United States District Court, E.D. Virginia, Alexandria Division
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.
M. Brinkema, United States District Judge.
("plaintiffs") in this putative class
action 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") 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.
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. ¶¶
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.
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.
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.
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
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.
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.
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.
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. 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.
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.
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.
Statutory and Administrative Background
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
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.
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
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.").
Homeland Security Act
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).
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.
Trafficking Victims Protection Reauthorization Act
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).
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 ...