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Saravia v. Sessions

United States Court of Appeals, Ninth Circuit

October 1, 2018

Ilsa Saravia, as next friend for A.H., a minor, and on her own behalf; Lorenza Gomez, as next friend for A.H., a minor, and on her own behalf; Wilfredo Velasquez, as next friend for F.E., a minor, and on his own behalf, Plaintiffs-Appellees,
v.
Jefferson B. Sessions III, Attorney General; James McHenry, Acting Director of the United States Executive Office for Immigration Review; Thomas E. Price, Secretary of the Department of Health and Human Services of the United States; Steven Wagner, Acting Assistant Secretary of the Administration for Children and Families; Scott Lloyd, Director of the Office of Refugee Resettlement of the United States; Elicia Smith, Federal Field Specialist of the Office of Refugee Resettlement of the United States; Elaine C. Duke, Acting Secretary of the Department of Homeland Security of the United States; Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement; James McCament, Acting Director of U.S. Citizenship and Immigration Services, Defendants-Appellants.

          Argued and Submitted July 13, 2018 San Francisco, California

          Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding D.C. No. 3:17-cv-03615-VC

          Scott G. Stewart (argued), Attorney; Sarah B. Fabian and Nicole N. Murley, Senior Litigation Counsel; William C. Silvis, Assistant Director; William C. Peachey, Director, District Court Section; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Julia Harumi Mass. (argued) and William S. Freeman, ACLU Foundation of Northern California, San Francisco, California; Martin S. Schenker, Nathaniel R. Cooper, Kathlyn A. Querubin, and Trevor M. Kempner, Cooley LLP, San Francisco, California; Judy Rabinovitz, ACLU Foundation Immigrants' Rights Project, New York, New York; Holly S. Cooper, Law Offices of Holly S. Cooper, Davis, California; Stephen B. Kang, ACLU Foundation Immigrants' Rights Project, San Francisco, California; for Plaintiffs-Appellees.

          Before: Michael Daly Hawkins, Carlos T. Bea, and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY[*]

         Immigration

         In an action arising from Immigration and Customs Enforcement's rearrest and detention of noncitizens who came to this country as unaccompanied minors, the panel affirmed the district court's grant of a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the basis for their rearrest.

         The plaintiffs are noncitizen minors who entered the United States unaccompanied by a parent or guardian and were placed in the custody of the United States Office of Refugee Resettlement ("ORR"). ORR subsequently released the minors to a parent or sponsor after concluding that each minor was not dangerous to himself or the community nor a flight risk. However, in 2017, Immigration and Customs Enforcement arrested plaintiffs because of alleged gang membership and transferred them to secure juvenile detention facilities.

         After plaintiff A.H. filed this putative class action, the district court provisionally certified a class of certain noncitizen minors and granted a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the gang allegations.

         The panel held that the district court did not abuse its discretion in granting the preliminary injunction, rejecting the government's contention that the relief ordered conflicts with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"). The panel concluded that the preliminary injunction is entirely consistent with the TVPRA's mandate that ORR place unaccompanied children in the least restrictive setting that is in the best interest of the child, explaining that: (1) the preliminary injunction calls for minors to be released back to their previous sponsors, whom the government has already determined to be suitable; and (2) nothing in the order prohibits the government from transferring minors to ORR custody within 72 hours, as required by the TVPRA.

         The panel also rejected the government's contention the district court failed to consider existing procedural protections allegedly available to the minors: (1) an internal review process mandated by the TVPRA and (2) the bond hearings required by the 1997 settlement in Flores v. Sessions. The panel explained that the district court expressly considered current ORR procedures, including Flores bond hearings and regular review by ORR. However, the district court concluded that, on the current record, these procedures appeared inadequate to protect against the risk of minors being erroneously taken away from their sponsors. The panel concluded that the district court did not abuse its discretion in this regard, explaining that the ORR review process is entirely unilateral such that the juvenile is not provided with notice of the reason for incarceration or an opportunity to answer any charges.

         The panel also concluded that the district court did not abuse its discretion in concluding that Flores hearings were not sufficient to protect the TVPRA rights of the members of the plaintiff class, each of whom had initially been found to qualify for placement with a parent or sponsor previously approved by ORR. The panel explained that Flores hearings were designed to consider ORR's initial determination that a minor should be detained and, thus, a favorable finding in a Flores hearing does not entitle minors to release. The government must still identify a safe and secure placement into which the child can be released - a process that can take months. Noting that the government conceded that the record is unclear as to how promptly minors receive Flores hearings, the panel also concluded that the district court reasonably found that the evidence suggests class members will remain in ORR custody indefinitely in the absence of a preliminary injunction.

          OPINION

          HURWITZ, CIRCUIT JUDGE.

         This case involves noncitizen minors who entered the United States unaccompanied by a parent or guardian and were then placed in the custody of the United States Office of Refugee Resettlement ("ORR"). ORR subsequently released the plaintiffs to a parent or sponsor after concluding that each minor was not dangerous to himself or the community nor a flight risk.

         In 2017, the government arrested plaintiffs because of alleged gang membership and transferred them to secure juvenile detention facilities. The district court granted a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the gang allegations. We find no abuse of discretion and affirm.

         I. Background

         a. The ...


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