L.V.M. v. Lloyd

          OPINION & ORDER

          HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE:

         This is a lawsuit about how the U.S. Government treats unaccompanied alien children ("UAC").^[1] 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 2008. .

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).^[2]

         The 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.

         This 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.^[3]

         To be 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.

         Plaintiffs 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.

         For the 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 DENIED-IN-PART.

         Not 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 long.

         The 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 Court.

         Well Pleaded Allegations Concerning Custody and Processing of Immigrant Children

         Every 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.^[4] Compl. ¶17.

         Since 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.

         ORR has 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.

         UAC can 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.

         Prior 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.

         Plaintiffs 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^[5]), 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. ¶36.^[6]

         The 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 irf.¶¶41-46.

         Well Pleaded Allegations Pertaining to Lead Plaintiff L.V.M.

         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.

         DISCUSSION

         Defendants 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 5^th Amendment. ECF 61.

         Plaintiffs 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.

         For the 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 denied-in-part.

         I. Motion to Dismiss

         A. Legal Standard

         "To 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).

         B. Discussion

         Plaintiffs 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 5^thAmendment. 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 5^th Amendment. The motion to dismiss is denied.

         i. Challenged Administrative Actions are Reviewable

         "The 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 (1986).

         1. Challenged Administrative Actions Are Final Agency Actions

         There 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.^[7] Bennett, 520 U.S. at 175.

         2. ORR 's ...