FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         OCT 4 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JENNY LISETTE FLORES,                           No.    20-55951

                Plaintiff-Appellee,             D.C. No.
                                                2:85-cv-04544-DMG-AGR
 v.                                             Central District of California,
                                                Los Angeles
WILLIAM P. BARR, Attorney General;
CHAD F. WOLF; U.S. DEPARTMENT OF                ORDER
HOMELAND SECURITY; U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT; U.S. CUSTOMS AND
BORDER PROTECTION,

                Defendants-Appellants.

Before: W. FLETCHER, BERZON, and M. SMITH, Circuit Judges.

      The district court issued two orders precluding the Department of Homeland

Security (“DHS”) from detaining certain minors in hotels for more than a few days

in the process of expelling them from the United States. Addressing the

government’s emergency motion for a stay, we conclude that the government is

unlikely to succeed on the merits of its appeal, as we likely do not have jurisdiction

over the appeal. The government also has not established that it would be

irreparably harmed if it were obliged to comply with the district court’s orders

while the appeal is pending. We therefore deny the government’s motion for a stay.



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                                           I.

      In 1997, the United States entered into a settlement agreement (“the Flores

Agreement” or “the Agreement”) with a class of minors subject to detention by

U.S. immigration authorities (“Plaintiffs”). See Flores v. Barr (“Flores II”), 

, 912 (9th Cir. 2019). The Agreement was entered by the district court as a

consent decree and remains in effect today.1 Among other things, the Agreement

provides that after the government apprehends minors, it ordinarily must transfer

them to a “licensed program” within three days. Agreement ¶ 12.A. A “licensed

program” refers to a “program, agency or organization that is licensed by an

appropriate State agency to provide residential, group, or foster care services for

dependent children.”

      In March 2020, the Centers for Disease Control (“CDC”) issued an order

temporarily suspending the “introduction . . . into the United States . . . [of] persons

traveling from Canada or Mexico . . . who would otherwise be introduced into a

congregate setting in a land Port of Entry (POE) or Border Patrol station at or near

the United States borders with Canada and Mexico,” subject to certain exceptions.

85 Fed. Reg. 17,060, 17,061 (Mar. 26, 2020). The order was issued under Title 42



1
  In September 2019, the district court denied the government’s motion to
terminate the Agreement. Flores v. Barr, 

(C.D. Cal. 2019).
The government’s appeal of that order is pending in this Court. Flores v. Barr, No.
19-56326 (9th Cir.).

                                           2
of the U.S. Code, which authorizes the Surgeon General to “prohibit . . . the

introduction of persons and property” to protect against a “serious danger of the

introduction of [any communicable] disease into the United States.” 42 U.S.C. §

265. The stated purpose of the order was to “protect the public health from an

increase in the serious danger of the introduction of Coronavirus Disease 2019

(COVID-19) into the land POEs, and the Border Patrol stations between POEs, at

or near the United States borders with Canada and Mexico.” 85 Fed. Reg. at

17,061.

      The CDC order called for “the movement of all . . . aliens [covered by the

order] to the country from which they entered the United States, or their country of

origin . . . as rapidly as possible, with as little time spent in congregate settings as

practicable under the circumstances.”

The order requested that “DHS

implement this order because CDC does not have the capability, resources, or

personnel needed to do so.”

extended in April and May 2020 and

now applies indefinitely. See 85 Fed. Reg. 22,424 (Apr. 22, 2020); 85 Fed. Reg.

31,503 (May 26, 2020).

      In July 2020, the independent monitor appointed by the district court to

monitor the implementation of the Flores Agreement reported to the district court

that DHS was using hotels to house unaccompanied minors, as well as minors

apprehended with a family member (“accompanied minors”), pending their


                                            3
expulsion under Title 42, “routinely for multiple days.” See Flores v. Barr, No.

CV-85-4544, 

, at *2 (C.D. Cal. Sept. 4, 2020) (“Sept. 4 Order”).

In August 2020, the independent monitor reported that DHS had used twenty-five

hotels across three states, both in border cities (El Paso and McAllen, Texas) and

interior cities (Phoenix and Houston), to house 660 minors between the ages of ten

and seventeen, 577 of whom were unaccompanied.

were

housed in hotels for “just under five days,” but 25 percent had been held for more

than ten days, with a maximum stay of twenty-eight days.

motion to enforce the Flores Agreement, arguing, among

other things, that the hoteling program violated the Agreement’s requirement that

DHS ordinarily transfer minors to a licensed program if it holds them for longer

than three days. Plaintiffs also asserted that minors held in hotels were being

denied access to counsel in violation of the Agreement.

      The district court granted Plaintiffs’ motion. As relief, the court declared that

the Agreement applied to minors detained under the authority of Title 42 and

required the government to “comply with the Agreement with respect to such

minors to the same degree as any other minors held in their custody.”

Implementing that declaration, the court directed DHS to stop placing minors in

hotels by September 15, 2020.

that “exceptions may be

made for one to two-night stays while in transit or prior to flights.”

                                           4
of “other exigent circumstances . . . necessitat[ing] future hotel placements,” the

district court directed that the government “shall immediately alert Plaintiffs and

the Independent Monitor, providing good cause for why such unlicensed

placements are necessary.”

of the Agreement, the district

court required DHS to transfer all minors currently held in hotels to licensed

facilities “as expeditiously as possible.”

directed the

government to permit Plaintiffs’ counsel to visit any facility where minors were

being held under Title 42 and to meet with any minor being so held, under

paragraphs 32 and 33 of the Agreement.

      The government appealed the district court’s order and filed an emergency

motion in this Court seeking a stay pending appeal. The government’s motion

relied on evidence not presented to the district court. We denied the government’s

motion without prejudice, and granted a temporary administrative stay to allow the

government first to seek a stay in the district court. Order, Flores v. Barr, No. 20-

55951 (9th Cir. Sept. 16, 2020).

      The district court denied the government’s motion for a stay and modified its

original order. The modified order required DHS to stop placing minors at hotels

by September 28, 2020, with the exception that “DHS may implement brief hotel

stays (not more than 72 hours) as necessary and in good faith to alleviate

bottlenecks in the intake processes at licensed facilities.” Flores v. Barr, No. CV-


                                           5
85-4544, 

, at *4 (C.D. Cal. Sept. 21, 2020) (“Sept. 21 Order”).

Returning to this Court, the government renewed its emergency motion for a stay

pending appeal, and we granted a further temporary administrative stay through

October 5, 2020.

                                           II.

      “A party requesting a stay pending appeal ‘bears the burden of showing that

the circumstances justify an exercise of [judicial] discretion.’” Doe #1 v. Trump,

, 1058 (9th Cir. 2020) (quoting Nken v. Holder, 

, 433–

34 (2009)). In considering whether to exercise our discretion to grant the

government’s motion for a stay, “we apply the familiar standard set forth by the

Supreme Court in Nken, namely: (1) whether the Government has made a strong

showing of the likelihood of success on the merits; (2) whether the [government]

will be irreparably injured absent a stay; (3) whether a stay will substantially injure

other parties; and (4) where the public interest lies.”

factors . . .

are the most critical.’”

U.S. at 434). “We consider the last

two factors if the first two factors are satisfied.” Id.; see All. for the Wild Rockies v.

Cottrell, 

, 1134–35 (9th Cir. 2011) (explaining, in the analogous

context of a preliminary injunction, that relief “is appropriate when a plaintiff

demonstrates . . . that serious questions going to the merits were raised and the

balance of hardships tips sharply in the plaintiff’s favor” (internal quotation marks


                                            6
omitted)).

                                           A.

      The first Nken factor, whether the government has made a strong showing

that it is likely to succeed on the merits of its appeal, obliges us to consider

whether we are likely to have jurisdiction over the appeal. “This court has

appellate jurisdiction over interlocutory district court orders ‘granting, continuing,

modifying, refusing or dissolving injunctions, or refusing to dissolve or modify

injunctions.’” Flores 

(quoting 28 U.S.C. § 1292(a)(1)). We

must determine whether, as the government contends, the district court’s orders

have functionally modified the Flores Agreement or whether, on the other hand,

they simply enforce the existing consent decree.2 See

requires us to review the parties’ arguments on the merits issues of whether the

Agreement applies to minors detained under Title 42 and whether the district

court’s orders require the government to take actions beyond those required by the

Agreement. Cf. Augustine v. United States, 

, 1077 (9th Cir. 1983)

(holding that a court may address jurisdictional and substantive issues concurrently


2
  We reject the government’s argument that we have jurisdiction under 28 U.S.C. §
1291 because the district court’s “order enjoins activity taken under independent
statutory authority, addressing public health rather than immigration, by the CDC
Director who has nothing to do with the government’s immigration operations and
is not a party to the Agreement.” The district court’s orders do not state that the
CDC Director is covered by the Agreement and do not require the CDC to do
anything.

                                           7
if they are “intertwined”).

      By its terms, the Agreement applies to “[a]ll minors who are detained in the

legal custody of the INS.” Agreement ¶ 10. The former “Immigration and

Naturalization Service’s obligations under the Agreement now apply to [DHS] and

the Department of Health and Human Services” (“HHS”). Flores 

n.2. Additionally, the Agreement applies to both unaccompanied and

accompanied minors. Flores v. Lynch (“Flores I”), 

, 905 (9th Cir.

2016).

      The government maintains that minors held under Title 42 “are in the legal

custody of the CDC” because “the source of legal authority for custody” is the

CDC order, not the immigration statutes. But there is no evidence that the term

“custody,” as used in the Flores Agreement, refers to the source of legal authority

for custody, as opposed to the entity actually exercising legal custody. The

Agreement does not define “custody,” so we look to the common meaning of the

term, particularly in the legal context. See Doe 1 v. AOL LLC, 

, 1081

(9th Cir. 2009). The term’s ordinary meaning in family law is the right to make

important decisions affecting the child. See Custody, Black’s Law Dictionary (11th

ed. 2019) (defining “legal custody” in the family law context as “[t]he authority to

make significant decisions on a child’s behalf”); Cal. Fam. Code § 3003 (defining

“legal custody” as “the right and the responsibility to make the decisions relating to


                                          8
the health, education, and welfare of a child”); Agreement ¶¶ 12.A, 14, 15, 16, 19.

DHS itself, in its recently promulgated regulations assertedly implementing the

Flores Agreement, defines “custody” as “within the physical and legal control of

an institution or person.” 8 C.F.R. § 236.3(b)(4). That definition accords with the

usual family law understanding of “legal custody.” Like California

Family Code § 3003, 8 C.F.R. § 236.3(b)(4) defines “custody” based on an

institution or person’s ability to physically and legally control the child.

DHS’s current position, focusing on the source of the legal authority for assigning

custody and not on the assigned custody itself, is inconsistent with all of these

definitions.

      Here, it is clear that DHS both maintains physical control and exercises

decision-making authority over the minors held in hotels under Title 42. DHS

apprehends the minors; DHS decides, apparently unilaterally and with no

explanation or articulated standards, whether to expel them under Title 42 or to

detain them under the immigration statutes; DHS decides where and for how long

to hold them (the CDC order says nothing whatever about detention in hotels); and

DHS provides for their physical needs, including medical care. See Sept. 4 Order,

, at *4–5. Thus, the district court likely did not modify the

Agreement in concluding that minors held under Title 42 are in DHS’s custody for

purposes of the Agreement and by so applying the Agreement to those minors.


                                           9
      The government asserted at oral argument that this Court has jurisdiction

over the appeal because the district court’s orders require the government to take

“specific actions,” not simply to comply with the Agreement. Flores II held that

we did not have jurisdiction to review the district court’s order enforcing the

Agreement at issue in that case. There, we distinguished Flores I, in which we

exercised appellate jurisdiction over the district court’s order requiring the

government to take “specific actions,” such as releasing a minor’s accompanying

parent. Flores 

n.5. In Flores I, however, the district court’s

order required the government to take actions that the Agreement did not require

(i.e., releasing adults along with their children). See Flores 

. The

order thus modified the Agreement, and provided a basis for concluding, as the

opinion did without explanation, that there was jurisdiction under 28 U.S.C.

§ 1292(a).

      Here, in contrast, as in Flores II, the district court just directed compliance

with the Agreement, specifying in its September 4 order the paragraph of the

Agreement being implemented by each directive: DHS must ordinarily transfer

minors held for longer than three days to a licensed facility, as required by

paragraph 12.A of the Agreement, see Sept. 4 Order, 

, at *10;

Sept. 21 Order, 

, at *4; DHS must allow plaintiffs’ counsel to

visit facilities where minors are held and to meet with minors, as required by


                                          10
paragraphs 32 and 33 of the Agreement, see Sept. 4 Order, 

, at

*11; the government’s Juvenile Coordinators must maintain records on minors and

monitor compliance with the Agreement, as required by paragraphs 28A and 29 of

the Agreement, see id.; and the independent monitor and special expert may

conduct investigations under the authority already granted by the district court’s

October 5, 2018 order, see

the orders assure compliance with

the Agreement by a date certain, but they add no substantive requirement. Each of

the actions ordered by the district court likely effectuates, rather than modifies, the

Agreement.

       The government points out that paragraph 12.A of the Agreement provides

an exception from the three-day transfer rule “in the event of an emergency.”

Agreement ¶ 12.A(3). The Agreement defines an “emergency” as “any act or event

that prevents the placement of minors . . . within the time frame provided,”

including “medical emergencies (e.g., a chicken pox epidemic among a group of

minors).”

In the event of an emergency, DHS is required to place

minors in a licensed program “as expeditiously as possible.”

The

government contends that the emergency exception applies here, making the

district court’s “application of a strict three-day transfer rule . . . incorrect.”

       The district court’s orders in fact are not strict. The original order provides

the government with flexibility to address “exigent circumstances that necessitate


                                            11
future hotel placements.” Sept. 4 Order, 

, at *10. And the

amended order permits three-day hotel stays for the express purpose of allowing

the government to “alleviate bottlenecks in the intake processes at licensed

facilities.” Sept. 21 Order, 

, at *4. Nothing in the present record

establishes that the COVID-19 pandemic prevents the government from placing

minors in licensed programs within three days. As addressed further below, the

capacity of the government’s shelters for unaccompanied minors—10,000 vacant

beds as of August 22, 2020—appears more than adequate to accommodate the

number of unaccompanied minors who need licensed placements, taking COVID-

19 safety protocols into account. See Sept. 4 Order, 

, at *8.

      The government has not shown that the district court’s orders require it to

take actions not required by the Agreement. We therefore conclude that we likely

do not have jurisdiction over the appeal, and that for that reason, the government

has not shown a strong likelihood of success on the merits.

                                         B.

       Even where there has not been a showing of a strong likelihood of success

on the merits, relief may be appropriate if the party seeking it demonstrates that

“serious questions going to the merits were raised and the balance of hardships tips

sharply in the [party’s] favor.” All. for the Wild 

–35.

Although we doubt that the government has satisfied even the “serious questions”


                                         12
standard here, we nonetheless consider whether the government has shown that it

will be irreparably injured absent a stay. It has not.

      The government asserts that complying with the district court’s orders while

this appeal is pending would cause irreparable harm by “increas[ing] the risk of

COVID-19 exposure in U.S. Border Patrol facilities, [Immigration and Customs

Enforcement (‘ICE’)] family residential centers, and [Office of Refugee

Resettlement (‘ORR’)] shelters.” The government submitted a declaration from a

Border Patrol official “anticipat[ing] that [the Border Patrol] may need to refer

approximately 60-140 additional single minors to [licensed programs under the

authority of ORR] per week” as a result of the district court’s September 4 order.

The declaration does not provide a basis for the 60 to 140 estimate and, like all of

the government’s declarations, it predates the district court’s September 21 order,

which modified the original order to allow the government to hold minors in hotels

for up to three days.

      The independent monitor’s August 2020 report indicated that 25 percent of

minors housed in hotels from March 24, 2020, to July 31, 2020, were held for three

days or less. The independent monitor also reported that a total of 577

unaccompanied minors were held in hotels during that time period. If 75 percent of

those minors had been referred to ORR, an average of 24 minors would have been

referred each week. Even assuming, as the government’s declarations suggest, that


                                           13
apprehensions have increased, the government does not explain how it has

determined that 60 to 140 unaccompanied minors are likely to be referred to ORR

each week instead of being held in hotels. That estimate is even more inexplicable

given the assertion of another government declarant that, as of September 17,

2020, “no minors are being held in hotels as part of the Title 42 program.”

      The government also submitted a declaration from an ORR official stating

that “ORR is already receiving approximately 105 referrals a week,” and, in light

of the agency’s need to implement COVID-19 safety protocols, the ORR system

“is already at its functional intake capacity.” But the government has not

established that the additional referrals would actually overwhelm the ORR

system. The same ORR official determined in March 2020, when the system was

operating at 30 percent capacity overall, that the population of minors was

sufficiently low to allow ORR to implement COVID-19 safety protocols

effectively. She now urges us not to rely on that determination and points out that

the population was “practically static” at that time, so the system’s intake capacity

was not burdened. Since March, however, the population of minors in ORR care

has dropped tenfold; as of August 24, 2020, the system was operating at 3 percent

capacity, with 10,000 vacant beds. See Sept. 4 Order, 

, at *8.

The government has not satisfactorily explained why ORR’s largely empty shelters

are not capable of absorbing even as many as 140 additional minors a week for


                                         14
short-term stays before those minors are expelled under Title 42.

      Nor has the government offered testimony from any public health official

explaining why holding minors in hotels, which are open to the public, presents

less risk of COVID-19 exposure and spread, both to the minors and to the public,

than holding them in licensed facilities. Finally, if any of the problems prophesied

by the government show signs of materializing, the district court’s orders give the

government the option of “alert[ing] Plaintiffs and the Independent Monitor” that

“exigent circumstances . . . necessitate . . . hotel placements” and “providing good

cause for why such unlicensed placements are necessary.” Sept. 4 Order, 

, at *10.

      The government has not established that irreparable harm will result if the

district court’s orders take effect while this appeal is pending.

                                          III.

      Having concluded that the government is unlikely to succeed on the merits

of its appeal and that it has not established a likelihood of irreparable injury, we

deny the motion for a stay pending appeal without reaching the last two Nken

factors. Doe 

.

      Because the issues on appeal are well developed in the parties’ briefing of

the government’s emergency motion and the present panel will decide the merits of

this appeal, the parties are not required to file further briefs in this case. Any party


                                           15
wishing to file a nonrepetitive brief addressing points not already discussed in the

stay briefing may do so on the schedule previously established.

      The emergency motion for a stay pending appeal is DENIED.




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