This case, filed on June 22, 2017, was brought by a parent on behalf of her minor child for wrongful incarceration by U.S. Immigration and Customs Enforcement (ICE). The complaint alleged that the minor, A.H., was released into the plaintiff's custody but that a few years later, ICE arrested and detained him without cause. Represented by the ACLU of Northern California, the ACLU Immigrants' Rights Project, and the private law firm Cooley LLP, the plaintiff argued that the government violated the First and Fifth Amendments, the Immigration and Nationality Act (INA), the Trafficking Victims Protection Reauthorization Act (TVPRA), and the Flores Agreement. The case was filed as a petition for writ of habeas corpus as well as a complaint for injunctive and declaratory relief in the U.S. District Court for the Northern District of California.

The complaint alleged that the minor, A.H., entered the United States as an unaccompanied minor in 2015 after leaving Honduras to escape his abusive father. Shortly thereafter, the Office of Refugee Resettlement (ORR) released A.H. into the plaintiff's custody, and the two resided in New York State. The complaint stated that A.H. was eligible to receive Special Immigrant Juvenile (SIJ) status, making it possible for him to receive U.S. citizenship. However, on June 12, 2017, the plaintiff alleged that ICE agents "arrested A.H. outside his home, refused his repeated requests to contact his attorney, and interrogated him without counsel present." The next day, without notice to the plaintiff or A.H.'s attorney, two federal agents took A.H. to a secure juvenile facility in northern California. The complaint argued that the detention would prevent A.H. from attending scheduled hearings in New York regarding his immigration status, which in turn would prevent him from getting SIJ status and eventually citizenship.

The case was assigned to Judge Vince Chhabria on June 23.

The plaintiff moved for a temporary restraining order on June 23, which Judge Chhabria granted and denied in part on June 29. The ruling was made from the bench, and there is no written memorandum accompanying it.

The plaintiff then filed an amended complaint on Aug. 11, 2017. The new class action complaint added two additional named plaintiffs with children in similar situations as A.H., and alleged that all had been detained on the basis of unsubstantiated gang affiliation charges. The minors, the complaint argued, were profiled as gang members on the basis of the neighborhoods they lived in. The complaint also sought to certify a class consisting of "all unaccompanied immigrant children . . . who had previously been detained in ORR custody and released by ORR to a parent or other sponsor, and who thereafter have been or will be arrested by U.S. immigration authorities on or after April 1, 2017 with allegations of gang affiliation and detained in a secure or staff secure detention center under the oversight authority of the San Francisco-based ORR Federal Field Specialist."

The defendants moved to dismiss the case on Sept. 14, while the plaintiffs moved for a preliminary injunction on Sept. 25. On Nov. 20, Judge Chhabria granted a preliminary injunction and provisionally certified the class. 2017 WL 5569838. Judge Chhabria stated that "there is no reason to deny these minors protections that noncitizens typically get after having been released on bond or parole. . . . . By shipping the minors across the country for indefinite detention in a high-security facility before providing that hearing, the government has violated their due process rights."

To ensure the government would comply with the plaintiffs' due process rights, Judge Chhabria ordered the government to (1) provide the minors with an immigration hearing by Nov. 29, 2017 so that they could contest the government's evidence of changed circumstances, (2) restore the sponsors' custody of the minors in the absence of such evidence, and (3) provide such a hearing within a week of similar arrests going forward while the lawsuit proceeded.

For the purposes of the preliminary injunction only, Judge Chhabria certified the following class: "(1) the noncitizen came to the country as an unaccompanied minor; (2) the noncitizen was previously detained in ORR custody and then released by ORR to a sponsor; (3) the noncitizen has been or will be rearrested by DHS on the basis of a removability warrant on or after April 1, 2017 on allegations of gang affiliation."

Finally, Judge Chhabria dismissed two of the non-federal defendants, dismissed claims brought by two of the individual plaintiffs, and denied the federal defendants' motion to dismiss regarding the due process claim.

On Nov. 27, Judge Chhabria granted in part the plaintiffs' emergency application for relief, requiring the defendants to notify the plaintiffs of their upcoming hearings, to grant brief extensions to prepare or secure counsel, to inform counsel of plaintiffs' locations, to release any detained plaintiffs who already had hearings and were found not to be dangers or flight risks, and to hold hearings in the jurisdiction of the plaintiff's home or arrest.

Judge Chhabria then, on Dec. 12, granted A.H.'s emergency application for release. Judge Chhabria reiterated that, despite ORR's finding that A.H. was not a danger and could be placed with his mother, the defendants had rearrested him and detained him anyway with no prompt hearing, violating his procedural due process rights. A.H. had now had a Dec. 6 hearing at which the Immigration Judge ruled he was not a danger or flight risk. Thus, Judge Chhabria ordered his release.

The government appealed the preliminary injunction order on Jan. 19, 2018 to the Ninth Circuit, which opened a new docket (No. 18-15114). On Feb. 14, the District Court stayed the case pending appeal. On Feb. 16, the defendants filed their opening appellate brief. They argued that the District Court erred in ruling that the government denied A.H. due process in his arrest and detention. Specifically, the defendants argued that existing procedures guaranteed due process, that the District Court lacked the authority to create new procedures, and that the injunction overburdened the government. The plaintiffs responded on Mar. 16 and the government replied on Apr. 6. The Ninth Circuit will hold oral argument on July 13.

In the District Court on Mar. 1, the plaintiffs moved to lift the stay, and the defendants opposed this. On Mar. 15, Judge Chhabria noted that the defendants had failed to address the plaintiffs' allegation that class members were being denied immigration benefits based on the same allegations of gang activity rejected by Immigration Judges -- which would be a reason to lift the stay. Judge Chhabria ordered further briefing from the parties, which they submitted in March. On Apr. 9, he denied the plaintiffs' motion to lift the stay, without prejudice if the plaintiffs could prove the defendants were obstructing them from seeking and obtaining immigration benefits on the basis of the affiliations of gang membership.

On Oct. 1, 2018, the Ninth Circuit affirmed the preliminary injunction, holding that the injunction did not conflict with the TVPRA, that existing procedures do not adequately protect minors from being erroneously taken away from their parents, and that the Flores bond hearings were not sufficient to protect class members' TVPRA rights. (2018 WL 4689978) Specifically, the panel found that there was no conflict between the injunction and the TVPRA because the injunction does not prevent the government from releasing minors to ORR custody as required by the TVPRA, and because the injunction orders minors to be released back to their previous sponsors, which is not at odd with the TVPRA's requirement that ORR place unaccompanied children in the least restrictive setting. Further, the panel held existing procedures to be inadequate because the ORR review process did not provide juveniles with notice of their reason for incarceration or a chance to respond to charges, and Flores hearings were not designed to account for child placement after initial determinations of detention or release were made.

The plaintiffs filed an amended complaint on Nov. 15, 2018.

On Dec. 3, 2018, the court clarified the class definition in the preliminary injunction, concluding it was "not limited to minors who are taken into DHS custody solely on allegations of gang affiliation (and who otherwise meet the class definition), but rather includes those minors taken into custody based partly on allegations of gang affiliation." The court also expressly limited the class to preclude "any minors who otherwise meet[] the class definition and for whom DHS happens to have information about gang affiliation when he is taken into custody."

The case is ongoing in both the district and circuit courts.

Virginia Weeks - 01/21/2018
Ava Morgenstern - 05/05/2018
Virginia Weeks - 12/04/2018


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