On July 20, 2018, a group of minors from Honduras and Guatemala and their guardians and sponsors filed this putative class action lawsuit in the U.S. District Court for the Eastern District of Virginia. The plaintiffs sued the Office of Refugee Resettlement, US Customs and Border Protection, the Shenandoah Valley Juvenile Center, Youth for Tomorrow, and other contractors supporting the government’s immigration enforcement activities under the Trafficking Victims Protection Reauthorization Act and the Administrative Procedure Act; they also petitioned for writs of habeas corpus. Represented by attorneys from the Legal Aid Justice Center, Southern Poverty Law Center, and private counsel, the plaintiffs alleged that the defendants’ separation of children from their families for extended periods of time violated their statutory and constitutional rights. The plaintiffs sought declaratory relief and the immediate release of unlawfully detained children.

Specifically, the plaintiffs raised six claims against the defendants. The first three claims related to the Office of Refugee Resettlement’s procedures regarding submission, review, and approval of family reunification applications. The plaintiffs claimed that these procedures violated the Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232, that they violated the plaintiffs’ substantive due process rights, and that they violated the plaintiffs’ procedural due process rights. The next two claims alleged that ORR’s policy of requesting biological and biometric information from family members seeking reunification violated the Administrative Procedure Act for failure to comply with notice-and-comment rulemaking and for being arbitrary and capricious. Finally, the plaintiffs brought a claim under 28 U.S.C. 2241(c) seeking habeas relief.

The minor plaintiffs had all fled their home countries for fear of persecution or after the death of a family member. They were apprehended by United States Customs and Border Protection. Two of the four minor plaintiffs were separated from siblings who had fled with them. Two of the minor plaintiffs were placed in the custody of the Office of Refugee Resettlement; one was sent to Youth for Tomorrow, and one was transferred from a Wal-mart-turned-detention center to the Shenandoah Valley Juvenile Center. All plaintiffs were held for six months or more before being reunited with their families.

On August 16, 2018, the plaintiffs, under the authorization of Judge Leonie M. Brinkema, filed a Second Amended Complaint and a motion to seal. This motion was granted, which means that many of the files related to this case, including the initial complaint, additional complaints, and several motions, are unavailable for public access. The information in this summary comes from those filings that are publicly available.

The defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim on September 21, 2018. This was granted in part and denied in part on November 15. Judge Brinkema dismissed as moot the claims of three individual plaintiffs who had, at the time of the motion, been released from ORR’s custody, and also granted the defendants’ motion to dismiss regarding the substantive due process claims. Judge Brinkema denied, however, the defendants’ motion with regards to the APA claims, the TVPRA claim, and the procedural due process claims. 352 F. Supp. 3d 559.

On February 22, 2019, the plaintiffs filed a Third Amended Complaint, and on March 4, filed a motion for class certification. On March 14, the defendants again filed a motion to dismiss for lack of jurisdiction, which was granted on March 19 regarding the “individual” claims of all the plaintiffs. The docket did not specify exactly which claims were “individual,” but at least some claims were not individual claims because the case continued. On April 26, 2019, the court heard oral arguments regarding the motion for class certification. Judge Brinkema then certified two classes: a minor class (which included all children designated as unaccompanied undocumented minors who were in ORR’s custody) and a sponsor class (which included those who had applied to sponsor a minor to whom the minor had not been released).

For the next several months, the parties conducted discovery. On September 16, the plaintiffs filed a motion for summary judgment, and the hearing on that motion was set for November 22, 2019. The case is ongoing.

Elizabeth Helpling - 10/10/2019


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