Diaz-Calderon v. Barr

• Decision Date: 22 September 2020
• Docket Number: 2:20-CV-11235-TGB
• Parties: MELVIN WILMER DIAZ-CALDERON, Petitioner, v. WILLIAM P. BARR, in his official capacity as the Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — Eastern District of Michigan

MELVIN WILMER DIAZ-CALDERON, Petitioner, v. WILLIAM P. BARR, in his official capacity

as the Attorney General of the United States, et al., Respondents.

2:20-CV-11235-TGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 22, 2020

ORDER GRANTING IN PART PETITIONER'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (ECF NO. 2)

The Petitioner in this case is a Guatemalan native who seeks habeas corpus relief to be released from prolonged detention by Immigration and Customs Enforcement ("ICE") and the Department of Homeland Security ("DHS"). The situation of Petitioner Melvin Wilmer Diaz-Calderon ("Diaz") is somewhat unusual. He has been granted Special Immigrant Juvenile ("SIJ") status by the United States and is currently eligible to receive a visa that could allow him to adjust his immigration status to that of a permanent resident. Yet, because he was previously wrongly removed from the United States in violation of a federal court's injunction, and then later ordered by that same court returned to the United States, but without an Immigration Judge ever reconsidering the basis of his detention upon his return, he remains in the custody of the Immigration authorities as he awaits the decision of an appeal seeking to reopen his removal decision—an appeal that the government no longer opposes. For the reasons set out in detail below, the Court orders that Diaz be given a hearing within 14 days on the issue of his detention, or that he be released.

Diaz initially filed a petition for habeas corpus under 28 U.S.C. § 2241 seeking to challenge his removal order, pending deportation, and his detention. Along with his petition, Diaz filed a motion for temporary restraining order and preliminary injunction, also seeking a stay of his removal order and release from detention. ECF No. 2. The respondents in Petitioner's action are Attorney General William P. Barr, Field Office Director Rebecca Adducci of the Detroit Field Office of ICE, Acting DHS Secretary Chad Wolf, and Acting Director of ICE Matthew Albence ("Respondents"). ECF No. 1, PageID.6-7. This Court temporarily stayed Diaz's deportation while it considered his emergency motion. ECF No. 5. The motion was fully briefed. On the eve of the hearing on the TRO motion, Respondents filed a supplemental brief stating, among other things, that ICE agreed not to remove Petitioner while his motion to reopen is pending before the Bureau of Immigration Appeals ("BIA"). In light of their position, Respondents contended that the issue of whether to stay removal was rendered moot. Id. On the remaining issue of Petitioner's challenge to detention, the Court ordered additional briefingon both the merits of the issue and jurisdiction. Having carefully reviewed the briefing of the parties, and considering their oral arguments as presented at the hearings, the Court finds both that it has jurisdiction and that the motion for temporary restraining order and preliminary injunction should be GRANTED IN PART. Accordingly, the Court will ORDER that Respondents shall provide Diaz with a bond or custody redetermination hearing before an Immigration Judge within 14 days of the entry of this Order, and if no such hearing is conducted within that time, shall release him forthwith. At the bond or custody redetermination hearing before an Immigration Judge, Respondents must justify Diaz's continued detention by clear and convincing evidence.

I. Facts & Procedural History

A. Diaz's early life in Guatemala

Petitioner is a 24-year-old native of Guatemala, who was born on January 31, 1996. ECF No. 1, PageID.7. Diaz does not know his father, a man who raped his mother, causing her to become pregnant with him. Id. Diaz was raised by his grandparents, who were unable to care for him and abused him, after Diaz's mother abandoned him at the age of two. Id. Diaz was forced to drop out of school in the sixth grade to care for himself and his grandparents, and from a young age fought off gang recruitment. Id. at PageID.7-8. Due to the abuse and the death threats he received for refusing to join a gang, Diaz unlawfully entered theUnited States in July 2012, at the age of 17, to live with his cousin, Kevin Sergio Diaz Mazariegos, in California. Id.

B. California probate court appoints a legal guardian for Diaz and makes a special finding that it is not in his best interest to be removed from the United States

Congress established Special Immigrant Juvenile ("SIJ") status in 1990 as a humanitarian protection to allow abused, abandoned, and neglected children to remain in the United States with a pathway to permanent residency. 8 U.S.C. §§ 1101(b)(1), 1101(a)(7)(J). SIJ petitions are reviewed by the United States Citizenship and Immigration Services ("USCIS"), a component of the Department of Homeland Security. Osorio-Martinez v. Attorney Gen. United States of Am., 893 F.3d 153, 163 (3d Cir. 2018). According to the statute, an SIJ is "an immigrant who is present in the United States":

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status[.]

8 U.S.C. § 1101(a)(27)(J). An individual is eligible for classification as a special immigrant under § 1101(a)(27)(J) if he or she "[i]s under twenty-one years of age[.]" 8 C.F.R. 204.11(c). Congress has amended the statute conferring SIJ status—currently codified at 8 U.S.C. § 1101(a)(27)(J)—many times over its thirty-year history. Joshua M. v. Barr, --- F. Supp. 3d ---, 2020 WL 836606 at *15 (E.D. Va. Feb. 20, 2020). And Congress has consistently engaged in "efforts to expand eligibility for SIJ status and increase protections for vulnerable immigrant children." Id. (quoting Perez v. Ciccinelli, 949 F.3d 865, 878 (4th Cir. 2020)).

In December of 2016, when Diaz was 20 years old, the Probate Court for Marin County in California appointed Diaz's cousin as his guardian. ECF No. 1-3. The Probate Court found that Diaz should not return to Guatemala because his grandparents had abused him, and his mother had failed to protect him from them. Id. These findings were then submitted to USCIS in support of Diaz's SIJ status petition under § 1101(a)(27)(J)(i)-(ii). Then, on January 23, 2017, based on the California court's SIJ findings, Diaz submitted an "I-360" SIJ status petition to USCIS.

Unbeknownst to Diaz, in the summer of 2017, USCIS began delaying SIJ status petitions made by individuals between 18-20 years old, despite the fact that normally they would be processed within 180 days. ECF No. 35-1, PageID.548. Then, in February of 2018, USCIS announced a new policy that it would deny SIJ status petitions forchildren like Diaz whose SIJ findings were made by California probate courts when the child was between the ages of 18 and 20. Id. Following this announcement, a group of SIJ applicants like Diaz, filed a class action lawsuit in the United States District Court for the Northern District of California, challenging USCIS' policy. J.L. v. Cuccinelli, No. 5:18-cv-04914-NC (N.D. Ca.) ("J.L. litigation").¹

On September 13, 2018, USCIS issued a Notice of Intent to Deny Diaz's SIJ petition based on the policy described above because Diaz submitted his I-360 application after he turned 18. ECF No. 1-4. It appears that at this point, once he learned his SIJ application would be denied, Diaz relocated to Michigan. Meanwhile, on October 24, 2018, the court in the J.L. litigation granted a preliminary injunction. ECF No. 35-1. This preliminary injunction enjoined and restrained the DHS and USCIS:

1. From denying Special Immigrant Juvenile Status pursuant to 8 U.S.C. § 1101(a)(27)(J) on the ground that a California Probate Court does not have jurisdiction or authority to "reunify" an 18-to 20-year old immigrant with his or her parents;

2. From initiating removal proceedings against or removing any Special Immigrant Juvenile Status petitioner who was appointed a guardian pursuant to § 1510.1(a) of the California Probate Code and whose Special Immigrant Juvenile Status petition has been denied on the grounds that the California Probate Courtdid not have jurisdiction or authority to "reunify" an 18-to 20-year-old immigrant with his or her parents; and

3. To provide no less than 14 days notice to Plaintiffs' counsel before Defendants take any adverse adjudicatory or enforcement action against any of the individual Plaintiffs or members of the Proposed Class.

Id. at PageID.570. In February of 2019, the court in J.L. also granted the plaintiffs' motion for class certification of the following class definition:

Children who have received or will receive guardianship orders pursuant to California Probate Code § 1510.1(a) and who have received or will receive denials of their SIJ status petitions on the grounds that the state court that issued the SIJ findings lacked jurisdiction because the court did not have the authority to reunify the children with their parents.

J.L. v. Cissna, 5:18-cv-04914-NC, ECF No. 112 (N.D. Ca. Feb. 1, 2019). It is undisputed that Diaz is a member of the J.L. litigation Proposed Class.

C. Diaz is removed from the United States to Guatemala despite his membership in the J.L. class and the preliminary injunction enjoining his removal

On April 16, 2019, Diaz was arrested in Michigan...