Presently before the Court is Petitioner N.B.'s Verified Petition for Writ of Habeas Corpus ("Pet.," ECF No. 1). Also before the Court are the Return to the Petition ("Ret.," ECF Nos. 6, 10) filed by Respondents William P. Barr, Attorney General of the United States; Kevin K. McAleenan, Acting Secretary of the United States Department of Homeland Security ("DHS"); Mark A. Morgan, Acting Commissioner of the United States Customs and Border Protection ("CBP"); Matthew T. Albence, Acting Director of Immigration and Customs Enforcement ("ICE"); Dr. Stewart D. Smith, Assistant Director for ICE Health Services Corps ("IHSC"); Fred Figueroa, Warden of the Otay Mesa Detention Center; Oliver Castaneda, Deportation Officer, Otay Mesa Detention Center; and CoreCivic, LLC, as well as Petitioner's corrected Verified Traverse ("Trav.," ECF No. 9), both filed in response to the Court's August 19, 2019 Order to Show Cause Pursuant to 28 U.S.C. § 2243. See generally ECF No. 5.
The Court finds this matter suitable for determination without oral argument pursuant to Civil Local Rule 7.1(d)(1) and without holding an evidentiary hearing pursuant to 28 U.S.C. § 2243. Having carefully considered the Parties' arguments, the evidence, and the law, the Court APPOINTS Hugo Ivan Salazar to serve as N.B.'s "next friend" pursuant to 28 U.S.C. § 2242 and PRELIMINARILY ENJOINS Respondents from further unlawfully detaining N.B. in custody with unrelated adults.
I. Legal Background
United States Magistrate Judge James P. Donohue provided a thorough overview of the legal framework relevant to the instant Petition in B.I.C. v. Asher, No. C16-132-MJP-JPD, 2016 WL 8672760 (W.D. Wash. Feb. 19, 2016):
Before the creation of DHS in 2002, the care and placement of unaccompanied alien children ("UAC") in the United States was the responsibility of the Office of Juvenile Affairs in the former Immigration and Naturalization Service ("INS"). See F.L. v. Thompson, 293 F. Supp. 2d 86, 96 (D.D.C. 2003). In 2002, INS's functions were split between the enforcement of federal immigration law, which was left to DHS, and the care of immigrant children, which was left to HHS. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002) ("HSA"). Those laws were amended again in 2008 through theWilliam Wilberforce Trafficking Victims Protection Act ("TVPRA"), further separating DHS's and HHS's functions by placing the care and custody of children under HHS's jurisdiction and clarifying the respective roles and responsibilities of the two agencies with respect to UACs.
A. The Homeland Security Act of 2002
With the enactment of the HSA, Congress created DHS and transferred most immigration functions formerly performed by INS to DHS and its components, including U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and ICE. See HSA; Department of Homeland Security Reorganization Plan Modification of January 30, 2003, H.R. Doc. No. 108-32 (2003) (also set forth as a note to 6 U.S.C. § 542). Notably, Congress transferred to [the Office of Refugee Resettlement ("ORR")] the responsibility for the care of any UAC "who [is] in Federal custody by reason of [his or her] immigration status." 6 U.S.C. §§ 279(a), (b)(1)(A). The HSA also transferred to ORR the responsibility for making all placement decisions for UACs, required ORR to coordinate these placement decisions with DHS, and required ORR to ensure that UACs are not released upon their own recognizance. See 6 U.S.C. §§ 279(b)(1)(C), (D), (b)(2).
B. The Trafficking Victims Protection Reauthorization Act of 2008
The TVPRA, which was signed into law on December 23, 2008, contains statutory protections relating to UACs and codified protections related to the processing and detention of UACs. The TVPRA built on the split of duties in the HSA and further requires that "the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services." 8 U.S.C. § 1232(b)(1). It also provides that in most instances, "any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child." 8 U.S.C. § 1232(b)(3).
The TVPRA makes clear that HHS is responsible for all placement decisions for UACs in its custody, and for conducting suitability assessments for those placements. 8 U.S.C. § 1232(c). It requires that UACs in HHS custody be "promptly placed in the least restrictive setting that is in the best interest of the child," and it provides guidelines for the reunification of UACs with their families by HHS. 8 U.S.C. § 1232(c)(2), (3).
The protections TVPRA affords UACs apply after the HHS, in consultation with DHS, determines that the applicant is indeed a child. 8 U.S.C. § 1232(b)(a). Importantly for this litigation, the TVPRA provides:
The Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, shall develop procedures to make a prompt determination of the age of an alien, which shall be used by the Secretary of Homeland Security and the Secretary of Health and Human Services for children in their respective custody. At a minimum, these procedures shall take into account multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the unaccompanied alien.
8 U.S.C. § 1232(b)(4) (emphasis added).
C. ORR's age determination procedures1
Pursuant to § 1232(b)(4), ORR developed age determination procedures for individuals without lawful immigration status. See Dkt. 3-2 (Children Entering the United States Unaccompanied: Section 1 (updated Oct. 5, 2015) ("ORR Guide")). The ORR Guide provides that "HHS may make age determinations of [UACs] when they are in HHS custody on a reasonable suspicion that a child in HHS custody is 18 years or older." Id. at 8 (ORR Guide § 1.6.1). When conducting age determinations, ORR case managers are directed to seek thefollowing evidence, but information from each category is not required: (1) documentation, such as official government-issued documents and other reliable records that indicate the UAC's date of birth; and (2) statements by individuals who can credibly attest to the age of the UAC, including the UAC (but generally, a UAC's uncorroborated declaration regarding age is not used as the sole basis for an age determination). Id. at 8 (ORR Guide § 1.6.2).
When other information is "inconclusive," case managers may use medical age assessment procedures, such as dental maturity assessments using radiographs. Id. The ORR Guide provides that a "medical professional experienced in age assessment method(s) must perform the examination, taking into account the individual's ethnic and genetic background." Id. The ORR Guide recognizes that "no medical assessment method can determine an exact age [so] best practice relies on the estimated probability that an individual is 18 or older." Id. "The examining doctor must submit a written report indicating the probability percentage that the individual is a minor or an adult . . . If an individual's estimated probability of being 18 or older is 75 percent or greater, ORR will refer the individual to DHS." Id.
B.I.C., 2016 WL 8672760, at *1-3 (all alterations but first in original) (emphasis in original) (footnotes omitted).
I. Factual and Procedural Background
N.B. is a citizen of the Republic of Guinea, Pet. ¶ 27; Resps.' Ex. (ECF No. 4-1) at 16, who speaks a tribal language known as Fella Minakakan and also French. Trav. ¶ 30(a). Having been threatened and fearing for his life, Resps.' Ex. at 3, 20, 23, N.B. decided to go to the United States, id. at 19, where his cousin lives. Id. at 18. On March 3, 2019, N.B. flew from Guinea to Ecuador. Id. at 2, 18. He then traveled by bus to Turbo, Colombia, id., and by foot to Panama. Id. at 2-3; 18. N.B. then bussed through Costa Rica, Nicaragua, Honduras, and Guatemala, id. at 3, 18, where he lost his Guinea passport. Id. at 2, 3, 19-20. N.B. then took a bus through Mexico, from Tapachula to Tijuana. Id. at 3, 18.
In Tijuana, N.B. stayed in a center with other migrants. Id. at 3, 18. N.B. heard from a non-government organization and from other migrants about the San Ysidro port of entry. Id. at 18. Although he did not hire an attorney before coming to the United States, a lawyer named Nicole Ramos from Al Otro Lado brought N.B. to San Ysidro. Id. at 3, 18-19; Trav. ¶ 30(e). The attorney told N.B. that N.B. could request asylum in the United States by claiming fear because of sexual orientation, political or religious affiliation, or fear of returning to Guinea. Resps.' Ex. at 3, 19.
During his travels from Guinea to Mexico, N.B. gave his date of birth as December 1992 on the advice of an older friend, Grand Balpe, who informed N.B. that he would be deported immediately or detained as a minor and held until he was an...
