E.O.H.C. v. Barr

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation434 F.Supp.3d 321
Docket NumberCase No. 5:19-cv-06144-JDW
Parties E.O.H.C., on his own behalf, and on behalf of M.S.H.S., his minor daughter, as her next friend, Petitioners, v. William BARR, in his official capacity as the Attorney General of the United States, et al., Respondents.
Decision Date22 January 2020


Mr. H and his daughter Mia ("Petitioners") came to this country illegally from Guatemala. They want to join their wife and mother, who is living in New Jersey with her newborn son. Their goals are understandable. They want to stay together after all they have been through together, and they want their family to be together, at least while they await word from the Department of Homeland Security ("DHS")1 as to whether they will be allowed to stay in this Country. They ask this Court to issue a preliminary injunction releasing both of them immediately pending the outcome of their removal proceedings, or at least to order DHS to conduct a hearing to determine whether they should be released.

Petitioners, however, must show more than noble goals and an empathetic case to obtain the relief that they seek from this Court. They must show, among other things, a substantial likelihood of success on the merits of their legal claims. They have not made such a showing. Instead, they have asked the Court to wade into uncharted territory and to declare for them Constitutional rights that no other Court has recognized. The Court declines to do so. It therefore must deny the Motion.

A. Petitioners' Entry Into The United States Without Inspection

Mr. H and his seven-year-old daughter Mia are currently detained at the Berks Family Residential Center ("BFRC"). Mr. H is married to Mia's mother ("Mrs. H"). Mrs. H currently resides in New Jersey with an infant son who was born in the United States in November 2019.

In 2014, Mr. H entered the United States without inspection and was removed back to Guatemala. (Tr. 1/6/2020 at 125:2–125:17.) In 2018, Mrs. H applied for non-immigrant tourist visas for herself and Mia to travel to the United States to visit friends. (ECF Nos. 27, 27-1.) DHS approved Mrs. H's visa, but not Mia's visa. (ECF Nos. 1 at ¶ 56; ECF Nos. 27-1, 27-2, 27-3 at ¶ 8.) Mrs. H arrived in the United States pursuant to that visa on April 18, 2019. She was pregnant at the time.

Unable to obtain visas, Mr. H and Mia traveled over land through Mexico to the United States. On April 23, 2019, Mr. H and Mia entered the United States without inspection. They encountered a Border Patrol Agent, who took them into custody. (ECF No. 1 at ¶ 57; ECF No. 27-4.)

DHS issued Mr. H and Mia Notices To Appear, requiring them to appear in San Diego before an Immigration Judge on June 25, 2019, for "standard removal proceedings" under Section 240 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229. (ECF No. 1 at ¶ 61.) DHS deemed Petitioners subject to the Migrant Protection Protocols ("MPP") and returned them to Mexico on April 29, 2019, pending the resolution of their immigration case. (ECF Nos. 27-24, 27-25.) In their Petition, Petitioners describe deplorable conditions in which they lived in Mexico.

Petitioners arrived at the border for their scheduled hearing on June 25, 2019, and were transported to a hearing before an Immigration Judge. (ECF No. 1 at ¶ 69.) Mr. H participated in that hearing pro se and waived an appeal. (ECF No. 27-12.) He did not express a fear of returning to Guatemala. (Id. ) However, Mr. H expressed that he did not want to return with Mia to Mexico. (Id. at 12:18–12:19.) The Immigration Judge ordered Petitioners removed to Guatemala. (Id. at 11:15–11:16.) On June 27, 2019, Petitioners were transported to BFRC for processing for removal. (ECF No. 1 ¶ 71.)

B. Mr. H's And Mia's Detention At BFRC

Once at BFRC, Petitioners retained counsel. On July 12, 2019, Petitioners filed a direct appeal with the Board of Immigration Appeals ("BIA"), challenging whether their waiver of an appeal at their immigration hearing was voluntary, knowing, and intelligent. (ECF Nos. 27-21; 27-30 at Ex. E.) That appeal triggered an automatic stay of Petitioners' removal pursuant to 8 C.F.R. § 1003.6(a). The BIA also granted a stay on July 23, 2019, pending the outcome of Petitioners' appeal. (ECF No. 27-22; 27-30 at Ex. G.) On December 4, 2019, the BIA sustained the appeal and determined that Mr. H's and Mia's waiver of rights was not knowing or intelligent. (ECF No. 1 at ¶ 93.)

On August 5, 2019, while the BIA appeal was pending, Petitioners filed their first action in this Court and sought a temporary restraining order ("TRO") and preliminary injunction to prevent DHS from transferring them to Mexico pending resolution of their removal proceedings. The Court held that it had no jurisdiction to hear those claims. See Hernandez Culajay v. McAleenan , 396 F. Supp.3d 477 (E.D. Pa. 2019). That case is currently on appeal. During the pendency of the appeal, the Parties reached an agreement that DHS would keep Petitioners at BFRC, rather than return them to Mexico, and in exchange, Petitioners would not seek a stay and would support expedited briefing in the Court of Appeals. (ECF No. 27-23.)

On August 9, 2019, a DHS asylum officer conducted an assessment of Petitioners' claims regarding their fear of return to Mexico as part of MPP. The asylum officer concluded that Petitioners did not establish a clear probability of torture or persecution on account of a protected ground or of torture in Mexico. On or about August 29, 2019, counsel for Petitioners filed an asylum application for the family, including Mrs. H as a derivative applicant. (Tr. 1/6/2020 at 154:20–154:22.) To the Court's knowledge, Petitioners' asylum application remains pending.

In August 2019, Petitioners' counsel enlisted an expert to evaluate Mia's mental health. On August 26, 2019, Dr. Sarah Berthold, who holds a PhD in social work, evaluated Mia's mental condition. (ECF No. 26-1; Tr. 1/6/2020 at 184:17–187:8; 194:8–194:9.) Dr. Berthold was not admitted to BFRC. Therefore, she interviewed Mia and Mr. H via Skype. She spoke to each of them for about forty-five minutes, and then she spoke with them together for another ten minutes. (Tr. 1/6/2020 at 201:24–202:4, 203:4-203:10.) Dr. Berthold spoke with Mr. H to obtain his consent to evaluate Mia and to gather collateral information about her. (Tr. 1/6/2020 at 201:19–201:23.) Dr. Berthold did not evaluate or assess Mr. H's mental state. (Id. at 201:7–18.) On September 3, 2019, Dr. Berthold issued a report concluding that Mia had suffered from suicidal ideations

and diagnosing her with major depressive disorder ("MDD") and posttraumatic stress disorder ("PTSD"). (ECF No. 26-1.) In her report, Dr. Berthold emphasized the importance of keeping Mia with her father and explained that "[f]urther separation from a parent would be greatly traumatizing for [Mia] to the extent that, in my professional opinion, it would likely compromise her functioning and safety and would put [Mia] at risk for becoming suicidal again." (Id. at 8.)

Despite these dire diagnoses, neither Petitioners nor their counsel acted on them for several weeks. At some point in October 2019, Petitioners' immigration counsel Bridget Cambria discussed concerns that she had, based on the report with an attorney from the Department of Justice's Office of Immigration Litigation.

(Tr. 1/7/20 at 117:3-117:6.) She then waited several more weeks for a response. (Id. 117:20-119:15.)

Aside from meeting with Dr. Berthold, Mia also meet with Dr. Michael Mosko, a staff psychologist at BFRC. Dr. Mosko is the designated attending mental health provider for detainees like Mr. H and Mia. (Tr. 1/7/20 at 99:1-99:4.) On July 28, 2019, Dr. Mosko performed an in-person mental health intake of Mia. (ECF No. 27-26 at 2.) He did not diagnose her with any mental health condition at that time. (Id. at 4.) Since then, Mia has received weekly, in-person Mental Health Wellness Checks with Dr. Mosko during her detention in BFRC. (Id. ; Tr. 1/7/20 at 102:13–102:17.) The weekly well checks are usually five minutes long, but can last longer if necessary. (Tr. 1/7/20 at 102:21–102:25.) Dr. Mosko has met with Mia, in-person, on at least twenty-five separate occasions since she arrived at BFRC. (Id. at 103:10–103:22.) Mia's diagnosis remains unchanged, and her medical record indicates that she has no current mental health diagnosis. (ECF No. 27-26 at 4, 7.) In fact, based on his experiences speaking with Mia and her father, Dr. Mosko disagrees with Dr. Berthold's conclusion that Mia is suffering from major depressive disorder

and PTSD. (Id. at 16–17; Tr. 1/7/20 at 118:15–119:24.)

C. Mr. H's And Mia's Requests for Asylum, Parole, And Bond

On November 20, 2019, counsel for Petitioners submitted a request for parole with Immigration and Customs Enforcement ("ICE"), outlining the concerns raised in Dr. Berthold's report. (ECF No. 1 at ¶ 90; ECF No. 27-28.) That parole request was the first time that Mr. H and Mia asked to be released to live with Mrs. H. It was also the first time that anyone provided DHS with a copy of Dr. Berthold's report. ICE has not responded to the parole request. (ECF No. 1 at ¶ 98.) However, DHS has offered to release Mia to her mother whenever Mrs. H comes to take custody of her. (Tr. 1/7/2020 at 29:17–29:22; 38:24–39:2.)

On December 5, 2019, DHS received Petitioners' motion for a custody redetermination (i.e., motion for bond). (Tr. 61:15–16; ECF No. 27-30.) In a decision dated January 3, 2020, the Executive Office for Immigration Review issued its decision in response to Petitioners' motion for custody redetermination, ordering that Mia be released on her own recognizance to the custody of her mother, but denying the request with respect to Mr. H for lack of jurisdiction. (Hearing Ex. 2 at 5.) Specifically, the Immigration Court concluded that it did not have jurisdiction over the custody determination of...

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