Saravia v. Sessions

280 F.Supp.3d 1168

Ilsa SARAVIA, et al., Petitioners/Plaintiffs,

v.Jefferson B. SESSIONS, et al., Respondents/Defendants.

Case No. 17–cv–03615–VC

United States District Court, N.D. California.

Signed November 20, 2017

Ashley K. Corkery, Kathlyn Anne Querubin, Martin S. Schenker, Nathaniel Robert Cooper, Trevor Morehead Kempner, Cooley LLP, San Francisco, CA, Holly Stafford Cooper, University of California, Davis School of Law Immigration Law Clinic, Davis, CA, Judy Rabinovitz, ACLU Foundation Immigrants' Rights Project, New York, NY, Stephen B. Kang, ACLU Immigrants' Rights Project, San Francisco, CA, William S. Freeman, Julia Harumi Mass, Esq., ACLU Foundation of Northern California, San Francisco, CA, for Petitioners/Plaintiffs.

Sarah B. Fabian, Nicole N. Murley, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Vinita Andrapalliyal, U.S. Department of Justice, Washington, DC, Eric May, Office of the County Counsel, Woodland, CA, Melissa Ann Jones, Stoel Rives, LLP, Sacramento, CA, for Respondents/Defendants.

ORDER GRANTING THE MOTION FOR PRELIMINARY INJUNCTION; GRANTING THE MOTION FOR PROVISIONAL CLASS CERTIFICATION; GRANTING IN PART AND DENYING IN PART THE FEDERAL DEFENDANTS' MOTION TO DISMISS; GRANTING IN FULL THE NON–FEDERAL DEFENDANTS' MOTIONS TO DISMISS

Re: Dkt. No. 51, 54, 58, 61

VINCE CHHABRIA, United States District Judge

The federal government sometimes releases noncitizens on bond or parole while their removal proceedings are pending. Release reflects a determination by the government that the noncitizen is not a danger to the community or a flight risk. Once a noncitizen has been released, the law prohibits federal agents from rearresting him merely because he is subject to removal proceedings. Rather, the federal agents must be able to present evidence of materially changed circumstances—namely, evidence that the noncitizen is in fact dangerous or has become a flight risk, or is now subject to a final order of removal. And if the noncitizen disputes the notion that changed circumstances justify his rearrest, he is entitled to a prompt hearing before an immigration judge. These protections against the erroneous deprivation of liberty arose out of a 1981 decision by the Board of Immigration Appeals and are embodied in the current practices of the Department of Homeland Security.

A small group of similarly situated noncitizens, however, has not been receiving comparable protections when rearrested. Specifically, some noncitizens enter the country as unaccompanied minors—that is, children with no parent or guardian available to care for them. Under existing law, the federal government conducts an assessment of the minor, and either keeps him in custody while his removal proceedings are pending or places him with a suitable "sponsor" in the United States. The sponsor is often a family member, and the minor's placement with the sponsor reflects a determination by the federal government that the minor is neither dangerous nor a flight risk (and that such a placement is in the child's best interest).

Recently, federal agents have been arresting noncitizens—including some minors who were previously placed with sponsors—based on allegations of gang involvement. Instead of giving those minors a prompt hearing to dispute that their detention is now justified based on changed circumstances, the government has been transferring them to different parts of the country for placement in high-security facilities for an indefinite period.

The issue in this case is not whether federal agents may arrest and detain undocumented minors who truly are members of dangerous criminal gangs. If federal agents have probable cause to believe that a minor is a member of a criminal gang, certainly that could be a "changed circumstance" that would justify detention, even if the government had previously determined that the minor was not dangerous. But there is no reason to deny these minors protections that noncitizens typically get after having been released on bond or parole. The minors and their sponsors have the right to participate in a prompt hearing before an immigration judge in which the government's evidence of changed circumstances is put to the test. By shipping the minors across the country for indefinite detention in a high-security facility before providing that hearing, the government has violated their due process rights.

Accordingly, for any noncitizen minor previously placed with a sponsor who has been arrested on allegations of gang activity, the government is ordered to provide a hearing before an immigration judge by no later than November 29, 2017, to allow the minor and his sponsor to contest the government's evidence of changed circumstances. The government must restore the minor to the sponsor's custody if such evidence is lacking. Going forward, at least while this lawsuit is pending, the government is ordered to provide such a hearing within seven days of arrest of any such minor.

The plaintiffs have asked for further relief, and they have asserted additional legal theories. Further relief may be warranted, but because the minors are clearly entitled to at least this due process protection, and because their need for that protection is time-sensitive, a preliminary injunction on this issue is warranted at this time.

I.

In the Spring of 2017, agents from Immigration and Customs Enforcement ("ICE"), which is a division of the Department of Homeland Security ("DHS"), executed "Operation Matador" in two New York counties. Operation Matador targeted undocumented immigrants in Suffolk and Nassau Counties who had alleged connections to criminal gangs. After receiving allegations of gang affiliation from local law enforcement officers, ICE agents proceeded to arrest the alleged gang members, relying on ICE's authority under federal law to arrest noncitizens who are subject to removal from the country. See Tr. of Oct. 27, 2017 Hearing at 23–28, Dkt. No. 98.

Some of the people arrested were minors. And ICE decided, after making the arrests, that some of the minors fell within a certain legal category: "unaccompanied" minors. Under federal law, an unaccompanied minor is a child who comes across the border without any parent or legal guardian in the United States available to take care of them. 6 U.S.C. § 279(g)(2). When DHS takes custody of an unaccompanied minor, federal law requires that agency to transfer custody of the minor to the Office of Refugee Resettlement ("ORR"), a division within a different cabinet-level agency, namely, the Department of Health and Human Services ("HHS"). The statutory purpose behind this transfer requirement is to provide special protections for unaccompanied minors, a particularly vulnerable group. In particular, Congress created this framework to address the concern that unaccompanied minors may be victims of human trafficking operations or other criminal activity, concluding that HHS was better equipped to assess and attend to the needs of these minors than DHS. The primary federal statute that confers this and other protections on unaccompanied minors is called the Trafficking Victims Protection Reauthorization Act, or TVPRA. Pub. L. No. 110–457, § 235, 122 Stat. 5044, 5074–82 (2008) (codified at 8 U.S.C. § 1232 ); see also 6 U.S.C. § 279.

When an unaccompanied minor is taken into custody by DHS and then ORR, typically proceedings begin before an immigration judge (under the auspices of the Department of Justice) to decide whether the minor should be removed from the country. The TVPRA requires ORR to decide where to place the minor while the removal proceedings are pending. The statute requires ORR to place the unaccompanied minor "in the least restrictive setting that is in the best interest of the child," considering, among other things, whether the minor is dangerous. 8 U.S.C. § 1232(c)(2)(A). ORR may release the minor to a "sponsor" who already lives in the country but was not with the minor when DHS picked him up—often a parent or relative—so long as the minor is not dangerous and the placement is otherwise suitable. If placement with a sponsor is not appropriate (either because there is no sponsor, or because the proposed sponsor is unsuitable, or because the minor is dangerous), ORR will detain the minor in a facility pending resolution of the removal proceedings. Id. ; see also 6 U.S.C. § 279(b)(2)(B).

The facilities used by ORR have three security levels. The least restrictive level is a shelter facility, the medium level is a staff-secure facility, and the most restrictive level is a secure facility. The secure facility is akin to a local juvenile hall—in fact, ORR uses local juvenile halls to house the most dangerous unaccompanied minors, pursuant to contracts with local governments. See, e.g. , Supp. Decl. of Julia Mass (June 23, 2017), Ex. 2 at 1–3, Dkt. No. 19–3; Decl. of Ashley Corkery ("Corkery Decl."), Ex. B at 77, Dkt. No. 61–3. In addition to local governments, ORR contracts with private entities (typically nonprofits) to take custody of unaccompanied minors. See, e.g. , Corkery Decl., Ex. B at 77; Esquivel Mot. To Dismiss at 4 n.2, Dkt. No. 58.

But under Operation Matador, the minors that ICE arrested and classified as "unaccompanied" minors were not your typical unaccompanied minors. That is, they were not people who just came across the border, with no parent or guardian immediately available to care for them. Rather, these minors had come across the border previously—often years before—as unaccompanied minors, and had already once been placed into the custody of ORR. As required by the TVPRA, ORR conducted an assessment of these unaccompanied minors shortly after they arrived, to determine where they should be placed while the federal government decided whether to remove them from the country. And it appears that for each minor, ORR made the determination that the minors should be placed with sponsors rather than detained....