United States District Court, S.D. New York
L.V.M., a minor, by and through his next friend EDITH ESMERALDA MEJIA DE GALINDO, on his own behalf and on behalf of others similarly situated, Plaintiffs / Petitioners,
SCOTT LLOYD, Director, Office of Refugee Resettlement; JONATHAN WHITE, Deputy Director, Office of Refugee Resettlement; STEVEN WAGNER, Acting Assistant Secretary for the Administration for Children and Families, U.S. Department of Health and Human Services; ALEX AZAR, Secretary, U.S. Department of Health and Human Services; ELCY VALDEZ, Federal Field Specialist, Office of Refugee Resettlement; JEREMY KOHOMBAN, President and Chief Executive Officer, Children's Village, Defendants / Respondents.
OPINION & ORDER
HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE:
a lawsuit about how the U.S. Government treats unaccompanied
alien children ("UAC"). Generally, when UAC are
apprehended by an agency of the Federal Government, such as
Immigration and Customs Enforcement ("ICE"), the
agency must transfer custody of the UAC to the U.S.
Department of Health and Human Services, Office of Refugee
Resettlement ("ORR") within 72 hours. 6 U.S.C.
§ 279(a); 8 U.S.C. § 1232(b)(3). ORR is then
responsible for the care and custody of the UAC, until they
are reunited with a family member or placed with other
individuals or entities, while removal proceedings go forward
in immigration courts. When UAC come into ORR's custody,
ORR places UAC into one of three types of state licensed,
ORR-funded, caretaker facilities: (1) secure facility; (2)
staff-secure facility; and (3) shelter care facility. A
secure facility has the most restrictive custodial condition
and it is in many ways akin to juvenile jails; a staff-secure
facility is less restrictive than a secure facility, but
movement within it is substantially controlled; and a shelter
care facility is the least restrictive custodial setting.
These facilities are supposed to provide UAC with housing,
education, health, and case management services. The ORR
website explains its role as follows:
"On March 1, 2003, the Homeland Security Act of 2002,
Section 462, transferred responsibilities for the care and
placement of unaccompanied alien children from the
Commissioner of the Immigration and Naturalization Service to
the Director of the Office of Refugee Resettlement (ORR).
Since then, ORR has cared for more than 175, 000 children,
incorporating child welfare values as well as the principles
and provisions established by the Flores Agreement in 1997,
the Trafficking Victims Protection Act of 2000 and its
reauthorization acts, the William Wilberforce Trafficking
Victims Protection Reauthorization Act (TVPRA) of 2005 and
Unaccompanied alien children apprehended by the Department of
Homeland Security (DHS) immigration officials are transferred
to the care and custody of ORR. ORR promptly places an
unaccompanied child in the least restrictive setting that is
in the best interests of the child, taking into consideration
danger to self, danger to the community, and risk of flight.
ORR takes into consideration the unique nature of each
child's situation and incorporates child welfare
principles when making placement, clinical, case management,
and release decisions that are in the best interest of the
child." (Emphases added).
Trafficking Victims Protection Reauthorization Act of 2008
("TVPRA") mandates that ORR "promptly"
place UAC "in the least restrictive setting that is in
the best interests of the child." 8 U.S.C. §
1232(c)(2)(A). Prompt placement of the child is critical to
minimize the deleterious impact (anxiety, depression, and/or
cognitive change) of detention. There is no dispute that the
longer the detention, the greater the impact.
lawsuit challenges the ORR's newly revised process for
placing UAC in the most appropriate setting at the earliest
possible opportunity. In mid-2017, the then-newly appointed
director of ORR, Scott Lloyd, added a director review step to
the UAC release process, requiring his personal approval of
release decisions involving UAC who are housed in a
staff-secure facility or have ever been housed in a
staff-secure or secure facility. Plaintiffs claim that the
director review step adds unjustifiable delays to the UAC
release process and violates the Administrative Procedure Act
("APA"), TVPRA, and Due Process Clause of the Fifth
Amendment. Lead Plaintiff L.V.M., who is an UAC, brings this
action on behalf of himself and those similarly situated
against Scott Lloyd, Jonathan White, Steven Wagner, Alex
Azar, and Ely Valdez ("Defendants") who are federal
officers and employees of ORR, seeking injunctive relief and
declaratory judgment, as well as habeas relief.
clear, this lawsuit does not deal with the Department of
Homeland Security's new policy of separating children
from their undocumented parents at the border. Nor does it
deal with ORR's apparent loss of contact with 1, 500 UAC
under its supervision. Nor the alleged routine and forcible
administration of a range of psychotropic drugs at an
ORR-funded facility. Nor the ORR's alleged practice of
detaining and transporting UAC to detention facilities
without notifying their parents or lawyers. Nor the ORR's
alleged employment of a psychiatrist that has treated
children without board certification for nearly a decade.
Rather, this lawsuit challenges only the ORR's process
for promptly placing UAC in the most appropriate setting.
move for class certification and a preliminary injunction;
Defendants move to dismiss. With this Court's leave, the
parties completed expedited discovery. On June 7, 2018, the
Court heard oral argument on each of the motions.
reasons set forth below, the Defendants' motion to
dismiss is DENIED; the Plaintiffs'
motion for class certification is GRANTED;
and the Plaintiffs' motion for a preliminary injunction
is GRANTED-IN-PART and
only have Plaintiffs pleaded plausible statutory and
constitutional violations, but they have also adequately
demonstrated irreparable injury and the likelihood of success
on numerous claims. For example, the APA guards against
agency actions instituted based on personal preference of
decisionmakers. According to evidence before the Court,
Lloyd's director review policy was instituted within
hours of Lloyd's appointment as the director of ORR, with
no record demonstrating the need for a change. Apparently,
the change was based on unidentified news reports about
criminal activities involving immigrant minors. Expedited
discovery has not yielded any record showing a consideration
of relevant law, agency documents, or the impact on UAC. This
is at the zenith of impermissible agency actions. This
unlawful agency action keeps Plaintiffs-the very subjects
that ORR is statutorily mandated to protect-from reuniting
with their sponsors for at the very least 35 more days (and
likely more than that) in a process which already takes too
Court cannot turn a blind eye to Plaintiffs' suffering
and irreparable injury. The Court hereby directs ORR to
vacate the director review policy, until further order of the
Pleaded Allegations Concerning Custody and Processing of
year, foreign or alien children come to the United States,
some with parents, some with relatives, some with friends,
and some, alone. A great number of these children have no
legal right to enter. Compl. ¶16. In the 80's and
90's, the government locked up these undocumented
children in jail facilities across the country. Id.
There have been numerous legal challenges to these practices.
More than two decades ago, the Supreme Court held that UAC do
not have a fundamental right to be placed in the custody of a
willing and able private custodian. Reno v. Flores,
507 U.S. 292 (1993). Nonetheless, the litigating parties
continued negotiations, which ended with a 1997 consent
decree (also referred to as the Flores settlement)
setting standards for the detention, release, and treatment
of UAC. The Flores settlement mandates that UAC be
released "without unnecessary delay" and provides
that the Government must engage in "prompt and
continuous efforts" towards family
reunification. Compl. ¶17.
then, Congress has passed two statutes addressing the care
and custody of UAC. In 2002, Congress enacted the Homeland
Security Act ("HSA"), which transferred authority
over the care and placement of UAC to ORR. The ORR's
mission is to incorporate child welfare values into the care
and placement of UAC, Id. ¶18. In 2008,
Congress enacted the TVPRA, which grants legal protections to
UAC in ORR's custody and directs ORR to (1) promptly
place UAC, (2) in the least restrictive setting that (3) is
in the best interest of the child. Id. ¶19.
never promulgated any regulations under the TVPRA, but it has
developed an internal guide (which was posted online in 2015)
setting forth agency procedures for UAC placement and
release. Id. ¶¶20-21. The guide governs
more than 7, 000 children in ORR's custody, approximately
1, 200 of whom are located in New York. Id.
¶22. According to the guide, when a child comes into
ORR's custody, ORR places the child into one of three
types of facilities: (1) secure facility; (2) staff-secure
facility; (3) shelter care facility. Id. ¶23.
ORR places UAC in secure or staff-secure facilities for a
variety of reasons including, for example, disruptive
behaviors, escape risks, or any behaviors which raise safety
concerns. Id. ¶24.
move up from a shelter care facility to a staff-secure or
secure facility; and down from a secure facility to a
staff-secure or shelter care facility. Most UAC, however, are
released to family members and others (also known as
sponsors) who are qualified to care for them. Id.
¶25. Further, ORR places in a long-term foster-care
program UAC who have demonstrated safe behavior in a
non-secure setting, but have no sponsor. Id.
¶¶ 24, 25. The release of UAC is recommended to an
ORR Federal Field Specialist ("FFS") by an ORR care
provider, after consultation with a nongovernmental
third-party reviewer. FFS can approve, reject, or seek more
data. Id. ¶26.
to the January 20, 2017 change in administration, the release
decisions were made expeditiously. UAC in staff-secure
facilities (e.g., Children's Village) were
released to a sponsor in about 30 to 90 days; and for UAC in
shelter care facilities, within 34 days. Id.
¶26. Since the change in administration, however, the
release of children in a secure or staff-secure facility no
longer takes 90 days; it now takes seven to eight months on
average. Id. ¶35.
claim that this unconscionable delay results, in part, from a
new review policy instituted by the then-newly appointed
Director of ORR, Scott Lloyd. Upon taking office, Lloyd
instituted a director review policy (reflected in the June
12, 2017 revision to the online ORR guide), under which any
UAC who has ever been held in a secure or staff-secure
facility cannot be released, unless the release is personally
approved by Lloyd or his designee. Id. ¶34.
Lloyd does not disclose what standards he follows; nor does
he describe how he makes his decisions. Under a policy of his
own making, Lloyd has unfettered discretion to approve, deny,
or request additional information, unguided by any rule or
fixed set of criteria, giving him unrestricted power to rule
over the fate of vulnerable children. Id.
director review policy allegedly has substantially increased
the time for reunification of UAC with their family, or
placement in foster care. Id. ¶34. The actual
review by Lloyd is not the only source of delay; the director
level policy also requires FFS to prepare the review package
for Lloyd, which adds further delay to the release process.
Id. ¶37. UAC understandably suffer substantial
harm from the director review policy; the prolonged period of
detention causes depression, deterioration in mental health,
as well as behavioral problems. Id. ¶39. But
ORR has yet to provide any substantive explanation or
justification for the new policy. See
Pleaded Allegations Pertaining to Lead Plaintiff L.V.M.
is a 17-year-old from El Salvador who came to the United
States with his mother seeking asylum. Id. ¶47.
They lived together on Long Island where L.V.M. attended high
school. In 2017, ICE arrested him on report that he made a
"gang" sign during a scuffle at school. He was
removed from his home and sent to a secure facility in
Virginia, Id. ¶¶50-54. He was held there
for six weeks (July 7, 2017 to August 8, 2017), and then
transferred to a staff-secure facility, Children's
Village. He was held in the ORR's custody for more than
seven months, and was not released until after the filing of
this action. Id. ¶56.
move to dismiss the complaint contending that Plaintiffs have
failed to state a claim: (1) Defendants' actions are not
reviewable by this Court; and (2) even if they were, they do
not violate the APA, TVPRA, and Due Process Clause of the
5th Amendment. ECF 61.
move for certification of a class comprising those who are or
will be subject to the director review policy: "all
children who are or will be in the custody of ORR in New York
State and who are currently housed in a staff-secure facility
or have ever been housed in a staff-secure or secure
facility." ECF 2. Plaintiffs also move for a preliminary
injunction, requesting vacatur of the director review policy
and an order requiring ORR to promptly complete the release
process for all class members. ECF 41.
reasons set forth below, the motion to dismiss is denied; the
motion for class certification is granted; and the motion for
a preliminary injunction is granted-in-part and
Motion to Dismiss
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. When considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), the Court
"must accept as true all of the factual allegations
contained in the complaint," and construe the complaint
in the light most favorable to the plaintiff. Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 572 (2007).
claim that the ORR's director review policy, which causes
systemic, unjustified delays in the UAC release process,
violates the APA, TVPRA, and Due Process Clause of the
5thAmendment. Defendants move to dismiss, claiming
that: (1) the newly adopted director review process is not
judicially reviewable; and (2) in any event, the director
review process does not violate the APA, TVPRA, and Due
Process Clause of the 5th Amendment. The motion to
dismiss is denied.
Challenged Administrative Actions are Reviewable
APA, by its terms, provides a right to judicial review of all
'final agency action for which there is no other adequate
remedy in a court,' ... and applies universally
'except to the extent that-(1) statutes preclude judicial
review; or (2) agency action is committed to agency
discretion by law'". Bennett v. Spear, 520
U.S. 154, 175 (1997). Notwithstanding the limited exceptions,
there is a strong presumption "that Congress intends
judicial review of administrative action." Bowen v.
Mich. Academy of Family Physicians, 416 U.S. 667, 670
Challenged Administrative Actions Are Final Agency
is no doubt that the challenged administrative actions are
final: whatever may be said about how Lloyd conducted (or did
not conduct) any review of ORR's release process, what
issues were considered, and how those issues were resolved,
that decisionmaking process is now complete and the result of
that process-the UAC release procedure and the director
review policy-is "one that will directly affect"
ORR staff and Plaintiffs. Lunney v. United States,
319 F.3d 550, 554 (2d Cir. 2003). The release procedure and
the director review policy indisputably define the rights or
obligations of ORR staff and Plaintiffs; and legal
consequences flow from them. For example, the director review
policy requires that: (1) the ORR's FFS prepare a
director review package for Lloyd's review; (2) Lloyd or
his designee review FFS's release recommendations; and
(3) Plaintiffs wait for Lloyd's approval before release.
Compl. ¶¶34-38. Such agency actions are final and
presumptively reviewable. Bennett, 520 U.S. at 175.
ORR 's ...