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Ramirez v. U.S. Immigration and Custom Enforcement

United States District Court, District of Columbia

April 18, 2018

WILMER GARCIA RAMIREZ, et al., Plaintiffs.



         Granting Plaintiffs' Motion for Preliminary Injunction


         Plaintiffs-three immigrant teenagers who entered the United States without inspection as unaccompanied minors-bring this putative class action, alleging 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. Presently before the Court is a motion for preliminary injunctive relief, which seeks to compel Defendants to comply with the statutory mandate in placing Plaintiffs Wilmer Garcia Ramirez and Sulma Hernandez Alfaro. For the reasons explained below, the Court grants the motion.


         A. Statutory and Regulatory Framework

         Most immigration enforcement functions are carried out by the Department of Homeland Security (“DHS”), in which Immigration and Customs Enforcement (“ICE”) is housed. See 6 U.S.C. §§ 111, 251, 291. 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”). 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 and Procedural History

         Plaintiffs in this case are three immigrant teenagers who were previously held in ORR custody as unaccompanied alien children. 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 of similarly situated individuals. See Id. ¶ 6. Two of the three Plaintiffs-Wilmer Garcia Ramirez and Sulma Mirian Hernandez Alfaro-were the original plaintiffs in this case and are the focus of the motion for preliminary injunctive relief presently before the Court.[1]

         According to Plaintiffs' complaint, Wilmer Garcia Ramirez was born into poverty in Guatemala in 1999. See Id. ¶¶ 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; Ex. B, ECF No. 2-3. That petition remains pending. 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 a SIJS petition. See Email from Noriana C. Hermes (Sept. 22, 2017) at 7, Ex. D, 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) at 9, Ex. D, 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, 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 classification level. Id. ¶ 7. Based in part on the results of that assessment, officials classified him as a level 1 detainee-the lowest custody level at EDC-and housed him with other level 1 or low level 2 detainees, who have no criminal history or only a minor, non-violent criminal history. Id.

         Mr. Garcia Ramirez twice initiated processes for requesting reconsideration of his placement in an adult detention facility. First, in November 2017, he requested a custody redetermination hearing before an immigration judge. See Mot. for Custody Redetermination Hearing, Ex. E at 9-12, ECF No. 20-5. A bond hearing was scheduled. See Notice of Custody Redetermination Hearing in Immigration Proceedings, Ex. E at 13, ECF No. 20-5. Mr. Garcia Ramirez later moved to vacate the hearing, however, explaining that a potential sponsor could no longer assist with his bond. See Unopposed Mot. to Vacate Bond Hearing, Ex. E at 15, ECF No. 20-5.

         Second, through counsel, Mr. Garcia Ramirez sent a letter to ICE in January 2018, requesting release to the least restrictive setting available pursuant to 8 U.S.C. § 1232(c)(2)(B). Letter from Néstor Allende-Asparó to Justin Laub (Jan. 5, 2018), Ex. E at 20-23, ECF No. 20-5; Decl. of Néstor Allende-Asparó (“Allende-Asparó Decl.”) ¶ 6, Ex. A, ECF No. 23-1. Counsel contends that he received no response to that letter. See Allende-Asparó Decl. ¶¶ 7-10. In the course of this litigation, however, ICE produced a letter, dated January 23, 2018 and addressed to Mr. Garcia Ramirez's counsel, which purports to respond to counsel's request. See Letter from Albert E. Carter to Néstor Allende-Asparó (Jan. 23, 2018), Ex. E at 24, ECF No. 20-5. Interpreting the request as a bid for “prosecutorial discretion in the form of release from custody, ” the ICE deputy field office director of the Phoenix Field Office denied the request on the basis that “the totality of circumstances d[id] not support a favorable exercise of discretionary authority in this case.” Id. According to Mr. Garcia Ramirez's counsel, ICE did not discuss alternatives to detention with him at any time before or after Mr. Garcia Ramirez's eighteenth birthday. Allende-Asparó Decl. ¶ 5. Mr. Garcia Ramirez remains detained at EDC. See First Am. Compl. ¶ 38.

         The other original plaintiff in this case is Sulma Hernandez Alfaro, who was born in 2000 in Honduras. Id. ¶ 41. In Honduras, she was subjected to multiple forms of abuse by members of her father's family, including and especially her uncle, who threatened her with death. Id. ¶ 43. Because of the abuse that she suffered and the threats that she faced, Ms. Hernandez Alfaro left Honduras and travelled to the United States, seeking safety. Id. ¶ 44. In September 2016, she crossed into the United States without inspection. Id. ¶ 45. A Border Patrol unit apprehended her and, after determining that she was an unaccompanied immigrant child, transferred her to the custody of ORR. Id. ¶ 45.

         ORR placed Ms. Hernandez Alfaro in a shelter for unaccompanied immigrant children in San Benito, Texas. Id. ¶ 46. While in ORR custody, she was diagnosed with Post-Traumatic Stress Disorder, which resulted from the abuse she suffered in Honduras. Id. ¶ 47. In November 2017, Ms. Hernandez Alfaro applied for asylum based on the abuse and harm she had experienced. See Notice of Action, Ex. D, ECF No. 2-5; First Am. Compl. ¶ 48. That application remains pending. See First Am. Compl. ¶ 48.

         On January 16, 2018, just days before Ms. Hernandez Alfaro's eighteenth birthday, an ICE deportation officer emailed the shelter where she was being housed to confirm that she would soon age out of ORR's jurisdiction and “that there [were] no reunification plans, so [ICE] c[ould] make arrangements to have her placed in the appropriate adult facility.” Email (Jan. 15, 2018), Ex. B at 9, ECF No. 20-2. A case manager for the shelter responded, explaining that ORR had attempted several times to reunify Ms. Hernandez Alfaro with relatives, but that each of the potential sponsors did not meet ORR sponsorship requirements. Email (Jan. 16, 2018), Ex. B at 8, ECF No. 20-2; see also Decl. of Jose Cortez (“Cortez Decl.”) ¶ 20, ECF No. 20-2. The email included a copy of a “Post 18 Plan” crafted for Ms. Hernandez Alfaro, which included information about ORR's unsuccessful reunification attempts. See Post 18 Safety Plan, Ex. B at 11, ECF No. 20-2; see also Cortez Decl. ¶ 21.

         When Ms. Hernandez Alfaro turned eighteen, ORR transferred her to ICE's custody. First Am. Compl. ¶ 49. According to Supervisory Detention and Deportation Officer (“SDDO” or “Officer”) Jose A. Cortez, on January 18, 2018, Deportation Officer Anthony Martinez initiated an electronic risk classification assessment to assess whether to release, detain, or consider alternatives to detention for Ms. Hernandez Alfaro. Cortez Decl. ¶ 22. Officer Cortez contends that Ms. Hernandez Alfaro was determined to pose a high risk of absconding due to not having a sponsor or fixed, permanent address in the United States that she had lived with for at least six months. Id. Officer Martinez purportedly recommended that Ms. Hernandez Alfaro be detained, a decision with which Mr. Cortez contends he agreed. Id. ¶ 23. DHS placed Ms. Hernandez Alfaro at Port Isabel Detention Center (“PIDC”), an adult detention facility in Los Fresnos, Texas. See First Am. Compl. ¶ 14.

         Like Mr. Garcia Ramirez, Ms. Hernandez Alfaro requested changes in her state of confinement. First, on February 2, 2018, Ms. Hernandez Alfaro's counsel faxed a letter to Deportation Officer Robert Cantu, requesting that she be released on her own recognizance. See Letter from Rosemary Gonzalez to Robert Cantu (Feb. 2, 2018) (“2/2/18 Letter”), ECF No. 2-9; Decl. of Rosemary Gonzalez (“Gonzalez Decl.”) ¶ 7, ECF No. 23-2. The letter mentioned the special statutory protections afforded unaccompanied immigrant children and contended that Ms. Hernandez Alfaro was neither a flight risk nor a danger to the community. 2/2/18 Letter at 3-4. Counsel also asserted that Ms. Hernandez Alfaro's placement in an adult detention facility had worsened her post-traumatic stress symptoms. Id. Counsel presented an alternative to her client's present placement: La Posada Providencia, a transitional shelter that had agreed to take in Ms. Hernandez Alfaro upon her release from the detention facility. See Id. at 4; Letter from Monica Pena-Rasmussen, Client Coordinator, La Posada Providencia (Jan. 17, 2018), ECF No. 2-10. According to counsel, she followed up with several calls to Ms. Hernandez Alfaro's deportation officer, however, her calls went unanswered. Gonzalez Decl. ¶¶ 8-9.

         Five days later, Ms. Hernandez Alfaro's counsel visited PIDC and met briefly with Officer Cantu in the facility lobby. See Gonzalez Decl. ¶¶ 10-11; Decl. of Robert Cantu (“Cantu Decl.”) ¶ 7, ECF No. 20-1. According to counsel, she mentioned her prior request for her client's release, noting that she had appended a letter of support from La Posada Providencia. Gonzalez Decl. ¶ 11. Counsel also explained, among other things, that Ms. Hernandez Alfaro had been classified as an unaccompanied alien minor upon her arrival, that she had applied for asylum, and that she had already completed an asylum interview. Id. According to counsel, during the lobby meeting, Officer Cantu stated that he had not reviewed the materials that she had submitted on behalf of her client. Id. ¶ 12. Counsel also recalls that Officer Cantu rejected La Posada Providencia as a placement option-contending that many individuals released to the shelter abscond-and that Officer Cantu stated that he would not release Ms. Hernandez Alfaro because she had no other family in the United States and he would only consider releasing her to a family member. Id. ¶ 14. The Officer purportedly gave counsel no indication that he had independently considered any less restrictive placements than adult detention for Ms. Hernandez Alfaro. Id. ¶ 17.

         While Officer Cantu agrees that he rejected La Posada Providencia as a placement option, he otherwise depicts the conversation differently. See Cantu Decl. ¶¶ 6-7. He contends that he verbally denied counsel's request “after taking all relevant facts into consideration, including [Ms. Hernandez Alfaro's] illegal entry to the United States as an unaccompanied alien minor, her current age, the copy of her birth certificate, her lack of criminal history, her lack of strong family ties in the United States, the lack of a fixed, permanent address, the lack of a dependable sponsor, and her pending application [for asylum].” Id. ¶ 8. According to Officer Cantu, he reviewed a file that contained certain information about Ms. Hernandez Alfaro's case, including the letter from La Posada, before speaking with counsel and rejecting the request. See Id. ¶¶ 10- 15.

         Ms. Hernandez Alfaro next sought a change in her custody at a bond hearing before an immigration judge in March 2018. See Mot. for Custody Redetermination, Ex. A at 8-10, ECF No. 20-1. The immigration judge granted her request, ordering her release from custody under bond of $10, 000. See Order of the Immigration Judge with Respect to Custody, Ex. A at 32, ECF No. 20-1. Ms. Hernandez Alfaro remains detained at PIDC. See First Am. Compl. ¶ 14.

         Plaintiffs filed suit in March 2018, and, shortly after, requested a temporary restraining order and preliminary injunction. See Compl., ECF No. 1; Mot. Temp. Restraining Order & Prelim. Injunction, ECF No. 2. After a hearing held just three days after the motion was filed, this Court denied the motion for a temporary restraining order, explaining that, given the dearth of evidence on record, Plaintiffs had not met their burden of showing a substantial likelihood of prevailing on the merits. Tr. of Temp. Restraining Order Mot. Hr'g (Mar. 8, 2018) at 37:1-9, ECF No. 19. The Court also noted that Plaintiffs appeared to request a change in, rather than a preservation of, the status quo, and that the relief Plaintiffs sought in the motion overlapped substantially with the merits of their case. Tr. of Temp. Restraining Order Mot. Hr'g (Mar. 8, 2018) at 37:1-9. Subsequently, after being able to gather information about the respective Plaintiffs' claims, the Government has submitted written opposition to the Plaintiffs' request for injunctive relief. Plaintiffs' motion for preliminary injunction is now ripe for consideration.


         A. Administrative Procedure Act

         Plaintiffs bring their claims pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 101-913, which governs the conduct of federal administrative agencies. The APA permits a court to “compel agency action unlawfully withheld or unreasonably delayed, ” and to “hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. The APA provides for judicial review of all “final agency action for which there is no other adequate remedy in court, ” id. § 704, except when “statutes preclude judicial review” or the “agency action is committed to agency discretion by law, ” id. § 701(a).

         B. Preliminary Injunction

         “[A] preliminary injunction is an injunction to protect [the movant] from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures § 2947 (2d ed. 1992)). “[T]he decision to grant injunctive relief is a discretionary exercise of the district court's equitable powers.” John Doe Co. v. Consumer Fin. Prot. Bureau, 235 F.Supp.3d 194, 201 (D.D.C. 2017) (quoting Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C. Cir. 1989)). A preliminary injunction is an “extraordinary remedy, ” and one is “never awarded as of right.” Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To warrant preliminary injunctive relief, the moving party “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. Of these factors, likelihood of success on the merits and irreparable harm are particularly crucial. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (reading Winter “to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction'” (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (2009) (concurring opinion))); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“[A] movant must demonstrate at least some injury for a preliminary injunction to issue, for the basis of injunctive relief in federal courts has always been irreparable harm.” (internal citations and quotation marks omitted)).

         IV. ANALYSIS

         Plaintiffs assert, that when they turned eighteen years old and were transferred from HHS custody to DHS custody, DHS placed them in adult detention facilities without considering less restrictive placement options in violation of 8 U.S.C. § 1232(c)(2)(B). They seek preliminary injunctive relief in the form of an order directing DHS to consider less restrictive placements for Plaintiffs Wilmer Garcia Ramirez and Sulma Hernandez Alfaro. Defendants argue that Plaintiffs have not shown that they are entitled to preliminary injunctive relief. The Court first considers Defendants' justiciability arguments, then addresses the merits of Plaintiffs' motion. As explained ...

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