On February 16, 2018, a minor child detained by the Office of Refugee Resettlement (ORR) filed this putative class-action lawsuit in the U.S. District Court for the Southern District of New York. The plaintiff sued ORR under the Trafficking Victims Protection Reauthorization Act of 2008, the Administrative Procedure Act, the Declaratory Judgement Act, and petitioned for writs of habeas corpus and mandamus. The plaintiff, an immigrant represented by the New York Civil Liberties Union, alleged that federal officers had removed minor children from their parents in violation of due process, and that ORR had held children in “highly restrictive government-controlled facilities” indefinitely and with no explanation. Specifically, the named plaintiff in this case had been arrested for gang involvement. After a judge dismissed the claim, the plaintiff was moved to a facility reserved for children who do not present a danger, with no date for release despite having no disciplinary issues. The plaintiff also received no explanation for the extended detention.

On May 9, 2018, the plaintiff moved for preliminary injunctive relief in the form of: (1) vacatur of the Director Review Policy, a new ORR policy that imposed procedural barriers to the release of children from detention; and (2) an order directing ORR to take all reasonable measures to expedite the processing of reunification requests. Meanwhile, the defendants moved to dismiss on May 15.

Judge Paul A. Crotty issued an opinion and order on June 27, 2018 denying the defendants' motion to dismiss and vacating the Director Review Policy but declining to order ORR to expedite the reunification process. In denying the defendants' motion to dismiss, Judge Crotty noted that the plaintiffs had pleaded plausible statutory and constitutional violations and had adequately demonstrated irreparable injury and likelihood of success on numerous claims. In the order, Judge Crotty addressed evidence before the court that indicated that the Director Review Policy was instituted within hours of Lloyd’s appointment as the director of ORR, based on unidentified news reports about criminal activities involving immigrant minors. He noted that expedited discovery had not yielded any records showing a consideration of relevant law, agency documents, or the impact on unaccompanied undocumented children. Judge Crotty noted that this “unlawful agency behavior” was at the “zenith of impermissible agency actions” and that “the Court cannot turn a blind eye to Plaintiff’s suffering and irreparable injury.” As part of the same order, Judge Crotty certified a class defined as “[a]ll 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.” 318 F. Supp. 3d 601.

On November 5, 2018, the defendants informed the court that they conceded the illegality of the Director Review Policy while preserving the right to appeal pure legal issues and based on this concession moved for a protective order barring further discovery. Judge Crotty rejected this argument, noting that the Director Review Policy was not the only legal issue common to the class, that the certified class continued to have common legal claims against the defendants, and that the prolonged detention of minor children continued.

The parties proceeded to engage in discovery, which (except for a brief stay caused by the government shutdown in December 2018 and January 2019) continued into the summer of 2019.

The case is ongoing.

Tiffany Chung - 10/06/2019


compress summary