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 6, 36 DENYING
DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED
COMPLAINT; GRANTING PLAINTIFFS' MOTION FOR CLASS
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
immigrants teenagers who entered the United States as
unaccompanied alien children-bring this putative class action
against Immigration and Customs Enforcement
(“ICE”), the Acting Director of ICE, the
Department of Homeland Security (“DHS”), and the
Secretary of Homeland Security. They allege 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
earlier stage of this litigation, this Court granted a motion
for preliminary injunction filed on behalf of Plaintiffs
Wilmer Garcia Ramirez and Sulma Hernandez Alfaro. See
generally Ramirez v. ICE, 310 F.Supp.3d 7 (D.D.C. 2018).
Finding that Mr. Garcia Ramirez and Ms. Hernandez Alfaro had
shown that they were likely to succeed on the merits of their
claim that ICE had not complied with 8 U.S.C. §
1232(c)(2)(B) in placing them, that they would suffer
irreparable harm absent injunctive relief, and that both a
balancing of the equities and public interest considerations
favored Plaintiffs, the Court ordered Defendants to comply
with 8 U.S.C. § 1232(c)(2)(B) in placing Mr. Garcia
Ramirez and Ms. Hernandez Alfaro. See Id. at 25-34.
Now before the Court are Defendants' motion to dismiss
Plaintiffs' complaint-a filing that largely retreads
ground tentatively resolved at the preliminary injunction
stage-and Plaintiffs' motion for class certification. For
the reasons explained below, the Court denies Defendants'
motion to dismiss and grants Plaintiffs' motion for class
Statutory and Regulatory Framework
immigration enforcement functions are carried out by DHS, in
which ICE is housed. See 6 U.S.C. §§ 111,
251, 291; 8 U.S.C. § 1103(a)(1). 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”).
See 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. §
in this case are three immigrant teenagers who were
previously held in ORR custody as unaccompanied alien
children. See 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 defined as:
All former unaccompanied alien children who are detained or
will be detained by ICE after being transferred by ORR
because they have turned 18 years of age and as to whom ICE
did not consider placement in the least restrictive setting
available, including alternative to detention programs, as
required by 8 U.S.C. § 1232(c)(2)(B).
Mot. for Class Certification & Supp. Points of L. &
Auth. ¶ 3 (“Pls.' Mot. for Class
Cert.”), ECF No. 6. This Court's Opinion at the
preliminary injunction stage of this litigation described the
circumstances that led Plaintiffs Garcia Ramirez and
Hernandez Alfaro to enter the United States as unaccompanied
alien children and detailed the events that led up to this
lawsuit. See Ramirez, 310 F.Supp.3d at 12-16. For
the sake of completeness, the Court recounts that history
here. The Court also provides background details about the
third named Plaintiff, Ana P., who joined this litigation
after the motion for preliminary injunction had been filed
and partly briefed. See Id. at 12 n.1 (noting that
the Court limited its consideration of Plaintiffs' motion
for preliminary injunction to Mr. Garcia Ramirez and Ms.
Hernandez Alfaro); see also Docket Sheet, Civ. A.
Wilmer Garcia Ramirez
to Plaintiffs' complaint, Wilmer Garcia Ramirez was born
into poverty in Guatemala in 1999. See First Am.
Compl. ¶¶ 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; Notice of Action, Ex. B, ECF No. 2-3. That
petition remained pending at the time that this lawsuit was
filed. 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 an SIJS petition.
See Email from Noriana C. Hermes (Sept. 22, 2017),
Ex. D at 7, 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), Ex. D at 9, 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, Ex. E, 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.
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 Hr'g, Ex. E
at 9-12, ECF No. 20-5. A bond hearing was scheduled.
See Notice of Custody Redetermination Hr'g 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
Hr'g, 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. During 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 remained detained at EDC
when this lawsuit was initiated in March 2018. See
First Am. Compl. ¶ 38.
Sulma Hernandez Alfaro
Hernandez Alfaro 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. See
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.
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 remained pending when this lawsuit was filed in
March 2018. See First Am. Compl. ¶ 48.
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 from Deportation Officer (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. See Email (Jan. 16, 2018),
Ex. B at 8, ECF No. 20-2; see also Decl. of Jose
Cortez (“Cortez Decl.”) ¶ 20, Ex. B, 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 10-11,
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
determine 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 at which she had lived 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”),
Ex. H at 2-4, ECF No. 2-9; Decl. of Rosemary Gonzalez
(“Gonzalez Decl.”) ¶ 7, Ex. B, ECF No. 23-2.
The letter mentioned the special statutory protections
afforded to 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 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), Ex. I, 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.
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.”) ¶¶ 6-7,
Ex. A, 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 child upon her arrival in the United
States, 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. See 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
remained detained at PIDC at the time that this suit was
filed in March 2018. See First Am. Compl. ¶ 14.
was born in 2000 in El Paraiso, a town in the department of
Sonsonate, El Salvador. See First Am. Compl. ¶
53. At age fifteen, she bore a child. See Id. ¶
55. Strained financially and in need of a job to support her
child, Ana secured employment in a neighboring town. See
Id. ¶ 57. On her way home from work one day, Ana
contends that she was stopped by two masked gang members, who
demanded money from her. Id. ¶ 58. After Ana
told them that she had no money to give, they purportedly
ordered her not to return to the area and threatened her with
death if she did so. See Id. Seeking to avoid the
violence in El Salvador, Ana and her child travelled by bus
to the United States in January 2018. See Id. ¶
60. After the pair entered the country at a port of entry,
U.S. Customs agents determined that both Ana and her child
were unaccompanied alien children. See Id. ¶
61. Both mother and child were transferred to ORR custody and
placed in a shelter in New York. See id.
to Ana, on her eighteenth birthday in February 2018, she was
told to report to a government office at 5 a.m. See
Id. ¶ 62. Officials told her not to bring her
child. See Id. When Ana arrived at the office, two
ICE officers arrested her and transferred her to the Bergen
County Jail. See Id. Ana contends that, at the time
that she joined this lawsuit in late March 2018, she had not
seen or talked to her child since her transfer to an adult
detention facility. See Id. ¶ 63.
the other two named Plaintiffs, Ana sought to change her
state of confinement. On March 15, 2018, she submitted a
request for release on humanitarian parole under 8 U.S.C.
§ 1182(d)(5). See Id. ¶ 66. That request
was pending when Ana joined this lawsuit. See Id.
Ana also identified a willing sponsor for her and her child:
friends of her child's father's family who live in
Texas and who Ana met in 2017. See Id. ¶ 65.
According to Plaintiffs' complaint, Ana had submitted the
necessary paperwork to ORR and preparations for her release
to the proposed sponsor had been underway when she turned
eighteen. See id.
supply a declaration from Supervisory Detention and
Deportation Officer Linda Hyde, who contends that she made
the custody determination for Ana P. when she was transferred
out of an ORR facility and into ICE custody. See
Decl. of Linda Hyde (“Hyde Decl.”) ¶ 1-2,
Ex. B, ECF No. 31-2. According to Officer Hyde, ORR contacted
her on the afternoon before Ana's eighteenth birthday,
stating that Ana would need to be transferred out of
ORR's care. See Id. ¶ 3. ORR informed
Officer Hyde that it had declined to release Ana and her
child to a proposed sponsor due to a host of concerns about
that potential placement. See Id. (listing concerns
about, among other things, the lack of a preexisting
relationship between Ana and the proposed sponsor and an
“observed pattern” of the potential sponsor
allowing former unaccompanied minors to leave his care after
they turned eighteen). In response to that communication,
Officer Hyde instructed ORR to “please go ahead, [and]
release” Ana and her child, if ORR had located a
different, suitable sponsor. See Id. ¶ 4;
see also Email from Linda Hyde (Feb. 16, 2018)
(“Hyde Email”) at 9, Ex. B, ECF No. 31-2. Officer
Hyde noted that if ORR had not located a viable sponsor, Ana
P. would be transferred to an adult detention facility and
the child would remain in ORR's care. See Hyde
Decl. ¶ 4; Hyde Email at 9.
to Officer Hyde, based on her review of initial
communications with and the facts provided by ORR, she
concluded that releasing Ana to the proposed sponsor was not
appropriate and, at that time, she was “unaware”
of any halfway house or shelter that might accept Ana. Hyde
Decl. ¶ 4. Given that Ana had no suitable fixed address
and no family connections in the United States, Officer Hyde
concluded that she posed a significant flight risk and that
she was not eligible to participate in alternative to
detention programs. Id. ¶ 5. Officer Hyde
states that she could not identify other appropriate, viable
measures that could alleviate Ana's risk of flight while
also ensuring her safety. Id. After considering that
Ana had no criminal record or history of violence and that
she did not appear to be a danger to herself or to others,
Officer Hyde concluded that Ana should be transferred to an
adult detention facility. Id. Given Ana's lack
of criminal history and the fact that she did not appear to
be dangerous, DHS housed her in the least restrictive
detention setting at Bergen County Jail. Id. ¶
Garcia Ramirez and Hernandez Alfaro filed this putative class
action in March 2018, contending that ICE had not complied
with 8 U.S.C. § 1232(c)(2)(B) in placing them and
asserting that ICE systematically fails to abide by this
statutory provision in placing former unaccompanied minors
who age out of ORR's jurisdiction. See generally
Compl., ECF No. 1. Shortly after, Mr. Garcia Ramirez and Ms.
Hernandez Alfaro asked this Court to enter a temporary
restraining order and preliminary injunction ordering ICE to
comply with the statutory provision. See Mot. Temp.
Restraining Ord. & 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 Ord. Mot. Hr'g (Mar. 8, 2018) at 37:1-9, ECF
No. 19. The Court noted that it would consider
Plaintiffs' motion for preliminary injunction-but only as
to the two named Plaintiffs rather than as to the entire
proposed class-after the parties had investigated and fully
briefed the request. See Tr. of Temp. Restraining
Ord. Mot. Hr'g (Mar. 8, 2018) at 37:11-19, ECF No. 19.
After the Government submitted its opposition to
Plaintiffs' request for injunctive relief, Plaintiffs
filed an amended complaint, which added Ana P. to this action
as a named Plaintiff. See Am. Compl., ECF No. 21.
April 18, 2018, this Court granted Plaintiffs Garcia Ramirez
and Hernandez Alfaro's motion for preliminary injunction.
See Ramirez v. ICE, 310 F.Supp.3d 7, 34 (D.D.C.
2018). In doing so, the Court first rejected Defendants'
arguments that several justiciability barriers precluded the
Court from granting the requested relief. See Id. at
17-25. Specifically, the Court disagreed with Defendants'
contentions that this lawsuit was moot at the time that it
was filed, that Plaintiffs had not identified a “final
agency action” subject to judicial review under the
Administrative Procedure Act, and that Plaintiffs had an
adequate alternative remedy in the form of bond hearings
through which they could seek relief for their purported
injuries. See Id. In assessing the merits of
Plaintiffs' request for preliminary injunction, the Court
found that Plaintiffs Garcia Ramirez and Hernandez Alfaro
were likely to succeed in showing that DHS had not complied
with 8 U.S.C. § 1232(c)(2)(B) in placing them, that
Plaintiffs had shown that they would suffer irreparable harm
in the absence of a preliminary injunction, and that both a
balancing of the equities and public interest considerations
favored Plaintiffs. See Id. at 25-34. The Court
ordered Defendants to comply with 8 U.S.C. §
1232(c)(2)(B) in placing Mr. Garcia Ramirez and Ms. Hernandez
Alfaro. Id. at 34. In addition, the Court required
Defendants to memorialize their assessments to allow the
Court to determine whether the agency had considered the
factors required by statute. See id.
2, 2018, Defendants responded to the Court's Order,
appending declarations from the ICE Officers charged with
considering the relevant statutory factors and with placing
Plaintiffs Garcia Ramirez and Hernandez Alfaro. See
Defs.' Resp. to the Court's Ord. of Apr. 18, 2018 to
Comply with 8 U.S.C. § 1232(c)(2)(B) with Regard to Two
Named Plaintiffs, ECF No. 30. The first declaration
memorialized the process of determining a placement for Ms.
Hernandez Alfaro. See Decl. Jose A. Cortez, Ex. A,
ECF No. 30-1. According to Officer Jose A. Cortez, ICE first
attempted to identify potential individual and organizational
sponsors who could provide a fixed, stable address and who
could financially support Ms. Hernandez Alfaro. See
Id. ¶ 3. ICE identified five such potential
sponsors, see Id. ¶¶ 5, 7, 9, 11, 13,
however, it concluded that none of the options were viable
sponsors for a host of reasons. See Id. ¶¶
6 (finding the first potential sponsor unviable due to
unavailability and the potential sponsor's own risk of
flight), 8 (finding the second potential sponsor
unavailable), 10 (finding that a third potential sponsor
could not be located), 12 (determining that a fourth
potential sponsor likely would not provide sufficient
oversight or accountability to reduce Plaintiff's risk of
absconding), 15-16 (finding a sixth potential sponsor
unviable due to her attenuated relationship with Plaintiff
and her inability to financially support Plaintiff).
According to Officer Cortez, ICE also considered enrolling
Ms. Hernandez Alfaro in an alternative-to-detention program.
See Id. ¶ 18. However, it determined that she
did not qualify for such a program because she lacked a
sponsor and a valid sponsor's residential address.
See Id. In Officer Cortez's declaration, he
described ICE's determinations regarding Ms. Hernandez
Alfaro's risk of flight, danger to self, and danger to
others. See Id. ¶¶ 19-23. According to
Officer Cortez, ICE regarded Ms. Hernandez Alfaro as a
significant flight risk because she lacked lawful immigration
status, had minimal family and community ties, failed to
provide a reliable fixed address in the United States, had no
prior residence in the United States, and entered the United
States without inspection by an immigration officer.
Id. ¶ 19. ICE did not regard Ms. Hernandez as a
danger to herself or to others. Id. ¶ 20.
on Officer Cortez's assessment, he concluded that Ms.
Hernandez Alfaro should remain in ICE custody. See
Id. ¶ 21. On April 25, 2018, after evaluating Ms.
Hernandez Alfaro based on federal detention standards, ICE
determined that she should remain classified as Level 1-Low
Custody and, accordingly, that she should continue to be
housed in the least restrictive housing unit available in an
adult detention facility. See Id. ¶ 25. Ms.
Hernandez Alfaro ultimately remained detained for only a
short time longer, though. See Id. ¶ 26. On
April 30, 2018, the United States Citizenship and Immigration
Service provided a copy to ICE of its decision granting Ms.
Hernandez Alfaro legal immigration status in the United
States. See Id. Because Ms. Hernandez Alfaro was no
longer subject to removal, she was released from ICE custody.
second declaration submitted by Defendants memorialized ICE
Officer Andrew Swierski's consideration of the statutory
factors outlined at 8 U.S.C. § 1232(c)(2)(B) and his
determination of a placement for Mr. Garcia Ramirez.
See Decl. of Andrew Swierski, Ex. B, ECF No. 30-2.
First, Officer Swierski explained that there was no evidence
to suggest that Mr. Garcia Ramirez-who has no known criminal
record and had no record of disciplinary infractions while in
ICE detention-would pose a danger to himself or to the
community. See Id. ¶ 7. Next, Officer Swierski
found that, because Mr. Garcia Ramirez had entered the United
States without proper documentation and had limited family
and community ties in the United States, he posed a risk of
flight. See Id. ¶ 8. In light of these
findings, Officer Swierski next considered Mr. Garcia Ramirez
for ICE's alternative-to-detention programs, which would
permit Mr. Garcia Ramirez to be released on his own
recognizance subject to certain conditions. See Id.
to his declaration, Officer Swierski considered a handful of
possible release conditions. See Id. ¶ 10.
First, he considered releasing Mr. Garcia Ramirez subject
only to periodic reporting. See Id. Officer Swierski
rejected this possibility, however, because Mr. Garcia
Ramirez had no significant community or family ties, no place
of employment in the United States, and had not lived in the
United States for a long period of time. See Id. The
officer reasoned that periodic reporting would not
sufficiently mitigate Mr. Garcia Ramirez's risk of
flight. See Id. Next, Officer Swierski considered
releasing Mr. Garcia Ramirez with both periodic reporting and
ankle monitoring conditions. See Id. ¶ 11.
Officer Swierski regarded this option as the least
restrictive placement available for Mr. Garcia Ramirez, and
concluded that the combination of these two conditions would
adequately alleviate Mr. Garcia Ramirez's risk of flight.
See Id. Officer Swierski then considered additional
placement options: release to an organizational sponsor or
supervised group home and release on bond. See Id.
¶¶ 12-13. Officer Swierski rejected these options,
though, because he did not know of a viable organization or
group home to which to release Mr. Garcia Ramirez and because
he reasoned that, compared with the viable option of release
subject to reporting and ankle monitoring, release under bond
would be more restrictive. See Id. In light of
Officer Swierski's analysis, on April 27, 2018, DHS
released Mr. Garcia Ramirez on his own recognizance subject
to ankle monitoring and periodic reporting. See Id.
to the Court's order, Ana P.'s status has also
changed since the Court granted Plaintiffs' motion for
preliminary injunction. See Pls.' Reply Supp.
Mot. for Class Cert. at 7, ECF No. 37; Letter from Thomas
Decker to Ana P. (May 11, 2018) (“Decker
Letter”), Ex. 1, ECF No. 37-2. On May 11, 2018, Ana P.
was granted humanitarian parole and released from detention
pending the outcome of her immigration proceedings.
See Decker Letter.
before the Court are Defendants' motion to dismiss
Plaintiffs' complaint and Plaintiffs' motion for
class certification. See Defs.' Mot. to Dismiss
Pls.' Am. Compl. (“Defs.' Mot. to
Dismiss”), ECF No. 36; Pls.' Mot. for Class Cert.,
ECF No. 6. Both motions are ripe for the Court's
putative class action, 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 placements in
violation of 8 U.S.C. § 1232(c)(2)(B). They also contend
that DHS routinely and systematically fails to abide by this
statutory provision. Presently before the Court are
Defendants' motion to dismiss and Plaintiffs' motion
for class certification. For the reasons explained below, the
Court denies Defendants' motion to dismiss and grants
Plaintiffs' motion for class certification.
Defendants' Motion to Dismiss
Court first considers Defendants' motion to dismiss
Plaintiffs' complaint, which argues that (1) Plaintiffs
lack standing to bring their claims, (2) Plaintiffs'
claims are moot, (3) Plaintiffs may not properly bring their
claims under the Administrative Procedure Act, and (4)
Plaintiffs have failed to state any claims upon which relief
may be granted. Disagreeing on all fronts, this Court denies
Defendants' motion to dismiss.
Federal Rules of Civil ...