Joshua M. v. Barr

• Decision Date: 20 February 2020
• Docket Number: Civil Action No. 3:19cv770
• Citation: 439 F.Supp.3d 632
• Parties: JOSHUA M., Petitioner, v. William BARR, in His Official Capacity as the Attorney General of the United States; Chad Wolf, in His Official Capacity as Acting Secretary for the United States Department of Homeland Security; Kenneth Cuccinelli, in His Capacity as Purported Acting Director for United States Citizenship and Immigration Services, Respondents.
• Court: U.S. District Court — Eastern District of Virginia

439 F.Supp.3d 632

JOSHUA M., Petitioner,

v.William BARR, in His Official Capacity as the Attorney General of the United States; Chad Wolf, in His Official Capacity as Acting Secretary for the United States Department of Homeland Security; Kenneth Cuccinelli, in His Capacity as PurportedActing Director for United States Citizenship and Immigration Services, Respondents.

Civil Action No. 3:19cv770

United States District Court, E.D. Virginia, Richmond Division.

Signed February 20, 2020

Michael Richard Sklaire, Michael Adams Hass, Greenberg Traurig LLP, McLean, VA, Alexandra Lee Rizio, Safe Passage Project, Gregory Paul Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, for Petitioner.

Jonathan Holland Hambrick, Jonathan Tyler Lucier, Office of the U.S. Attorney, Richmond, VA, for Respondents.

MEMORANDUM OPINION

M. Hannah Lauck, United States District JudgePetitioner Joshua M., a native of Honduras to whom the United States has granted Special Immigrant Juvenile status, has filed a 28 U.S.C. § 2241 habeas petition challenging his removal order and pending deportation.His petition implicates the cross-section between the Executive, Legislative, and Judicial branches, and raises questions regarding how the judicial branch may proceed when the executive branch has detained and ordered removed a person that has received a special legal status in accordance with statutes that the legislative branch enacted.Ultimately, Joshua's success in prevailing against this motion to dismiss turns on his singular (and rarely evaluated by courts) immigration status: he is a Special Immigrant Juvenile.To explain this Court's resolution, this memorandum opinion considers various statutory frameworks set forth in the Immigration and Nationality Act together with complex questions of constitutional law.

After holding a hearing, the Court now addresses Petitioner's Motion for a Temporary Restraining Order, (ECF No. 5), § 2241 Habeas Petition,¹(" § 2241 Pet.," ECF No. 1), and RespondentWilliam Barr, Kevin McAleenan,² and Kenneth Cuccinelli's ("Respondents")Motion to Dismiss for lack of jurisdiction, (ECF No. 20).Respondents filed a response in opposition to the Motion for a Temporary Restraining Order.(Resp., ECF No. 22.)Joshua filed a response in opposition to the Motion to Dismiss, ("Opp'n," ECF No. 25), and a reply to Respondents' response, (ECF No. 26).Respondents replied.(ECF No. 27.)With leave from the Court, Amicus Curiae filed a brief³("Amicus Br.," ECF No. 33), to which Respondents filed a response, (ECF No. 41), and Amici replied, (ECF No. 45).For the reasons articulated below, the Court finds that it has jurisdiction and will deny the Motion to Dismiss.

I.Factual Background

To understand the legal issues raised in Joshua's § 2241 Petition, the Court reviews Joshua's childhood in Honduras, his arrival in the United States, the state court orders he acquired in New York to support his Special Immigrant Juvenile ("SIJ") status, and the underlying immigration proceedings leading to his order of removal.

A. Joshua's Parents Abandon Him in Honduras At Age Two; He Then Experiences Gang Threats and Attacks Even After Moving to Escape Them

For purposes of this Motion, Respondents do not dispute Joshua's familial history or the factual allegations in his § 2241 Petition.(Dec. 10, 2019 Transcript ("Tr.") 52–53, ECF No. 39.)In this Motion to Dismiss, the Court assumes the truth of the facts alleged by Joshua.Kerns v. United States , 585 F.3d 187, 192(4th Cir.2009).

Joshua was born in Honduras in May 1998.When he was two years old, Joshua's mother left him to come to the United States.( § 2241 Pet. Ex. 5"Joshua Affidavit" 7, ECF No. 1–5.)Before his mother left, Joshua's father had also abandoned him to come to the United States.(Id. )After being deserted by his parents as a toddler, Joshua lived with his maternal aunt in San Pedro Sula, Cortes, Honduras.(Id. )

When Joshua became a teenager, a Honduran gang started to threaten him and his aunt.(Id. )The gang told Joshua that he"had to join the gang because [he] lived in their neighborhood and because [his] aunt did not pay the rent."(Id. )The gang threatened to kill Joshua if he did not join them.(Id. )The gang members started to physically harm Joshua.(Id. 8.)"On one occasion, a gang member cut [Joshua] with a knife on [his] left arm."(Id. 8.)Joshua still bears a scar from this attack.(Id. )

Joshua continued to experience substantial violence and trauma at the hands of the gang.In 2011, when Joshua was approximately thirteen years old, gang members surrounded Joshua and his friends and started throwing firecrackers at them.(Id. )A firecracker landed in Joshua's right ear, causing him partial hearing loss.(Id. )

In 2012, gang members killed one of Joshua's friends, Dirke Garcia.(Id. )The gang wanted Dirke to join their ranks, but he refused.(Id. )Dirke was found dead in the river, apparently "beaten to death."(Id. )

In 2013, roughly around age fifteen, Joshua learned that his aunt's husband was physically abusing her.(Id. )Eventually, his aunt left her abusive spouse and she and Joshua moved to Trujillo, Hondruas.(Id. )After moving to Trujillo, the gang continued to threaten Joshua and shot at the house where he and his aunt lived.(Id. 9.)Joshua claims that the gang is still looking for him and that his family in Honduras continues to receive threats.(Id. )

B.Joshua Enters the United States as an Unaccompanied Minor

In May 2014, Joshua left Honduras and entered the United States as an "Unaccompanied Alien Child."( § 2241 Pet. Ex. 4"I-589 Application" 2, ECF No. 1–4;§ 2241 Pet., Ex. 7"Motion to Reopen" 2, ECF No. 1–7.)Immigration officials released him to family members in New York.(Mot. Reopen 2.)Despite his efforts, Joshua did not reunite with his parents because of their substance abuse and physical abuse, but he ultimately found a home with an uncle ("Credy") and lived with him in the Bronx.(Id. 2–3.)

C.New York Family Court Appoints a Legal Guardian for Joshua and Makes a Special Finding that it is not in Joshua's Best Interest to be Removed from the United States

In August 2017, Joshua, at age nineteen, filed a petition for guardianship and a motion for special findings with the Bronx County Family Court in New York ("New York Family Court").(Mot. Reopen 3, ECF No. 1–7;J. Stip. R., ECFNo. 40–2.)On January 23, 2019, the New York Family Court issued an order finding that Joshua could not reunite with his parents because his father abused him "by routinely becoming intoxicated and hitting Joshua and throwing household objects at him," neglected "him by regularly abusing alcohol in Joshua's presence," and abandoned him "by failing to provide for him financially or emotionally his entire life and by kicking Joshua out of his home."(Id. 13.)The New York Family Court similarly found that Joshua's mother abandoned him "by failing to provide for him financially or emotionally his entire life and by choosing to live in a home with her abusive husband where Joshua is not welcome," and neglected him by "allowing him to be exposed to violent physical abuse against her and Joshua's half-siblings by her husband, Candido Martinez Gomez."(Id. )As a result, the New York Family Court held that:

It is not in Joshua's best interest to be removed from the United States and returned to Honduras, his country of nationality, because he does not have an adequate and secure home in Honduras that would guarantee his safety, happiness and hopes for the future.Gang members have sworn to kill Joshua should he return.Both his father and his mother are incapable of caring for him and he would be at risk of further abuse, abandonment, and neglect at his parents' hands.

(Id. 14.)That same day, the New York Family Court appointed Credy, Joshua's uncle, as his legal guardian.(Id. 15.)The New York Family Court ordered that the appointment "shall last until [Joshua's] 21^st birthday, since the subject is over 18 and has consented to the appointment until he/she reaches the age of 21."(Id. )

On February 12, 2019, three weeks after receiving the New York Family Court order, Joshua, then twenty-years-old, applied for Special Immigrant Juvenile ("SIJ") status by filing an I-360 Petition.⁴(Mot. Reopen 3.)In 2018, however, the United States Citizenship and Immigration Services ("USCIS") adopted a new policy in which the agency refused to recognize the eligibility for SIJ status of juvenile immigrants between the ages of eighteen and twenty-one.SeeR.F.M. v. Nielsen , 365 F. Supp. 3d 350(S.D.N.Y.2019).As a result, USCIS was not approving petitions, like Joshua's petition, from eligible SIJ applicants who were over the age of eighteen but under twenty-one.

D.Pursuant to R.F.M. v. Nielsen , 365 F. Supp. 3d 350(S.D. N.Y.2019), a Class Action Lawsuit in Federal Court, Joshua Receives Special Immigrant Juvenile Status

In 2018, young immigrants filed a class action lawsuit in the United States District Court for the Southern District of New York challenging USCIS's new policy regarding the eligibility of SIJ applicants between ages eighteen and twenty-one as arbitrary and capricious.On March 15, 2019, one month after Joshua filed his I-360 Petition, the Southern District of New York agreed with the plaintiffs and found that

[i]t is plain that the [Department of Homeland Security and USCIS], contrary to their prior practice, and in contravention of federal law, are now following a policy whereby the New York Family Court cannot issue the necessary findings to juvenile immigrants between the ages of eighteen and twenty-one to enable them to obtain SIJ status.That effectively precludes those immigrants in New York State from obtaining SIJ status despite the fact that the immigration statute otherwise provides that relief.If the immigration laws are to be changed in that way, the change must come from Congress and not from the immigration

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