention—three days if a
suitable detention facility “is located and has space
available” or five days “in all other cases”—the government
ordinarily must choose between two options for placement
of minors. 3 The first, and preferable, option, discussed in
paragraph 14 of the Agreement, is releasing the minor to a
parent, legal guardian, adult relative, or another “capable and
willing” designated adult. Alternatively, under paragraph 19,
the minor may be placed in a facility “licensed by an
appropriate State agency to provide residential, group, or
foster care services for dependent children.” Licensed
facilities must be “non-secure as required under state law.”
Finally, paragraph 28A provides that “[a]n INS Juvenile
Coordinator . . . shall monitor compliance with the terms of
this Agreement and shall maintain an up-to-date record of all
minors who are placed in proceedings and remain in INS
custody for longer than 72 hours.”

3

Paragraph 21 of the Agreement provides a third option—
placement in a secure juvenile detention facility—in limited
circumstances, such as where the minor has been charged with a crime.
Although the Agreement contemplates secure detention for minors that
are “an escape-risk,” the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (“TVPRA”) limits the use of
secure custody, stating that “[a] child shall not be placed in a secure
facility absent a determination that the child poses a danger to self or
others or has been charged with having committed a criminal offense.”
8 U.S.C. § 1232(c)(2)(A); see also Flores v. Sessions, 862 F.3d at 881
n.19.

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B
In May 2016, the plaintiffs filed a motion to enforce the
Agreement. The plaintiffs alleged that despite earlier such
motions and resulting orders enforcing the Agreement, the
government continued to violate it by detaining class
members in unsafe and unsanitary conditions at Border
Patrol stations and by detaining minors in secure, unlicensed
facilities. The plaintiffs requested that the district court
address these violations by appointing an independent
monitor.
In June 2017, after an evidentiary hearing, the district
court granted in part plaintiffs’ motion to enforce. In its order
(“the Order”), the court found that the government was
violating the Agreement’s express requirements to provide
adequate access to appropriate food and water and “adequate
temperature controls at a reasonable and comfortable range.”
The court further found that although the Agreement “makes
no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry
clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall
within the rubric of the Agreement’s language requiring
‘safe and sanitary’ conditions.” Certain Border Patrol
stations, the district court found, were violating paragraph
12A of the Agreement by failing to provide such sanitary
necessities.
The district court also determined that although “the
word ‘sleep’ does not appear in the Agreement, . . . whether
Defendants have set up conditions that allow class members
to sleep in the [Border Patrol] facilities is relevant to the
issue of whether they have acted in a manner that is
consistent with ‘the INS’s concern for the particular
vulnerability of minors’ as well as the Agreement’s ‘safe and
sanitary’ requirement.” Citing evidence that many minors in
Border Patrol custody are forced to sleep on concrete floors,

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with no bedding aside from pieces of thin polyester foil, and
are subjected to cold temperatures, serious overcrowding,
and constant lighting, the district court found that the
government was violating the Agreement at certain Border
Patrol stations by holding children in facilities that deprived
them of adequate sleep.
The court also found that the government was failing to
make and record ongoing efforts aimed at releasing or
placing class members in violation of paragraph 14 of the
Agreement, and was detaining class members in secure,
unlicensed facilities in violation of paragraph 19.
The district court declined, however, to appoint an
independent monitor as the plaintiffs had requested. Instead,
it directed the government to identify an internal “Juvenile
Coordinator” in accordance with paragraph 28A of the
Agreement. The court instructed that the Juvenile
Coordinator, once appointed, “will monitor compliance with
those terms of the Flores Agreement, which this Court has
found must be enforced and shall report directly to the Court
regarding the status of Defendants’ compliance.” 4
II
A
This court has appellate jurisdiction over interlocutory
district court orders “granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or
4
A Special Master has since been appointed. See Order Appointing
Special Master/Independent Monitor, Flores v. Barr, No. 2:85-cv-4544
(Order) (C.D. Cal. Oct. 5, 2018) (ECF No. 494). Neither the appointment
of the Special Master nor the Special Master’s enforcement activities is
the subject of this appeal.

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modify injunctions.” 28 U.S.C. § 1292(a)(1). The parties
agree that the district court’s Order did not grant, continue,
refuse, dissolve, or refuse to dissolve an injunction. The
only possible basis for appellate jurisdiction therefore
depends on whether the Order “modif[ied]” the Agreement.
See Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir.
1987) (appointment of a special master cannot be appealed
under § 1292(a)(1) unless “the interlocutory order
appointing a special master ‘modifies’ the consent decree”);
see also Bogard v. Wright, 159 F.3d 1060, 1064–65 (7th Cir.
1998) (dismissing for lack of jurisdiction an appeal of an
order that enforced but did not modify a consent decree, and
discussing the “appellate remedy” available to each party
under section 1292(a)(1) with respect to orders after a final
judgement).
The text of the district court’s opinion in this case
interpreted the existing Agreement; its operative provisions,
which appear at the end of the Order, granted enforcement
of various provisions of the Agreement. The conclusion of
the Order reads, for example, “Plaintiffs’ motion to enforce
Paragraph 12A of the Agreement on the issue of unsanitary
conditions is GRANTED . . .” The Order’s operative
provisions do not require the government to take any specific
action other than to propose a Juvenile Coordinator for
appointment. 5
The government does not challenge the appointment of
a Juvenile Coordinator, as that appointment is expressly
5
In contrast, the district court’s July 2015 order, over which this
court exercised appellate jurisdiction, see Flores v. Lynch, 828 F.3d
at 905, did direct the government to take specific actions, see id. at 908
(“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 . . . .”).

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provided for in the Agreement. Rather, the government
argues that we have jurisdiction to review other parts of the
district court’s Order because they modified the Flores
Agreement.
Specifically, the government contends that, by
interpreting paragraph 12A in the body of its opinion to
require that Border Patrol stations provide the most basic
human necessities—accommodations that allow for
adequate sleep, essential hygiene items, and adequate, clean
food and water—the district court modified the Agreement’s
requirement that minors be held in “safe and sanitary”
conditions that comport with the “special concern for the
particular vulnerability of minors.” We emphatically
disagree.
The government first suggests that the key phrases in
paragraph 12A—“safe and sanitary” and “special concern
for the particular vulnerability of minors”—add nothing to
the enumerated specific requirements found in the next
sentence of the Agreement (requiring “access to toilets and
sinks, drinking water and food as appropriate,” and so on).
The government’s brief maintains that as the enumerated
conditions said nothing about, for example, allowing the
children in government custody to sleep or to wash
themselves with soap, reading the “safe and sanitary”
requirement to cover those requirements is a modification of
the Agreement rather than an interpretation of it.
That cramped understanding of paragraph 12A is
untenable. Construing the Agreement as requiring only the
particular conditions specifically enumerated renders both
the “safe and sanitary” and the “particular vulnerability of
minors” phrases wholly superfluous. We cannot accept that
the parties to the Agreement included gratuitous standards
that have no practical impact. “Courts interpreting the

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language of contracts ‘should give effect to every provision,’
and ‘an interpretation which renders part of the instrument
to be surplusage should be avoided.’” United States v. 1.377
Acres of Land, 352 F.3d 1259, 1265 (9th Cir. 2003) (quoting
Appalachian Ins. Co. v. McDonnell Douglas Corp., 214 Cal.
App. 3d 1, 12 (Ct. App. 1989)); see also Restatement
(Second) of Contracts § 203 (Am. Law Inst. 1981). We
conclude that paragraph 12A’s provisions that facilities be
“safe and sanitary and . . . consistent with the INS’s concern
for the particular vulnerability of minors” do have
independent force and can be interpreted and enforced
without thereby modifying the Agreement.
The government also argues that the phrase “safe and
sanitary” is so vague that either it cannot be enforced, see
Oral Argument at 33:57–34:09, Flores v. Barr, No. 1756297 (9th Cir. Jun. 18, 2019), https://www.ca9.uscourts.g
ov/media/view_video.php?pk_vid=0000015907, or it leaves
“the specifics of compliance [with paragraph 12A] up to” the
government. Not so.
The district court’s interpretation of the Agreement is
consistent with the ordinary meaning of the language of
paragraph 12A, which does provide a standard sufficiently
clear to be enforced. The court found, among other things,
that minors (1) were “not receiving hot, edible, or a sufficient
number of meals during a given day,” (2) “had no adequate
access to clean drinking water,” (3) experienced “unsanitary
conditions with respect to the holding cells and bathroom
facilities,” (4) lacked “access to clean bedding, and access to
hygiene products (i.e., toothbrushes, soap, towels),” and
(5) endured “sleep deprivation” as a result of “cold
temperatures, overcrowding, lack of proper bedding (i.e.,
blankets, mats), [and] constant lighting.” After so finding,
the district court concluded that these conditions fall short of

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paragraph 12A’s requirement that facilities be “safe and
sanitary,” especially given “the particular vulnerability of
minors.” Those determinations reflect a commonsense
understanding of what the quoted language requires.
Assuring that children eat enough edible food, drink clean
water, are housed in hygienic facilities with sanitary
bathrooms, have soap and toothpaste, and are not sleepdeprived are without doubt essential to the children’s
safety. 6 The district court properly construed the Agreement
as requiring such conditions rather than allowing the
government to decide whether to provide them.
Moreover, contrary to the government’s assertions, the
district court did not incorporate into the Agreement a
particular set of standards, Customs and Border Protection’s
“National Standards on Transport, Escort, Detention, and
Search” (or “TEDS”), with respect to food during detention.
We doubt that the TEDS requirements—that minors “be
offered a snack upon arrival and a meal at least every six
hours thereafter,” have food that is “in edible condition (not
frozen, expired, or spoiled),” and “have regular access to
snacks, milk, and juice,”—extend beyond what paragraph
12A requires. But in any event, in context, the district court
referred to TEDS not to interpret the Agreement as
incorporating the TEDS standards specifically, but to
confirm that the government’s inattention to ensuring that
children were being adequately fed was egregious, as the
government was not even complying with its own standards.

6

We note that, as the district court properly understood, assuring
“safe and sanitary” conditions includes protecting children from
developing short- or long-term illnesses as well as protecting them from
accidental or intentional injury.

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In short, the district court’s explanation of its
enforcement of paragraph 12A regarding the conditions at
Border Patrol stations concerned only requirements
unarguably within the terms of the Agreement. As a result,
the portion of the court’s order enforcing paragraph 12A did
not constitute an “[i]nterlocutory order[] . . . modifying [an]
injunction[], or refusing to . . . modify [an] injunction[].”
28 U.S.C. § 1292(a)(1). We therefore lack jurisdiction over
this claim. 7
B
The government next argues that the district court
modified the Agreement by concluding that it requires the
government to consider releasing class members subject to
expedited removal. The government contends that this
interpretation of the Agreement is inconsistent with the
Immigration and Nationality Act (INA) and related
regulations—primarily with the expedited removal
provisions, which provide that noncitizens in expedited
removal proceedings “shall be detained for further
consideration of the[ir] application[s] for asylum.” 8 U.S.C.
§ 1225(b)(1)(B)(ii).
The Agreement “creates a presumption in favor of
releasing minors.” Flores v. Lynch, 828 F.3d at 901; accord
Flores v. Sessions, 862 F.3d at 866. That presumption is fully
consistent with the Act’s expedited removal provisions.
To begin, not all noncitizens eligible to be placed in
expedited removal proceedings are in fact placed in such
7

As we lack jurisdiction, we do not reach the government’s
evidentiary objections regarding the record considered by the district
court.

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proceedings. The government has discretion to place
noncitizens in standard removal proceedings even if the
expedited removal statute could be applied to them. See
Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 521–22
(B.I.A. 2011). In other words, the government may place
minors into standard, nonexpedited removal proceedings
and thus comply with the Agreement by avoiding any
mandatory detention allegedly required for expedited
removal.
Further, expedited removal does not require mandatory
detention for minors. The INA provides that, even for
noncitizens in expedited removal, “the Attorney General
may . . . in his discretion parole into the United States
temporarily” any noncitizen applying for admission “under
such conditions as he may prescribe.” 8 U.S.C.
§ 1182(d)(5)(A). The government has promulgated two
regulations that pertain to parole into the United States of
noncitizens in expedited removal proceedings. One provides
that such noncitizens “shall be detained pending
determination and removal, except that parole of such alien
. . . may be permitted only when the Attorney General
determines, in the exercise of discretion, that parole is
required to meet a medical emergency or is necessary for a
legitimate law enforcement objective.” 8 C.F.R.
§ 235.3(b)(2)(iii). A second provides that all noncitizens
subject to removal—specifically including, by crossreference, those in expedited removal 8—may be paroled “on
a case-by-case basis for ‘urgent humanitarian reasons’ or
‘significant public benefit,’ provided the [noncitizens]
8

Section 212.5(b) addresses the parole of aliens “who have been or
are detained in accordance with § 235.3(b) or (c) of this chapter.”
8 C.F.R. § 212.5(b). Section 235.3(b) provides for expedited removal.
Id. § 235.3.

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present neither a security risk nor a risk of absconding.” Id.
§ 212.5(b). Among the groups eligible for parole under this
regulation are “[a]liens who are defined as juveniles in
§ 236.3(a) of this chapter,” who may be paroled under “the
guidelines set forth in § 236.3(a) of this chapter and
paragraphs (b)(3)(i) through (iii) of this section.” Id.
§ 212.5(b)(3).
Both regulations expressly cover noncitizens in
expedited removal proceedings; nothing in section 235.3(b)
negates section 212.5(b). The more specific regulatory
provision providing an exception for minors governs, not the
general expedited removal provisions. See Karczewski v.
DCH Mission Valley LLC, 862 F.3d 1006, 1015–16 (9th Cir.
2017) (applying the interpretive canon that “the specific
governs over the general” to regulations).
The upshot is that the government’s own regulations
contemplate that minors in expedited removal proceedings
may be considered for release, just as the Agreement
requires. Rather than modifying the Agreement, the district
court appropriately interpreted it as consistent with both the
INA and our prior interpretation of the Agreement. We
therefore lack jurisdiction over this claim. 9

9

For the first time on appeal, the government contends that the
district court’s conclusion that the government must consider whether to
release minors to potential custodians other than a parent or legal
guardian conflicts with a provision of the TVPRA, 8 U.S.C.
§ 1232(b)(3). We decline to address this statutory defense in this appeal,
as the government did not raise it before the district court. See Cold
Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004).

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C

Finally, the government argues that the district court
erred in concluding that the Agreement prohibits the
government from detaining minors in secure, unlicensed
family detention centers. The district court addressed this
issue directly in its July 2015 order. Although the
government appealed that order, it did not on appeal
challenge the district court’s holding on this issue. See
Flores v. Lynch, 828 F.3d at 901. “[A] party cannot offer up
successively different legal or factual theories that could
have been presented in a prior request for review.” Sec. Inv’r
Prot. Corp. v. Vigman, 74 F.3d 932, 937 (9th Cir. 1996). The
issue belatedly raised in this appeal is not properly before us.
III
We dismiss the appeal for lack of jurisdiction.
DISMISSED.