United States District Court, District of Columbia
WILMER GARCIA RAMIREZ, et al., Plaintiffs.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
MEMORANDUM OPINION RE DOCUMENT NO.: 2
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
Plaintiffs' Motion for Preliminary Injunction
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.
Statutory and Regulatory Framework
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. §
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. §
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.
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. §
Factual Background and Procedural History
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
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.
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.
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.
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
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.
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
(“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. ¶
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.
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.
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.
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.
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.
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. ¶
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.
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.
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.
Administrative Procedure Act
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).
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
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 ...