COVID-19 summary: This is a pre-existing class action about non-citizen kids in HHS Office of Refugee Resettlement (ORR) custody. Plaintiffs are seeking emergency releases of nearly all such children, in light of the grave risk of infection in congregate settings. No action on the emergency order has yet taken place.
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This class action suit, filed on June 29, 2018, sought to enjoin the Office of Refugee Resettlement (ORR) and the U.S. Department of Health and Human Services (HHS), of which ORR is a component part, from causing grave harm to migrant and asylum-seeking children in its care. 2018 WL 3209193. The plaintiffs--represented by the Center for Human Rights & Constitutional Law, National Center for Youth Law, the Immigration Law Clinic at the UC Davis Law School, and private counsel--were members of the class protected under the consent decree issued in Flores v. Sessions (“Flores Settlement”), available here in this Clearinghouse. The plaintiffs alleged violations of that Settlement, the Immigration and Nationality Act (INA) 8 U.S.C. §§ 1101, William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA) 18 U.S.C. § 1589, the Administrative Procedure Act (APA) 5 U.S.C. § 703, as well as the Fifth Amendment’s Due Process Clause and First Amendment’s Freedom of Association Clause. They sued the Secretary of HHS and the Director of ORR under 28 U.S.C. §§ 1331, 2241, the APA, Bivens, the TVPRA, and the rights conferred to the plaintiffs in the Flores Settlement. They sought injunctive and declaratory relief, a writ of habeas corpus for their release from ORR custody, nominal damages, and attorneys’ fees. The case was filed in the U.S. District Court for the Central District of California and assigned to Judge Dolly Maizie Gee.

The named plaintiffs are several children in ORR custody (in facilities in Texas, California, New York, and Michigan) and two nonprofit organizations, the San Fernando Valley Refugee Children Center, Inc. and the Unaccompanied Central American Refugee Empowerment. The plaintiffs alleged that ORR confines unaccompanied alien children in residential treatment centers (RTCs) without a meaningful opportunity to challenge allegations that they are dangerous or pose a flight risk or that their parents or other custodians are unfit to care for them. The complaint also states that the children are detained in conditions where they are administered psychotropic medication for weeks, months, or longer without parental consent or any other procedural safeguards. Several children were reportedly prescribed medications that increase suicidality, intentional self harm, pain, nausea, insomnia, and other symptoms in children. One of the children alleged they were assaulted by staff on multiple occasions, including with pepper spray, but that no disciplinary action was taken.

The class included all children in ORR custody (a) whom ORR refused to release to their parents or other available custodians who completed family reunification packets but are allegedly unfit, (b) who have been or will be in an RTC or other facility for more than 30 days without notice and an opportunity to be heard regarding release, (c) who have been or will be administered psychotropic medication without procedural safeguards (e.g., parental consent), and (d) who are natives of non-contiguous countries and to whom ORR blocks legal assistance in matters related to their custody, medication, and release.

On July 9, 2018, Judge Gee granted the plaintiffs leave to use pseudonyms for the named plaintiffs and their next friends (i.e., family members, custodians, or sponsors), who sued on their behalf, and ordered the parties to use these pseudonyms in all documents filed with the court. The court subsequently granted leave to both parties to file documents under seal in order to protect the identities of the minors.

On August 2, 2018, the plaintiffs moved to certify the class. On August 3, 2018, one named plaintiff detained in a southern Texas facility, moved for a preliminary injunction for his release from ORR custody “without unnecessary delay” as provided by the Flores Settlement and the TVPRA. On August 17, 2018, another named plaintiff detained in a southern Texas facility, similarly moved for a preliminary injunction for her release.

On August 17, 2018, the defendants filed a motion to dismiss for improper venue and for failure to state a claim for which the court can grant relief. The defendants argued that this lawsuit was duplicative of the Flores litigation, and claimed that the plaintiffs were trying to rewrite or re-bargain that settlement by bringing this case.

On September 6 and 10, 2018, the court denied both preliminary injunction motions for lack of jurisdiction. In both cases, the court found that the cited sections of the Flores Settlement and the APA did not authorize the court to order the release of the minors. The motions were dismissed without prejudice, indicating that they could refile in the U.S. District Court for the Southern District of Texas against the ORR Field Specialists in Texas responsible for the minors’ care. Judge McGee found that habeas matters would be properly venued before those specialists in that court if the plaintiffs were to refile.

On September 7, 2018, the plaintiffs filed their first amended complaint, which included two more named plaintiffs and additional detail concerning the original complaint's named plaintiffs’ mental health, including hospitalization due to their extreme distress at not being released to their families. It also described fundraising and other community efforts made in preparation of the children’s release.

On September 10, 2018, Judge Gee denied the defendants’ motion to dismiss as moot because the plaintiff’s amended complaint was treated as superseding the first. In the same order, she denied the plaintiff’s motion for class certification. Judge Gee reasoned that it would be more efficient to decide on that motion at a later date, because it was anticipated that the defendants would again move to have the case dismissed.

On September 18, 2018, the defendants again moved to have the complaint dismissed for improper venue and failure to state claim. On September 28, 2018, the defendants supplemented their motion to dismiss, requesting that the case be transferred to the U.S. District Court for the District of Columbia if it were not dismissed.

Also on September 28, 2018, the plaintiffs again moved to certify the class. This class definition’s first four elements were the same as those in their August motion for class certification; the new motion added one more element, narrowing the class to include only children who have or will have a behavioral, mental health, or intellectual and/or developmental disability and who are placed in an ORR facility because of that disability.

On November 2, 2018, Judge Gee issued an order granting in part and denying in part the defendants' motion to dismiss and granting the plaintiffs' motion for class certification. The defendants' motion to dismiss was granted only with regard to the plaintiffs' claims to enforce the Flores Agreement, but was denied in all other respects, including the plaintiffs' claims that "ORR failed to provide sufficient procedural safeguards for alien minors to exercise their Flores rights." In the order granting the plaintiffs' motion for class certification, Judge Gee granted each of the proposed classes but slightly re-wrote the definitions of some classes.

On November 16, 2018, the defendants filed a motion for reconsideration of the court's November 2 order, asserting that in re-writing the definitions of the "legal representation class" and the "disability class," the court failed to consider material facts and denied defendants the opportunity to address the newly created class. On December 27, 2018, Judge Gee issued an order granting in part and denying in part the defendants' motion for reconsideration and simultaneously issued an amended version of the November 2 order. The amended order made a slight change to the "disability class" to reflect the defendants' concern with the class.

On March 2, 2019, defendant E. Scott Lloyd -- the former Director of ORR who was also sued in his individual capacity under Bivens -- filed a motion to dismiss the plaintiffs' complaint and action against him for lack of personal jurisdiction and a motion for judgment on the pleadings. The defendant asserted that the complaint did not establish that the court had personal jurisdiction over him, failed to give notice of the claims against him, failed to state a claim upon which relief can be granted against him, and failed to defeat his qualified immunity.

On April 23, 2019, following the parties' stipulation for mediation, Judge Gee issued an order referring the matter to Magistrate Judge Sheri Pym for mediation proceedings. Over the next several months, the parties underwent the discovery process and conferred to attempt to reach a settlement.

On August 21, 2019, Judge Gee issued an order granting E. Scott Lloyd's motion for judgment on the pleadings, concluding that the plaintiffs' Bivens claim against him was not "supported by a cognizable legal theory" and because "special factors counsel against recognizing such a remedy in this context." As such, the individual defendant in his individual capacity was dismissed.

On March 25, 2020, in light of the nationwide outbreak of COVID-19, the plaintiffs filed an ex parte application for a temporary restraining order (TRO) and for issuance of an order to show cause why a preliminary injunction should not issue. The plaintiffs requested that the court issue an order "requiring ORR to release children it has already detained for 30 days to ready custodians, transfer them to non-congregate settings, or else justify why it has done neither." At the time the application was filed, there were a reported 46,481 cases in the U.S. and 593 deaths and several staff members at ORR facilities had tested positive for COVID-19. No cure or vaccine existed at the time of filing so social distancing and frequent hand washing were the only effective measures to prevent the transmission of COVID-19. The plaintiffs contended that the "vast majority of children in ORR custody live in congregate settings, where they spend all of their time in close proximity to other children and staff members" and are thus unable to practice effective methods of preventing transmission. Moreover, while the elderly and those with underlying health conditions remained the most vulnerable to serious illness or death from COVID-19, the plaintiffs stated that "approximately 6% of infected children and 11% of infected infants had severe or critical cases," demonstrating a risk of severe harm to the plaintiffs. The plaintiffs claimed that a TRO was appropriate because Flores Settlement, the TVPRA, and the First and Fifth Amendments to the U.S. Constitution each vest children who have custodians available to receive them with substantive rights against ORR’s keeping them in congregate care, especially during a global pandemic."

On March 27, 2020, the government filed an opposition to the plaintiffs' motion for TRO. The government asserted that if there is a claim that the Flores Agreement has been violated, that claim "must proceed in a Flores enforcement action." The government also argued that the plaintiffs' due process claim lacked merit, proclaiming that they have "gone to extraordinary lengths to care for children in a profoundly challenging situation, while also fulfilling its statutory mandate under the TVPRA for expeditious release of children to custodians who will care for them, implementing measures both to prevent the spread of COVID-19 and provide appropriate medical care in the case of infection." Finally, the government contended that, considering the risk posed by the proposed mass transit of plaintiffs and strained resources for administrative hearings caused by COVID-19, plaintiffs "fail to show how their alleged injury would be redressed by the relief they seek."

As of April 2, 2020, the plaintiffs application for TRO is pending. Moreover, the parties have exchanged proposed settlements but have failed to reach an agreement. A bench trial is currently scheduled for January 19, 2021. The case is ongoing.

Veronica Portillo Heap - 10/28/2018
Aaron Gurley - 03/26/2020


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