J.S.G. ex rel. Hernandez v. Stirrup, Civil Case No. SAG-20-1026

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtStephanie A. Gallagher United States District Judge
PartiesJ.S.G. ex rel. ARTURO SANTIAGO HERNANDEZ, Plaintiff-Petitioner, v. HEIDI STIRRUP, et al., Defendants-Respondents.
Docket NumberCivil Case No. SAG-20-1026
Decision Date26 April 2020

J.S.G. ex rel. ARTURO SANTIAGO HERNANDEZ, Plaintiff-Petitioner,
HEIDI STIRRUP, et al., Defendants-Respondents.

Civil Case No. SAG-20-1026


April 26, 2020


Petitioner J.S.G., a minor, by and through his grandfather, Arturo Santiago Hernandez ("Hernandez") filed the instant Petition for Judicial Review of Placement Pursuant to Flores Settlement Agreement, Complaint for Injunctive and Declaratory Relief, and Petition for a Writ of Habeas Corpus ("the Petition") on April 20, 2020. ECF 1. Petitioner brings this action against various officials, in their official capacity, within the United States Department of Homeland Security ("DHS"), the United States Department of Health and Human Services ("HHS"), the United States Immigration and Customs Enforcement ("ICE"), and the Office of Refugee Resettlement ("ORR"), a sub-department of HHS (collectively, "Respondents"). Id. Before the Court is Petitioner's Motion for Temporary Restraining Order and Preliminary Injunction for ORR to Release Unaccompanied Immigrant Child Who Will Otherwise Be Transferred to ICE Detention on his 18th Birthday - April 28, 2020. ECF 7 ("the Motion"). After the Court ordered an expedited response, ECF 8, Respondents filed an Opposition, ECF 12, and Petitioner replied, ECF 14. The Court held a hearing on the Motion on April 24, 2020. For the reasons that follow, Petitioner's Motion for a TRO will be granted.

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A. J.S.G.'s Arrival into the United States

J.S.G., a seventeen-year-old minor, is a Guatemalan national currently being held in detention by Respondent ORR. ECF 1, ¶¶ 5, 16. In February and March, 2018, while J.S.G. was still living with his parents in Guatemala, Guatemalan gang members threatened J.S.G. with physical harm and death, and also threatened harm to one of J.S.G.'s family members. Id. ¶¶ 16-17. J.S.G. decided to flee to America to escape these threats. Id. ¶¶ 17-18.

J.S.G.'s uncle accompanied him to the United States, and assured J.S.G.'s parents that he would live with, and care for, J.S.G. Id. ¶ 18. A few days prior to their trip, J.S.G.'s uncle obtained a fabricated birth certificate, representing that he was J.S.G.'s father. Id. ¶¶ 18-19. Despite his discomfort with the idea, J.S.G. went along with it, "because his uncle threatened to leave for the U.S. without him if J.S.G. did not comply." Id. ¶ 19.

J.S.G. and his uncle reached the United States border at Texas on or about April 26, 2018, where they turned themselves in to immigration officers. Id. ¶ 20. J.S.G. and his uncle told the officers the fabricated story that J.S.G.'s uncle was actually his father. Id. The immigration officers eventually released J.S.G. and his uncle, and upon their release, handed J.S.G.'s uncle some "documents." Id. ¶ 21. At no point during this interaction did the immigration officers speak about J.S.G.'s need to attend an immigration court proceeding, nor did the officers provide J.S.G. with any documentation regarding such a need. Id.

J.S.G. and his uncle then joined J.S.G.'s adult brother, Alex, in South Carolina. Id. ¶ 22. Alex asked J.S.G. if he had immigration court. Id. J.S.G. broached the subject with his uncle, who told J.S.G. "that they both had court but that they would not be going." Id. J.S.G. said he wanted to go, but his uncle said this "would cause problems," because the court would question

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why J.S.G. was there, but not his "father." Id. Though this "worried" J.S.G., he followed his uncle's instructions and did not go to immigration court. Id. ¶¶ 23-24.

Unbeknownst to J.S.G., on October 29, 2018, because of J.S.G.'s failure to appear, J.S.G. was ordered deported in absentia by an Immigration Judge at the Charlotte Immigration Court. Id. ¶ 26. On or about November 29, 2019, J.S.G. was arrested in North Carolina for driving under the influence, and driving without a license. Id. ¶ 27. J.S.G. first learned of his deportation order during a hearing related to the criminal charges. Id. On or about January 8, 2020, J.S.G. was transferred from juvenile detention in North Carolina to the Board of Child Care of the United Methodist Church, Inc. ("BCC"), which operates an ORR facility in Baltimore, Maryland. Id. ¶¶ 11, 28; ECF 1-2 (ORR Placement Authorization for J.S.G.). J.S.G.'s placement authorization form at BCC lists the following "Reason for Placement": "An unaccompanied minor who meets the definition of an unaccompanied alien child, 6 U.S.C. 279(g)(2), and is in Federal custody by reason of his or her immigration status." ECF 1-2, ¶ 10.

B. Further Immigration Proceedings Involving J.S.G.

On March 13, 2020, J.S.G.'s immigration counsel, Ms. Cynthia Hodge ("Hodge") filed a Motion to Rescind and Reopen J.S.G.'s immigration proceedings in the Charlotte Immigration Court. ECF 1, ¶ 35; ECF 1-4, ¶ 7 (Hodge Decl.). The motion triggered an automatic stay of deportation until the immigration judge made a ruling. ECF 1-4, ¶ 9. Five days later, on March 18, 2020, United States Immigration Judge Rodger C. Harris issued a marginal Order denying J.S.G.'s Motion. ECF 1-5. Judge Harris's ruling gave the following brief rationale:

Respondent gave false statements on arrival to immigration authority concerning family relationship. Respondent has not attained UAC [unaccompanied child] status. No application for relief filed. No affidavits from uncle or brother filed. Both notice of hearing and order of removal were not returned to immigration court by USPS. Reopen sua sponte is not appropriate in Respondent's case.

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ECF 1-5. According to the Order's Certificate of Service, J.S.G. was served with the Order, through counsel, on approximately April 13, 2020. Id. J.S.G.'s counsel asserts that they did not receive the Order via mail until Friday, April 17, 2020. ECF 1, ¶ 46. J.S.G. appealed the Order on April 21, 2020. ECF 14-2.

C. The Efforts to Reunify J.S.G. with his Grandfather

Upon taking custody of J.S.G. in January, 2020, ORR began the process of finding a suitable individual sponsor for reunification. ECF 12-1, ¶ 8. The first sponsorship option ORR pursued was not viable. Id. In early February, 2020, ORR then began processing paperwork to reunify J.S.G. with his paternal grandfather, Hernandez, who lives in Myrtle Beach, South Carolina, as an alternative to keeping J.S.G. in detention at BCC. ECF 1, ¶¶ 31-32. J.S.G. and Alex both saw Hernandez about three times a week while they lived in South Carolina together, and Hernandez has maintained weekly phone contact with J.S.G. during his detention at BCC. Id. ¶¶ 32-33. Hernandez completed the application for reunification by mid-March, 2020, and ORR completed a home study of Hernandez's residence on or about March 24, 2020. Id. ¶¶ 34, 38. Hernandez then received a positive home study recommendation in early April, 2020. Id. ¶ 40.

While Hernandez's application was in process, on March 12, 2020, Hodge informed the ICE Field Office Juvenile Coordinator ("FOJC") that she would be filing a Motion to Reopen J.S.G.'s immigration case. ECF 1-4, ¶ 7. Hodge passed this information on to J.S.G.'s ORR Case Manager, Esly Marshall ("Marshall") on March 19, 2020. Id. On March 31, 2020, one of Hodge's colleagues asked Marshall whether J.S.G. might reunify with his grandfather prior to J.S.G.'s turning eighteen, but Marshall did not respond. Id. ¶ 12.

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On April 6, 2020, ORR Case Manager Daniela Rosales informed J.S.G.'s immigration counsel that the ICE FOJC had instructed the Federal Field Specialist ("FFS") at ORR, Hildamaria Powell, "not to let [J.S.G.] leave," and that "FFS [Powell] wanted to confirm . . . what work [counsel] have completed to address [J.S.G.'s] order of removal." Id. ¶ 41; ECF 1-4, ¶ 13 (Hodge Decl., J.S.G.'s immigration counsel). Hodge informed Rosales about the Motion to Reopen that was filed on March 13 and that an automatic stay was in place, though at that time, all parties were unaware that Judge Harris had already denied the motion. ECF 1, ¶ 41; ECF 1-4, ¶ 13. Upon further inquiry from immigration counsel, on April 7, 2020, Rosales confirmed that FFS Powell "did mention that at this moment we [cannot] move forward with reunification," ECF 1-4, ¶ 16, despite the fact that Hernandez had already received a positive recommendation to reunify with J.S.G., id. ¶ 17. J.G.S. heard from his ORR case managers that "[i]t's getting complicated because immigration doesn't want to let [him] leave," id. ¶ 20. As of April 10, 2020, Hernandez's impression was that ORR would be releasing J.S.G. to him, but he was not sure if that would be "in one or two days," or when the COVID-19 pandemic was over. Id. ¶ 21.

On April 14, 2020, ORR Case Manager Marshall informed J.S.G.'s counsel that he was in "quarantine due to a suspicious case of COVID-19 in the facilit[y]." Id. ¶ 22. Counsel learned four days later, from J.S.G. himself, that he was not sick, and that no medical professional had evaluated him. Id. ¶ 24. However, J.S.G. was in fact being "quarantined," which, according to BCC staff, means that "youth are to conduct all activities in their individual room." Id. ¶ 26. On April 20, 2020, Dr. Gregory Branch, the Health Officer and Director of Health and Human Services for Baltimore County, informed J.S.G.'s counsel that, while J.S.G. remains asymptomatic, he had contact with a minor on April 13, 2020, who was being tested for COVID-19. Id. ¶ 27. Dr. Branch recommended that J.S.G. could still reunify with his

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grandfather as long as (1) he is still asymptomatic, (2) wears a mask, (3) does not utilize public transit, and (4) self-quarantines until April 27, 2020. Id. ORR acknowledged that it has considered J.S.G.'s "individual circumstances" and his potential exposure to COVID-19, and has concluded that COVID-19 "does not pose a barrier to his release." EF 12-1, ¶ 11 (De La Cruz Decl., Senior FFS, ORR).

On April 21, 2020, ORR learned from ICE's Office of Enforcement Removal...

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