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Santos v. Smith

United States District Court, W.D. Virginia, Harrisonburg Division

June 1, 2017

DILCIA SANTOS, as next friend of O.G.L.S., a minor; and DILCIA SANTOS, in her individual capacity, Petitioners,
TIMOTHY J. SMITH, Executive Director, Shenandoah Valley Juvenile Center,, Respondents.


          Elizabeth K. Dillon United States District Judge

         This case involves a petition for writ of habeas corpus brought under 28 U.S.C. § 2241. The petitioners are seventeen-year-old O.G.L.S. and his mother, Dilcia Santos. O.G.L.S., who is a citizen of Honduras, is currently in the care and custody of the Office of Refugee Resettlement, a division of the United States Department of Health and Human Services. He entered the United States without inspection on or around December 15, 2014, and was found by U.S. Border Patrol agents at the border in Brownsville, Texas. (Petition ¶¶ 13, 14, Dkt. No. 1; Mem. Supp. Pet. (Mem.) Ex. E, Dkt. No. 7.) At that time, he was determined to be an unaccompanied alien child (UAC), a determination that petitioners do not challenge. Consistent with the statutory scheme designed to house and process UACs, O.G.L.S. was transferred to the custody of ORR several days later and has been in ORR's care and custody since.

         Within days of her son's arrival in the United States, Ms. Santos, who has lived in the United States for more than a decade, filed a petition with ORR, asking to be reunified with her son. ORR denied her petition and all of her subsequent requests for reconsideration. O.G.L.S. is currently being housed at the Shenandoah Valley Juvenile Center (SVJC), which is a secure facility in Staunton, Virginia, within this judicial district. Ms. Santos and O.G.L.S. allege that their procedural and substantive due process rights have been violated by respondents, and they seek O.G.L.S.'s immediate release from SVJC and ORR custody to the care of his mother. As discussed herein, based on a number of different factors, the court concludes that O.G.L.S.'s procedural due process rights have been violated, and so the court orders his immediate release to his mother.

         I. BACKGROUND

         A. Factual Background[1]

         O.G.L.S. lived with his mother in Honduras until he was about five years old. He and his mother were both physically abused by his father while he was a young child. When O.G.L.S. was five, his mother fled Honduras and came to the United States, leaving him with relatives. In an affidavit, she testified that she left him in Honduras because she was “afraid the trip to the U.S. would be too difficult and dangerous for him at a young age” and because she knew that “some people don't survive.” (Reply Ex. C, ¶ 16, Dkt. No. 25.) She now lives in Kentucky, is married, and takes care of O.G.L.S.'s three half-siblings, all of whom were born in the United States.

         As respondents' counsel acknowledged at the hearing, anyone with knowledge of O.G.L.S.'s background would agree that he “has not had a very good chance at life yet.” Indeed, he has experienced significant trauma in his short life. After his mother left Honduras, O.G.L.S. endured severe physical abuse and neglect at the hands of some of his relatives. By the time he was twelve years old, he was living occasionally with those relatives, but mostly on the streets or staying with friends, and he was often dependent on gangs for both protection and daily necessities. After a gang member befriended him and encouraged him to join the gang, that gang exerted significant coercion to get O.G.L.S. to join and stay in the gang, including physical violence against him and severe physical violence perpetrated against others in his presence. He has admitted to both using illegal drugs and selling drugs as part of his gang activity. Also, while in ORR custody, he described to his caseworker his involvement in other significant and serious criminal activity as part of that gang, although months later he recanted those statements. He has steadfastly maintained since then that he did not engage in the most serious of that conduct. Since coming to the United States, he has repeatedly and consistently told people that he wanted to leave the gang and flee Honduras, but that he was afraid to do so.

         During the time he was in Honduras, he had regular (at least weekly) telephone contact with his mother. His mother also sent money for his support. (Reply Ex. C, Santos Aff. ¶ 17.) According to O.G.L.S., once his mother learned of the abuse he was suffering, she pleaded with her relatives to use other, non-physical means of discipline, but because she was not physically present, her pleas apparently had no effect. (Reply Ex. E, O.G.L.S. Aff. ¶ 10; see also Mem. Ex. N at 3 (home study evaluator reporting Ms. Santos's comments to the same effect).)[2]

         When he was 14 years old, O.G.L.S. fled Honduras and entered the United States, planning to join his mother in Kentucky. He entered without inspection and was apprehended almost immediately. Because he entered the United States alone, he was considered a UAC, a minor with no lawful immigration status whose parents are unavailable “to provide care and physical custody.” 6 U.S.C. § 279(g)(2)(C)(ii). UACs are required to be transferred within 72 hours to the care of ORR, and O.G.L.S. was transferred to ORR custody, where he has remained since.

         In March 2015, O.G.L.S. made the disclosures referenced above concerning his criminal activities while part of the gang. As a result of these disclosures, ORR transferred him to a “staff-secure program, ” Heartland International Youth Center. One week later, he was transferred to SVJC Secure, a “secure program, ” where he has been since March 13, 2015. Two months later, O.G.L.S. recanted those earlier admissions-first to his mother and then to a counselor-and he has consistently maintained that he did not engage in that conduct. He also has submitted an affidavit in this case to that effect. (Reply Ex. E, O.G.L.S. Decl., ¶¶ 38-44, 50, 52, 57.) He has continued to maintain that his recantation is the truth and that his initial “confession” about his activities was not true.

         Since he has been in ORR custody, O.G.L.S. has had some behavioral problems. Although there have been a number of “significant incident reports” (SIRs) that involved him, some of them involved his reports of his gang conduct or a concern over self-harm (which his clinician ultimately determined was not grounds for any serious concern). Still others involved incidents in which he was a victim of assaults by others or in which he avoided involvement in physical altercations or removed himself from them. Petitioners admit, though, that over the course of O.G.L.S.'s time in ORR custody, seven reports involved him in physical altercations with staff or other juveniles, although some of those were instigated by peers. (See Resp. Ex. 1, at 5, 13, 16, 27, 34-36, 54, Dkt. No. 21.)

         One of these incidents also resulted in criminal charges being brought against O.G.L.S. in juvenile court, but the charges were later dismissed in their entirety. In the dismissal order, the state court noted its belief that O.G.L.S. was “adversely affected by 2 years in juvenile detention” and that “he is a law abiding asset to society.”[3] (Resp. Ex. 4, at 2.)

         Ms. Santos filed a family reunification application with ORR on December 18, 2014, two days after her son was apprehended. (Mem. Ex. F.) She included a copy of his birth certificate, verifying that she was his mother. (Id.) In response, ORR conducted a psychological evaluation of O.G.L.S. It also contracted for a home study of Ms. Santos's home, which resulted in a report dated March 3, 2015. (Mem. Ex. N.) That report recommended reunification, specifically noting that “Ms. Santos [and her husband] will be positive influences on minor, and that he should be released to their care.” It recommended a safety/transition plan to address both the trauma in his home country and his admission of the significant criminal conduct (which he had not yet recanted), and it said that any concerns his psychiatrist had should be shared with Ms. Santos prior to his release.

         Two days later, a brief update was added to the report that, despite his transfer to a higher-security facility, the “positive recommendation for release to [Ms. Santos] has not changed.” The update recommended, though, that O.G.L.S.'s clinician at his new placement “assess when it is clinically appropriate” for him to be released to Ms. Santos and further recommended post-release services.

         Despite the completion of the home study report in March 2015, the ORR did not issue a decision or respond to Ms. Santos's request for reunification until May 31, 2016, more than 17 months after her petition was filed, and more than 14 months after the home study was completed. (Mem. Ex. G.) The denial was a brief letter that stated in general terms the information that had been reviewed, and then gave three one-sentence reasons for the denial: that O.G.L.S. “poses a safety risk to the community”; that “he requires an environment with a high level of supervision and structure that [she is] unable to provide at this time”; and that Ms. Santos was “unable to identify a care plan that would ensure the care and supervision necessary” for his safety and well-being. (Id.)

         In June 2016, Ms. Santos timely requested reconsideration (Mem. Ex. H), which was denied approximately four months later. The denial discussed some of the general legal standards applicable to ORR's decision, noted the three reasons for the initial denial, and provided two additional sentences setting forth some additional information that the decision-maker considered or noted. This information included O.G.L.S.'s self-reported gang involvement, his behavior while in care, and stated that he had since been “convicted of three felony assault and battery charges for assaulting staff.” (Mem. Ex. I.) This latter fact was untrue. At the time of that denial (November 4, 2016), there were charges pending against in O.G.L.S. in juvenile court, but he never was convicted and those charges were later dismissed in their entirety. That denial letter offered Ms. Santos the opportunity to review case file documents if her son provided a release and also invited her to submit any additional materials and any response by December 5, 2016.[4]

         Once again, Ms. Santos submitted a response to the denial. (Mem. Ex. K.) This response was detailed and cited specific portions of her son's file, now that at least some of it had been made available to her. Her response also pointed out the error concerning the alleged convictions. (Id.) Approximately two weeks later, ORR again denied her request for reconsideration. The letter was virtually identical to the November 4, 2016 denial, and even continued to include the erroneous statement that O.G.L.S. had been convicted of three felony assault and battery charges. It also reiterated that O.G.L.S. “continues to require an environment with a high level of supervision and structure that you are unable to provide at this time and his custody is required to ensure the safety of others.” (Mem. Ex. L.) It noted, though, that ORR had adopted a new policy on Review and Reconsideration of Release Denials and stated Ms. Santos should contact the Office of the Director at ORR if she wished “further review of [her] case in accordance with the new policy.” (Mem. Ex. L, at 3.)

         She then requested an in-person hearing. After the hearing held by this court and in response to the in-person hearing request, the ORR again denied release without a hearing in a May 25, 2017 letter, albeit in a more detailed fashion than previously provided. (See Status Report, Dkt. No. 29-1.) Specifically, this letter emphasized O.G.L.S.'s substance abuse and other counseling needs, strongly implying that his needs were better met by ORR than by his mother. It did not explain, however, why she could not provide these services. The denial also reiterated ORR's position that O.G.L.S. poses a risk to others.

         At this point in time, O.G.L.S. has been held for more than 29 months, spanning years that are a crucial time in a young person's development. The parties agree that, throughout the time O.G.L.S. has been in ORR's custody, many people have advocated for his release to his mother. For example, ORR appointed O.G.L.S. a child advocate, who serves as a sort of guardian ad litem for him, recommending what the advocate believes is in his best interest in terms of placement and services. In a report dated August 10, 2015, the child advocate recommended that he “be reunified without delay to his mother, with the appropriate follow-up services.” His child advocate has continued to recommend reunification, as have others, including a physician who has examined him. (See Mem. Ex. U (summarizing recommendations as of July 2016).) There are also reports, however, that suggest reunification should not be immediate or that recommend denial of reunification because of the concern that O.G.L.S. may present a danger to others. So, there is not unanimity of opinion on the issue, although the vast majority of reports certainly support reunification.

         B. Procedural Background

         The habeas petition in this case was filed by Ms. Santos, both in her individual capacity and as the next friend of O.G.L.S. She named as respondents Timothy J. Smith (the Executive Director of the SVJC, Cristina Casado (ORR/DCS Program Manager at SVJC), Scott Lloyd (Director of ORR), [5] and Thomas Price (Secretary of DHHS).

         The petition asserts three counts: (1) Ms. Santos's “constitutional claim to family unity” as a mother, brought in her individual capacity; (2) O.G.L.S.'s constitutional claim to family unity; and (3) O.G.L.S.'s “constitutional claim to liberty.” All of the counts are premised on alleged violations of substantive and procedural due process under the Fifth Amendment. (See generally Dkt. No. 1.) In the prayer for relief, Ms. Santos requests that the court declare unlawful ORR's continued detention of, and custody over, O.G.L.S. and order his immediate release to her custody. She also requests costs and attorney's fees. (Id. at 6.)

         The parties agreed to an expedited briefing process and have fully briefed the issue and provided numerous exhibits for the court's consideration. On May 16, 2017, the court held a summary hearing pursuant to 28 U.S.C. § 2243, although the parties presented no additional evidence at that hearing, only argument. See 28 U.S.C. § 2246 (allowing evidence to be taken by affidavit); Hamdi v. Rumsfeld, 542 U.S. 507, 526 (2004) (discussing 28 U.S.C. §§ 2243 and 2246 and explaining that “the simple outline of § 2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process”). At the hearing, the parties agreed that the court could consider the various exhibits attached by the parties to their briefing when ruling on the petition, with one exception. Specifically, respondents stated that they did not believe the court should consider the declaration of Hayley Cleary, which provided what is essentially expert testimony concerning the academic research and literature regarding risk factors for false confessions. (Reply Ex. I.) The court gave respondents seven days from the date of the hearing to provide a supplemental brief on this issue, but no additional brief has been filed and the time for doing so has passed. Accordingly, the petition is now ripe for disposition.


         A. General Legal Principles

         The Fourth Circuit has recently addressed several of the issues raised in this case. D.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) (Cardall). The Cardall court's discussion included an overview of the legal framework that governs the care and custody of UACs, including a discussion of the historical development of that framework. Id. at 731-34. Rather than repeat the details of that framework here, the court assumes the reader's familiarity with it. Briefly summarized, though, the government's obligations concerning the care and custody of UACs stem from two primary sources. First, there are two statutes that address those obligations: 6 U.S.C. § 279 and 8 U.S.C. § 1232, the latter of which was amended in 2008 by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). Second, ORR is bound, subject to changes in the applicable statutes, to abide by a court-approved settlement agreement in a class action suit that was brought initially by several juvenile aliens in INS custody (the Flores agreement). Cardall, 826 F.3d at 732.

         Among other obligations, ORR must place a UAC in the “least restrictive setting that is in the [UAC's] best interests” and must review monthly placement decisions of any UAC in a secure facility. Pursuant to the Flores agreement and the TVPRA, ORR should release to a parent, if available, but only if ORR determines “that the proposed custodian is capable of providing for the child's physical and mental well-being.” 8 U.S.C. § 1232(b)(3)(A).

         This court also has the benefit of the Eastern District of Virginia's analysis after the Fourth Circuit remanded the same case. Beltran v. Cardall, __ F.Supp.3d __, No. 1:15-cv-745, 2016 WL 6877305 (E.D. Va. Nov. 22, 2016) (Beltran). Although there are some factual differences between the Beltran/Cardall case and this case, and although respondents assert that the district court's decision on remand was incorrect, both opinions in that case are a ...

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