B.I.C. v. Asher
| Decision Date | 19 February 2016 |
| Docket Number | NO. C16-132-MJP-JPD,C16-132-MJP-JPD |
| Parties | B.I.C., Petitioner, v. NATHALIE R. ASHER, et al., Respondents. |
| Court | U.S. District Court — Western District of Washington |
This is a habeas action pursuant to 28 U.S.C. § 2241. Petitioner, a native and citizen of Somalia, presented himself at the United States border in August 2015 and asked to apply for asylum. After representing that he was 17 years old, he was transferred to the custody of the Office of Refugee Resettlement ("ORR"), the agency within the Department of Health and Human Services ("HHS") that is responsible for the care and custody of unaccompanied children detained by the Department of Homeland Security ("DHS"). Eventually, he was placed in a long-term foster home in Portland, Oregon. In December 2015, ORR officials concluded that petitioner is, in fact, over 18 and transferred him to the custody of U.S. Immigration and Customs Enforcement ("ICE"), which detained him at the Northwest Detention Center in Tacoma, Washington.
On January 28, 2016, petitioner initiated the instant habeas action against Nathalie R. Asher, ICE Seattle Field Office Director; Jeh Johnson, DHS Secretary; Sylvia M. Burwell, HHS Secretary; Ivonne Velazquez, ORR Federal Field Specialist Supervisor; Maria Riedel, ORR Federal Field Specialist; Lowell Clark, Warden of the Northwest Detention Center; and DHS, ICE, HHS, and ORR. Dkt. 1. He requests, among other things, release from DHS custody and a declaration that ORR's age determination is in violation of federal law. Id. at 18.
Currently before the Court is petitioner's motion for a temporary restraining order, which was filed on February 1, 2016. Dkt. 3. He seeks (1) immediate return to his foster family and (2) an order barring respondents from relying on ORR's age determination. Dkt. 3. The Court ordered service and briefing, specifically directing respondents to address why alternatives to detention, such as electronic monitoring, were not appropriate for petitioner. Dkt. 4. On February 3, 2016, ICE released petitioner on electronic monitoring, thus mooting the Court's question regarding alternatives to detention, and he returned to his foster mother. Dkt. 6-1 at 1. Because petitioner has been released, respondents maintain that his motion for temporary restraining order should be denied. Dkt. 6. In his reply, petitioner asserts that he is still entitled to immediate relief. Dkt. 8.
Having carefully considered the parties' submissions, the balance of the record, and the governing law, the Court concludes that oral argument is unnecessary and recommends that petitioner's motion for temporary restraining order be DENIED. The Court also sets a briefing schedule on the merits of petitioner's habeas petition.
Before the creation of DHS in 2002, the care and placement of unaccompanied alien children1 ("UAC") in the United States was the responsibility of the Office of Juvenile Affairs in the former Immigration and Naturalization Service ("INS"). See F.L. v. Thompson, 293 F. Supp. 2d 86, 96 (D.D.C. 2003). In 2002, INS's functions were split between the enforcement of federal immigration law, which was left to DHS, and the care of immigrant children, which was left to HHS. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002) ("HSA"). Those laws were amended again in 2008 through the William Wilberforce Trafficking Victims Protection Act ("TVPRA"), further separating DHS's and HHS's functions by placing the care and custody of children under HHS's jurisdiction and clarifying the respective roles and responsibilities of the two agencies with respect to UACs.
With the enactment of the HSA, Congress created DHS and transferred most immigration functions formerly performed by INS to DHS and its components, including U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and ICE. See HSA; Department of Homeland Security Reorganization Plan Modification of January 30, 2003, H.R. Doc. No. 108-32 (2003) (). Notably, Congress transferred to ORR the responsibility for the care of any UAC "who [is] in Federal custody by reason of [his or her] immigration status." 6 U.S.C. §§ 279(a), (b)(1)(A). The HSA also transferred to ORR the responsibility for making all placement decisions for UACs, required ORR to coordinate theseplacement decisions with DHS, and required ORR to ensure that UACs are not released upon their own recognizance. See 6 U.S.C. §§ 279(b)(l)(C), (D), (b)(2).
The TVPRA, which was signed into law on December 23, 2008, contains statutory protections relating to UACs and codified protections related to the processing and detention of UACs. The TVPRA built on the split of duties in the HSA and further requires that "the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services." 8 U.S.C. § 1232(b)(1). It also provides that in most instances, "any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child." 8 U.S.C. § 1232(b)(3).
The TVPRA makes clear that HHS is responsible for all placement decisions for UACs in its custody, and for conducting suitability assessments for those placements. 8 U.S.C. § 1232(c). It requires that UACs in HHS custody be "promptly placed in the least restrictive setting that is in the best interest of the child," and it provides guidelines for the reunification of UACs with their families by HHS. 8 U.S.C. § 1232(c)(2), (3).
The protections TVPRA affords UACs apply after the HHS, in consultation with DHS, determines that the applicant is indeed a child. 8 U.S.C. § 1232(b)(a). Importantly for this litigation, the TVPRA provides:
The Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, shall develop procedures to make a prompt determination of the age of an alien, which shall be used by the Secretary of Homeland Security and the Secretary of Health and Human Services for children in their respective custody. At a minimum, these procedures shall take into account multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the unaccompanied alien.
8 U.S.C. § 1232(b)(4) (emphasis added).
Pursuant to § 1232(b)(4), ORR developed age determination procedures for individuals without lawful immigration status.2 See Dkt. 3-2 (Children Entering the United States Unaccompanied : Section 1 (updated Oct. 5, 2015) ("ORR Guide")). The ORR Guide provides that "HHS may make age determinations of [UACs] when they are in HHS custody on a reasonable suspicion that a child in HHS custody is 18 years or older." Id. at 8 (ORR Guide § 1.6.1). When conducting age determinations, ORR case managers are directed to seek the following evidence, but information from each category is not required: (1) documentation, such as official government-issued documents and other reliable records that indicate the UAC's date of birth; and (2) statements by individuals who can credibly attest to the age of the UAC, including the UAC (but generally, a UAC's uncorroborated declaration regarding age is not used as the sole basis for an age determination). Id. at 8 (ORR Guide § 1.6.2).
When other information is "inconclusive," case managers may use medical age assessment procedures, such as dental maturity assessments using radiographs. Id. The ORR Guide provides that a "medical professional experienced in age assessment method(s) must perform the examination, taking into account the individual's ethnic and genetic background." Id. The ORR Guide recognizes that "no medical assessment method can determine an exact age [so] best practice relies on the estimated probability that an individual is 18 or older." Id. "The examining doctor must submit a written report indicating the probability percentage that the individual is a minor or an adult. . . If an individual's estimated probability of being 18 or older is 75 percent or greater, ORR will refer the individual to DHS." Id.
Petitioner is a native and citizen of Somalia. See Dkt. 1-4. On August 16, 2015, he arrived at the B&M International Bridge in Brownsville, Texas, and applied for admission into the United States as a political asylee. Dkt. 1-3 at 1. He indicated to DHS officials that he was born in May 1998, and was 17 years old. Dkt. 1-4 at 3. Petitioner reported that his father was murdered in 2008, likely by the militant group Al-Shabaab, and that in May 2009, his mother sent him to South Africa for his safety. Id. at 4, 8. There, he lived with an uncle for nearly four years, but decided to depart for the United States after his attempts to obtain asylum were unsuccessful. Id. at 4. Petitioner's uncle paid a smuggler to get petitioner to Brazil, and then he made his way north through South and Central America. Id. at 9. During this trip, he destroyed his identification documents so that if he was caught, he would not be sent back to Somalia. Id. at 6-7.
In light of DHS's determination that petitioner was a UAC, he was transferred to the care and custody of ORR. Dkt. 1 at 6; Dkt. 1-7 at 1. Initially, he was placed in a youth shelter in Chicago, Illinois. Dkt. 1 at 6. Then on October 28, 2015, he was transferred to Portland, Oregon, for long-term placement with a foster family. Dkt. 1-7 at 1. His foster mother, Jeska I. Dalizu, is an immigrant from Africa, who is now a United States citizen. Dkt. 1-10. Petitioner enrolled in high school...
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