Lopez v. Sessions
| Decision Date | 12 June 2018 |
| Docket Number | 18 Civ. 4189 (RWS) |
| Parties | RAMON ALBERTO AREVALO LOPEZ, Petitioner, v. JEFFERSON B. SESSIONS III, et al., Respondents |
| Court | U.S. District Court — Southern District of New York |
APPEARANCES:
Attorneys for Petitioner
199 Water Street, 3rd Floor
New York, NY 11201
By: Sarah T. Gillman, Esq.
Gregory P. Copeland, Esq.
GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007
By: Rachael L. Doud, Esq.
Michael J. Byars, Esq.
Sweet, D.J.
Petitioner Ramon Alberto Arevalo Lopez ("Petitioner," "Arevalo Lopez" or "Lopez") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, 28 U.S.C § 1651, and Article 1 of the U.S. Constitution, arising out of his detention of over 200 days by the Respondents, the Attorney General of the United States, the Secretary of Homeland Security, the New York Field Office Director of the United States Immigration and Customs Enforcement ("ICE"), the Director of the Executive Office for Immigration Review ("EOIR"), and the United States Department of Homeland Security ("DHS") (collectively, the "Respondents"). Based upon the facts and conclusions set forth below, the writ of habeas corpus is granted, and Arevalo Lopez is released to the legal custody of Department of Health and Human Services ("HHS"), pursuant to the Sponsor Care Agreement entered into by the Respondents and Rose America Lopez Lopez ("Lopez Lopez"), the Petitioner's mother.
The principles controlling the outcome of the instant petition are those stated by the Court when addressing new citizens upon their naturalization, that "ours is a government of laws, not of men," and that personal liberty is guaranteed by the great writ of habeas corpus, which "secures every man here,alien or citizen, against everything which is not law, whatever shape it may assume."1 These principles are applied to remedy what the Court perceives as a lacuna in the statutory scheme controlling the admission and deportation of minor aliens who attain majority after entering the country.
While this action is one of first impression, our sister courts have provided considerable insight, having adjudicated matters involving related, though distinguishable, facts. See Ramirez v. U.S. Immigration and Customs Enforcement, No. 18 Civ. 508 (RC), 2018 WL 1882861 (D.D.C. April 18, 2018) (); Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017) ().
On May 10, 2018, the Petitioner filed his petition (the "Petition") and an order to show cause seeking a hearing on the Petition. The Petition set forth the facts surrounding the arrival of Arevalo Lopez at age 17 in the United States on December 8, 2016, his detention upon arrival, his release on January 7, 2017 to the custody of his mother as an Unaccompanied Alien Child ("UAC"), his rearrest on October 24, 2017 and detention in the Bergen County Jail to date. The Petition alleges seven causes of action, including: violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2)(C), by disregarding the requirements of 8 U.S.C. § 1232(a)(2)(b); violation of the Fourth Amendment by unreasonably seizing Petitioner; violation of the Due Process Clause of the Fifth Amendment by failing to provide procedural protections; violation of the Due Process Clause of the Fifth Amendment by detaining Petitioner without review; violation of the Due Process Clause of the Fifth Amendment by engaging in an arbitrary abuse of power; violation of the Due Process Clause ofthe Fifth Amendment by detaining Petitioner with a lack of probable cause; and violation of the Fifth Amendment by the denial of a right to bail.
The Respondents' return was filed on May 21, 2018, and a hearing was held on May 24, 2018, at which time the Petition was marked fully submitted.
Arevalo Lopez is a native citizen of El Salvador, born in March 1999. See Gov't Return Ex. A (Form I-213) at 1. On December 8, 2016, Arevalo Lopez arrived at the port of entry along the United States-Mexico border at Calexico, California Id. He had no visa or other document that would permit his admission into the United States. Id. at 2. Lopez told U.S. Customs & Border Protection ("CBP") agents that he wanted to travel to New York to live with his mother after fleeing gang threats in his home country. See Pet. Ex. 2, Asylum Application.
At the time of Arevalo Lopez's entry to the United States he was 17 years old and properly designated as a UAC by CBP. Pursuant to the Trafficking and Victims Protection Reauthorization Act ("TVPRA"), Arevalo Lopez was transferred tothe custody of the Office of Refugee Resettlement ("ORR"), which is an office within the HHS. See 8 U.S.C. § 1232(b)(3), 6 U.S.C. § 279; see Pet. Ex. 3, ORR Verification Letter. Lopez lived with his mother, her partner, and his older brother, Balmore Alexander Reyes Lopez, in Huntington Station, NY until his detention on October 24, 2017.
Respondent Jefferson B. Sessions III is named in his official capacity as the Attorney General of the United States (the "Attorney General"). In this capacity, he is responsible for the administration of the immigration laws as exercised by EOIR. Respondent Kirstjen Nielsen is named in her official capacity as Secretary of Homeland Security in the DHS (the "Secretary"). In this capacity, she is responsible for the administration of the immigration laws. Respondent Thomas Decker is named in his official capacity as the Field Office Director of the New York Field Office for ICE within the DHS (the "Director"). In this capacity, he is responsible for the administration of immigration laws and the execution of detention and removal determinations and is a legal custodian of Petitioner.
Respondent James McHenry is named in his official capacity as Acting Director of the EOIR (the "Acting Director").In this capacity, he is responsible for the administration of the immigration laws pursuant to 8 C.F.R. § 1003.0(b)(1). He is responsible for the direction and supervision of the Office of the Chief Immigration Judge, including the Immigration Courts at 26 Federal Plaza. Respondent DHS is the federal agency responsible for enforcing Petitioner's continued detention pending his removal proceedings.
After his arrival at Calexico, on December 9, 2016, CBP issued a Notice to Appear (the "Notice") placing Arevalo Lopez in removal proceedings and charging him as removable, pursuant to Immigration and Nationality Act ("INA") § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an arriving alien who lacked a valid visa. Gov't Return Ex. B. Notice to Appear. Because Arevalo Lopez was under eighteen years old, CBP designated him a UAC and turned him over to ORR, an office within HHS that is responsible for the care and custody of UACs. Gov't Return Ex. A; Petition Ex. 3. On January 7, 2017, ORR released Arevalo Lopez into the custody of his mother in New York pursuant to the Flores Settlement, 8 U.S.C. § 1232(b)(3) of the TVPRA and 6 U.S.C. § 279 (the "Sponsorship Agreement").
For over ten months without incident, Arevalo Lopez lived with his mother, her partner, and his older brother, Balmore Alexander Reyes Lopez, in Huntington Station, New York. He also attended the 9th grade at the Huntington Station High School. See Pet. Ex. 1, School Verification Letter. In March of 2017, Arevalo Lopez turned eighteen while living with his mother in Huntington Station, New York. See Gov't Return Ex. A (Form I-213). Arevalo Lopez has no criminal history; he has never been charged with a crime in this country or any other. See Pet. at 2.
Arevalo Lopez was placed in immigration removal proceedings and attended all of his court dates at 26 Federal Plaza, New York, NY prior to his detention by ICE, on October 24, 2017. He attended his first master hearing at 26 Federal Plaza on August 10, 2017, where pleadings were conducted and his previous counsel indicated that she would be filing a guardianship petition in the Family Court to begin the process for Special Immigrant Juvenile Status and was considering applying for asylum. His next appearance before the Immigration Court at 26 Federal Plaza, New York, NY was scheduled to take place in January 2018. See Pet. Ex. 12, Notice to Appear TNTA").
Arevalo Lopez's mother filed a guardianship petition on his behalf in the Suffolk Family Court, which was granted on March 26, 2018. Id.
According to Petitioner's counsel, on October 24, 2017, ICE agents came to the Huntington house and asked him to come to 26 Federal Plaza for an interview Pet. Ex. 8. According to counsel, Petitioner was questioned about gang membership and affiliations, which he denied. After questioning he was arrested and has since been detained at the Bergen County Jail, in its general prison population. Pet. Ex. 10.
Little evidence has been adduced with respect to the Bergen County Jail and its population, programs, or facilities. According to his counsel, Petitioner is held in "in conditions identical to those of county jail inmates serving criminal sentences." Pet. at 1. In jail, Arevalo Lopez has suffered anxiety, fear, and inability to sleep. His development as an adolescent and his mental health has been affected. Pet. Ex. 9. Because of distance and resources, his mother has not been able to travel to the Bergen County Jail. Id.
No evidence has...
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