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.

As of October 26, 2018, the court had not yet decided on the plaintiff’s September motion to certify the class or the defendants’ September motion to dismiss the case or, in the alternative, transfer the case to the District of Columbia.

The case is ongoing.

Veronica Portillo Heap - 10/28/2018


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