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J.E.C.M. v. Lloyd

United States District Court, E.D. Virginia, Alexandria Division

November 15, 2018

J.E.C.M., a minor, by and through his next friend JOSE JIMENEZ SARAVIA, et al, Plaintiffs/Petitioners,
SCOTT LLOYD, Director, Office of Refugee Resettlement, et al., Defendants/Respondents.


          Leonie M. Brinkema, United States District Judge.

         Plaintiffs/petitioners ("plaintiffs") in this putative class action[1] are four minors from Central America designated as "unaccompanied alien children" who are, or who have been, in the custody of the Office of Refugee Resettlement ("ORR") and the four sponsors who filed family reunification applications on their behalf. Defendants/respondents ("defendants")[2] are the minors' custodians and the officials responsible for administering ORR's policies with respect to the detention and release of unaccompanied minors. Plaintiffs allege that defendants' policies violate constitutional, statutory, and administrative law, and they seek declaratory and habeas relief as well as attorney's fees and costs. Before the Court is defendants' motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim [Dkt. Nos. 35 and 36]. For the reasons stated below, the motion will be granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background[3]

         1. J.E.C.M.

         J.E.C.M. is a 13-year-old Honduran boy. While in Honduras, J.E.C.M. and his family relied on his sister and his brother-in-law Jose Jimenez Saravia ("Jimenez Saravia"), who were living in the United States, for support. Second Am. Class Action Compl. and Pet. for a Writ of Habeas Corpus [Dkt. No. 21] ("Compl.") ¶¶ 90-91. He attended school and, despite living in a violent area, was never involved in any crime. Id. ¶¶ 91-92. Fearing persecution, J.E.C.M. fled Honduras in December 2017. Id. ¶¶ 90, 93. Upon reaching the United States in February 2018, he was promptly apprehended by agents of the U.S. Customs and Border Protection ("CBP"), initially placed in a San Diego shelter, and subsequently transferred to a "staff secure" ORR facility in Washington state. Id. ¶¶ 93-94.

         Jimenez Saravia completed a family reunification application on J.E.C.M.'s behalf. Although J.E.C.M.'s case manager prepared an ORR Release Notification indicating ORR had determined that J.E.C.M. should be released to Jimenez Saravia's custody, before J.E.C.M. could be released, he was involved in a physical altercation with an ORR staff member. Compl. ¶¶ 95-97. The staff member allegedly pushed J.E.C.M. into an emergency exit door, which opened and sent J.E.C.M. "tumbl[ing] out." He fled the ORR facility, hiding in a trash can for hours until police discovered him and took him to jail. Id. ¶¶ 96-97. As a result of this incident, J.E.C.M. was classified as a "runaway" and sent to the Northern Virginia Juvenile Detention Center, a high-security ORR facility where he lived with older, "at-risk" children and "was the target of constant bullying." Id. ¶¶ 97-99.

         Although J.E.C.M.'s case manager had recommended that he be released to Jimenez Saravia, ORR insisted that all adult members of Jimenez Saravia's household had to provide biographical and biometric information to be used for background checks. Compl. ¶ 100. Several members of the household were reluctant to do so, fearing that the information would result in immigration enforcement. Id. This delayed the processing of Jimenez Saravia's application. Id. ORR ultimately decided to waive the identification and fingerprinting requirements, and on July 26, 2018-less than a week after this action was filed-J.E.C.M. was released to Jimenez Saravia's custody. Id. ¶ 102; Memo, of Law in Opp'n to Pls.' Mot. for Class Certification Ex. A [Dkt. No. 19-1] ¶ 17. Altogether, J.E.C.M. spent approximately six months in ORR custody. Compl. ¶¶ 93, 102. He claims to have suffered anxiety and depression as a result. Id. ¶ 101.

         2. R.A.I.

         R.A.I, is 15 years old. Compl. ¶ 117. She was born in Honduras and from the age of five was raised by her sister, Sandra Alvarado ("Alvarado"). Id. Fleeing from violence in their community and seeking better educational opportunities, R.A.I, and Alvarado came to the United States in April 2018. Id. ¶ 118. The two were separated at the border; Alvarado, an adult, was released on her own recognizance, but R.A.I, was handed over to ORR and sent to Youth for Tomorrow, a "shelter care" facility in Virginia. See Id. ¶¶ 45, 119.

         Alvarado moved to Maryland and applied to regain custody of R.A.I. Compl. ¶ 120. Her application was delayed for months because her roommates refused to provide identification or fingerprints to ORR. Id. Alvarado ultimately moved into a new home with other siblings living in Maryland, all of whom were willing to provide such information. Id. ¶ 121. Although R.A.I. was in ORR custody when defendants filed their motion to dismiss, see Memo, of Law in Supp. of Defs.' Mot. to Dismiss [Dkt. No. 37] ("Defs.' Memo.") 10, she has since been released to Alvarado, see Reply Memo, of Law in Supp. of Defs.' Mot. to Dismiss [Dkt. No. 53] ("Defs.' Reply") 2. She had spent six to seven months in ORR custody.

         3. K.T.M.

         K.T.M. is a 15-year-old boy who fled his home country of Honduras with his older sister Wendy "to escape violent and credible threats on his life after his father was murdered in front of him." Compl. ¶ 124. They hoped to reunite with K.T.M.'s other sister, Cynthia Velasquez Trail ("Velasquez Trail"), who had moved to the United States a few years earlier and with whom K.T.M. had remained in close contact. Id. Upon their arrival in the United States in March 2018, K.T.M. and Wendy were separated; Wendy went to live with Velasquez Trail, while K.T.M. was sent to Youth for Tomorrow. Id. ¶ 125.

         Velasquez Trail submitted a family reunification application on K, T.M.'s behalf, but her application was also delayed at the documentation stage. Compl. ¶ 126. Although all adult members of Velasquez Trail's household agreed to provide biographical and biometric information to ORR, Wendy could not attend her initial fingerprint appointment because U.S. Immigration and Customs Enforcement ("ICE") officials had confiscated her identification card at the border. Id. The application was ultimately completed in early August 2018, Id. ¶ 126, and K.T.M. was released to Velasquez Trail's custody in late September of that year, Pls.' Memo, of Law in Opp'n to Defs.' Mot. to Dismiss [Dkt. No. 41] ("Pls.' Opp'n") 7 n.13. He had been in ORR custody for six to seven months.

         4. B.G.S.S.

         B.G.S.S. is a 17-year-old boy who in May 2018 came to the United States from Guatemala "to escape persecution and because his mother had passed away." Compl. ¶ 103. While in Guatemala, B.G.S.S. attended school and kept in close contact with his sister Blanca Jeronimo Sis ("Jeronimo Sis"), who was living in the United States. Id. ¶¶ 104-05. He had never been arrested for or charged with any crime. Id. ¶ 105.

         After he was apprehended in the United States, B.G.S.S. was placed in a small ORR shelter of about 50 minors, where staff began work on family reunification. Compl. ¶ 106. After only 10 days, B.G.S.S. was transferred to Casa Padre, which plaintiffs describe as a "warehouse of about 1, 500 children, housed in a converted Walmart." Id. Plaintiffs allege that B.G.S.S. "became depressed, irritable, and hopeless" after being transferred to Casa Padre and that he received several "significant incident reports" for things he said to ORR staff or other detainees, including "inappropriate but false claims about his age and about past and future violence." Id. ¶¶ 106-09.[4] As a result, B.G.S.S. was sent to Shenandoah Valley Juvenile Center, a "secure" facility that "serves both as an ORR facility and as a juvenile jail for minors ... who have been adjudicated delinquent." Id., ¶¶ 8, 109, 112.

         Jeronimo Sis, who lives in Virginia, filed a family reunification application seeking custody of B.G.S.S. Comp. ¶ 113. Although she had provided her own identification and fingerprints as part of that application, ORR informed her that the application was incomplete and that it would require such information from all adult members of her household, "including her adult daughter and her partner." Id. ¶¶ 113-14. Jeronimo Sis's partner was "fearful of providing his information to ORR to be shared with ICE and used for immigration enforcement." Id. ¶ 114. Her daughter was similarly uncertain. See id ORR employees told Jeronimo Sis that the only ways she could proceed with her application were to submit her partner's and daughter's information or to live separately from them. Id. Her partner and daughter have since moved out of the family home so that the application process can proceed. See Pls.' Opp'n Ex. 3 [Dkt. No. 41-3] ("Jeronimo Sis Decl.") ¶¶ 11-13, 15.

         B.G.S.S. remains in ORR custody. Defs.' Reply 7. In August 2018, he was transferred to a "staff secure" facility in Texas, and he has since been moved again, this time to a high-security juvenile jail in California. Pls.' Opp'n 7 n.13. Jeronimo Sis had previously completed her family reunification application on B.G.S.S.'s behalf, but B.G.S.S.'s new case manager recently informed her that she would have to resubmit all materials, including fingerprints. Jeronimo Sis Decl. ¶ 17. B.G.S.S. has now been in custody for approximately six months and alleges that he has experienced anxiety, depression, and stress. Compl. ¶¶ 108, 116.

         B. Statutory and Administrative Background

         Thousands of "unaccompanied alien children"-defined as minors with no lawful immigration status and no identifiable parent or legal guardian, 6 U.S.C. § 279(g)(2)-arrive in the United States each year. Compl. ¶ 37. Many, including plaintiffs, come from Central American countries experiencing "endemic levels of crime and violence." Id. Congress has charged ORR, which is under the umbrella of the Department of Health and Human Services ("HHS"), with the responsibility of caring for and ultimately releasing such minors, and a No. of statutory and administrative sources of law govern how ORR may go about that task.

         1. The Flores Agreement

         In the 1980s, unaccompanied minors in custody of the U.S. Immigration and Naturalization Service ("INS") brought a class action challenging their confinement. See D.B. ex rel. R.M.B. v. Cardall, 826 F.3d 721, 732 (4th Cir. 2016). After years of litigation, the parties entered into a court-approved settlement now known as the Flores Agreement. See id The agreement, which "is binding on all successor agencies to the INS," including ORR, see id, "sets out nationwide policy for the detention, release, and treatment of minors" held in custody because of their immigration status. Defs.' Memo. Ex. A [Dkt. No. 37-1] ("Flores Agreement") ¶ 9.

         The Flores Agreement obliges ORR to treat "all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors." Flores Agreement ¶ 11. It provides that ORR

shall 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 immigration courts and to protect the minor's well-being and that of others. Nothing herein shall require [ORR] to release a minor to any person or agency whom [ORR] has reason to believe may harm or neglect the minor or fail to present him or her before the ... immigration courts when requested to do so.

Id. The agreement establishes a "general policy favoring release": Where "detention of the minor is not required," ORR "shall release a minor from its custody without unnecessary delay." Id ¶ 14 (capitalization altered). It also creates an order of preference governing to whom unaccompanied minors should be released.[5]

         ORR may perform a "suitability assessment" to investigate "the living conditions in which the minor would be placed and the standard of care he would receive." Flores Agreement ¶ 17. That assessment may involve verifying the identity of the potential sponsors, interviewing members of the household, and conducting home visits. Id. ORR must consider "the wishes and concerns of the minor." Id. Further, ORR may not delay reunification; the Flores Agreement requires that it make "prompt and continuous efforts ... toward family reunification and the release of the minor." Id. ¶ 18; see also Id. ("Such efforts at family reunification shall continue so long as the minor is in [ORR] custody.").

         2. The Homeland Security Act

         The Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2136, abolished the INS and redistributed its responsibilities to other departments. It assigned "the care of unaccompanied alien children" to the ORR Director. See Id. § 462, 116 Stat, at 2202-05 (codified as amended at 6 U.S.C. § 279). Among the duties explicitly assigned to ORR are "coordinating and implementing the care and placement of unaccompanied [minors] who are in Federal custody"; "ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of unaccompanied minors; "making placement determinations"; and "conducting investigations and inspections of facilities and other entities in which unaccompanied [minors] reside." 6 U.S.C. § 279(b)(1).

         HSA guidance on placement determinations prohibits ORR from releasing unaccompanied minors on their own recognizance. 6 U.S.C. § 279(b)(2)(B). In deciding where to place minors, ORR must ensure that they "are likely to appear for all hearings or proceedings in which they are involved"; "are protected from smugglers, traffickers, or others who might seek to victimize or otherwise engage them in criminal, harmful, or exploitive activity"; and "are placed in a setting in which they are not likely to pose a danger to themselves or others." Id. § 279(b)(2)(A). The ORR Director must "consult with appropriate juvenile justice professionals, the Director of the Bureau of Citizenship and Immigration Services, and the Assistant Secretary of the Bureau of Border Security." Id.

         3. The Trafficking Victims Protection Reauthorization Act

         In the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), Pub. L. No. 110-457, 122 Stat. 5044, Congress set out "to enhance the efforts of the United States to prevent trafficking in persons," including in unaccompanied minors. See Id. § 235, 122 Stat, at 5074-82 (codified as amended at 8 U.S.C. § 1232). Although the TVPRA reiterates that HHS is responsible for "the care and custody of all unaccompanied alien children," 8 U.S.C. § 1232(b)(1), it requires interdepartmental coordination. For example, HHS must collaborate with the Department of Homeland Security ("DHS"), along with the Department of State and the Department of Justice, "to ensure that unaccompanied alien children in the United States are safely repatriated to their country of nationality or of last habitual residence." Id. § 1232(a)(1). Likewise, the TVPRA requires those departments to "establish policies and programs to ensure that unaccompanied alien children in the United States are protected from traffickers and other persons seeking to victimize" them. Id. § 1232(c)(1).

         The TVPRA establishes guidelines for "[p]roviding safe and secure placements" for unaccompanied minors. 8 U.S.C. § 1232(c). Any child in ORR custody "shall be promptly placed in the least restrictive setting that is in the best interest of the child." Id. § 1232(c)(2)(A). In making that placement determination, ORR "may consider danger to self, danger to the community, and risk of flight." Id. Moreover, the TVPRA provides that an unaccompanied minor "may not be placed with a person or entity unless the Secretary of [HHS] makes a determination that the proposed custodian is capable of providing for the child's physical and mental well-being." Id. § 1232(c)(3)(A). That determination "shall, at a minimum, include verification of the custodian's identity and relationship to the child, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child." Id. Finally, the TVPRA provides that on ...

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