Ramirez v. U.S. Immigration & Customs Enforcement

338 F.Supp.3d 1

Wilmer Garcia RAMIREZ, et al., Plaintiffs.

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

Civil Action No.: 18-508 (RC)

United States District Court, District of Columbia.

Signed August 30, 2018

Devin Allan DeBacker, Kevin Ross Powell, Paul F. Brinkman, Tia T. Trout Perez, Kirkland & Ellis, LLP, Washington, DC, Jamie R. Netznik, Amanda Jacobowski, Anne K. Reser, Stephen R. Patton, Kirkland & Ellis LLP, Katherine E.M. Goettel, National Immigrant Justice Center, Chicago, IL, for Plaintiffs.

Cara Elizabeth Alsterberg, Christina Parascandola, Colin Abbott Kisor, Theo Nickerson, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

DENYING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT; GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs—three immigrants teenagers who entered the United States as unaccompanied alien children—bring this putative class action against Immigration and Customs Enforcement ("ICE"), the Acting Director of ICE, the Department of Homeland Security ("DHS"), and the Secretary of Homeland Security. They allege that upon reaching their respective eighteenth birthdays, Defendants transferred them to adult detention facilities without considering less restrictive placements in violation of 8 U.S.C. § 1232(c)(2)(B). Plaintiffs also contend that Defendants routinely and systematically fail to abide by this statutory provision.

At an earlier stage of this litigation, this Court granted a motion for preliminary injunction filed on behalf of Plaintiffs Wilmer Garcia Ramirez and Sulma Hernandez Alfaro. See generally Ramirez v. ICE , 310 F.Supp.3d 7 (D.D.C. 2018). Finding that Mr. Garcia Ramirez and Ms. Hernandez Alfaro had shown that they were likely to succeed on the merits of their claim that ICE had not complied with 8 U.S.C. § 1232(c)(2)(B) in placing them, that they would suffer irreparable harm absent injunctive relief, and that both a balancing of the equities and public interest considerations favored Plaintiffs, the Court ordered Defendants to comply with 8 U.S.C. § 1232(c)(2)(B) in placing Mr. Garcia Ramirez and Ms. Hernandez Alfaro. See id. at 25–34. Now before the Court are Defendants' motion to dismiss Plaintiffs' complaint—a filing that largely retreads ground tentatively resolved at the preliminary injunction stage—and Plaintiffs' motion for class certification. For the reasons explained below, the Court denies Defendants' motion to dismiss and grants Plaintiffs' motion for class certification.

II. BACKGROUND

A. Statutory and Regulatory Framework

Most immigration enforcement functions are carried out by DHS, in which ICE is housed. See 6 U.S.C. §§ 111, 251, 291 ; 8 U.S.C. § 1103(a)(1). Congress established a different legal framework, however, for the care and custody of "unaccompanied alien children"—defined as children under age eighteen, who have no lawful immigration status in the United States and no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. § 279(g)(2). Except in exceptional circumstances, unaccompanied minors apprehended by immigration officials are transferred to the custody of the Department of Health and Human Services ("HHS"). See 8 U.S.C. § 1232(b)(3). The Office of Refugee Resettlement ("ORR"), a division of HHS, is thereafter responsible for, among other things, "coordinating and implementing the care and placement" of such children. 6 U.S.C. § 279(a) – (b)(1)(A). Congress has established that these children "shall be promptly placed in the least restrictive setting that is in the best interest of the child" and that "[i]n making such placements, the Secretary [of HHS] may consider danger to self, danger to the community, and risk of flight." 8 U.S.C. § 1232(c)(2)(A).

HHS only has authority over the care and custody of immigrant children, however. See 6 U.S.C. § 279. And, of course, children do not stay children forever. Congress accounted for that fact of life, extending certain protections to newly adult immigrants who were formerly in the care and custody of HHS. Pursuant to 8 U.S.C. § 1232(c)(2)(B) :

If [an unaccompanied alien child in the custody of the Secretary of HHS] reaches 18 years of age and is transferred to the custody of the Secretary of Homeland Security, the Secretary [of DHS] shall consider placement in the least restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight. Such aliens shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the alien's need for supervision, which may include placement of the alien with an individual or an organizational sponsor, or in a supervised group home.

Under this provision, DHS must "tak[e] into account" specified statutory factors and must "consider" placement in the least restrictive setting for those who aged out of HHS's jurisdiction. See id. But, unlike unaccompanied minors, these individuals are not promised placement in the least restrictive setting. Compare 8 U.S.C. § 1232(c)(2)(A), with 8 U.S.C. § 1232(c)(2)(B).

B. Factual Background

Plaintiffs in this case are three immigrant teenagers who were previously held in ORR custody as unaccompanied alien children. See First Am. Compl. ¶¶ 1, 33, 46, 61, ECF No. 21. Upon turning eighteen, they were transferred to the custody of ICE and placed in adult detention facilities, purportedly without receiving statutorily mandated consideration of less restrictive placement options. See id. ¶¶ 1, 4, 13–15. They seek to represent a class defined as:

All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternative to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B).

Pl.'s Mot. for Class Certification & Supp. Points of L. & Auth. ¶ 3 ("Pls.' Mot. for Class Cert."), ECF No. 6. This Court's Opinion at the preliminary injunction stage of this litigation described the circumstances that led Plaintiffs Garcia Ramirez and Hernandez Alfaro to enter the United States as unaccompanied alien children and detailed the events that led up to this lawsuit. See Ramirez , 310 F.Supp.3d at 12–16. For the sake of completeness, the Court recounts that history here. The Court also provides background details about the third named Plaintiff, Ana P., who joined this litigation after the motion for preliminary injunction had been filed and partly briefed. See id. at 12 n.1 (noting that the Court limited its consideration of Plaintiffs' motion for preliminary injunction to Mr. Garcia Ramirez and Ms. Hernandez Alfaro); see also Docket Sheet, Civ. A. No. 18-cv-508-RC.

1. Wilmer Garcia Ramirez

According to Plaintiffs' complaint, Wilmer Garcia Ramirez was born into poverty in Guatemala in 1999. See First Am. Compl. ¶¶ 20–21. At six years old, he began working in his family's fields, cutting underbrush with a machete. Id. ¶ 21. By eight, he was laboring for nine or more hours each day in other people's fields. Id. ¶ 22. From ages nine to sixteen, Mr. Garcia Ramirez worked at coffee plantations in Guatemala and Honduras for months at a time, where he endured difficult working and living conditions. See id. ¶¶ 23–30. In March 2017, when he was seventeen years old, Mr. Garcia Ramirez entered the United States without inspection in search of a better life. See id. ¶ 31. After crossing the border, he was apprehended by U.S. Customs and Border Protection officers. See id. ¶ 33. Upon learning that he was an unaccompanied alien child, DHS officials transferred Mr. Garcia Ramirez to ORR custody. Id. ¶ 33.

While in ORR custody, Mr. Garcia Ramirez petitioned the Superior Court of Arizona to declare him a dependent of the State due to his parent's neglect in Guatemala. Id. ¶ 34. The court granted the petition, finding that it was not in Mr. Garcia Ramirez's best interest to be returned to Guatemala. Id. ¶ 34; Order Regarding Child's Eligibility for Special Immigrant Juvenile Status as to Mother, Ex. C, ECF No. 2-4. Mr. Garcia Ramirez then filed a petition for special immigration juvenile status ("SIJS"), seeking lawful permanent residency in the United States based on the neglect finding. First Am. Compl. ¶ 35; Notice of Action, Ex. B, ECF No. 2-3. That petition remained pending at the time that this lawsuit was filed. See First Am. Compl. ¶ 36.

The day before Mr. Garcia Ramirez turned eighteen years old, his attorney contacted an ICE deportation officer to request that he be released on his own recognizance, citing the facts that removal proceedings against him had been administratively closed, that he had plans to live with a family friend in Pennsylvania, and that he had pending an SIJS petition. See Email from Noriana C. Hermes (Sept. 22, 2017), Ex. D at 7, ECF No. 20-4. The deportation officer denied the request, asserting only that ICE intended to reopen removal proceedings. See Email from Deportation Officer (Sept. 22, 2017), Ex. D at 9, ECF No. 20-4. The next day, on Mr. Garcia Ramirez's eighteenth birthday, he was transferred from ORR custody to ICE custody. See First Am. Compl. ¶ 38.

At an ICE field office in Phoenix, Arizona, officials determined that Mr. Garcia Ramirez should be held without bond. See Decl. of Michael Leal ("Leal Decl.") ¶ 6, Ex. E, ECF No. 20-5. The next day, ICE transferred Mr. Garcia Ramirez to Eloy Detention Center ("EDC"), an adult detention facility in Eloy, Arizona. Id. At EDC, detention officers utilized the Risk Classification Assessment—a database tool that assists DHS officials in assessing whether an alien who is not subject to mandatory detention poses a danger to the community or poses a flight risk—to determine Mr. Garcia Ramirez's custody...