R.R. v. Orozco

• Decision Date: 30 June 2020
• Docket Number: Civ. No. 20-564 KG/GBW
• Parties: R.R., Petitioner, v. DORA OROZCO, in her official capacity as Warden of the Otero County Processing Center, et al., Respondents.
• Court: U.S. District Court — District of New Mexico

R.R., Petitioner, v. DORA OROZCO, in her official capacity as Warden of the Otero County Processing Center, et al., Respondents.

Civ. No. 20-564 KG/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 30, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Petitioner's Motion for Entry of a Temporary Restraining Order on his Petition for Writ of Habeas Corpus ("Motion"), (Doc. 4), filed June 10, 2020. Petitioner asks the Court to: (1) Order Petitioner's immediate removal from Immigration and Customs Enforcement's ("ICE") adult detention center and to place him with the Office of Refugee Resettlement ("ORR"); and (2) Enjoin ICE from applying an unlawful age determination which prevents Petitioner from securing rights as an unaccompanied alien child ("UAC"). Since Respondents received notice of Petitioner's Motion and filed a response opposing it, the Court will treat Petitioner's Motion as a request for a preliminary injunction. See Fed. R. Civ. P. 65; 13 Moore's Federal Practice § 65.31 (2020) ("[W]hen a temporary restraining order is sought on notice to the adverse party, it may be treated by the court as a motion for a preliminary injunction.").

This case was initially assigned to the Honorable Martha Vazquez. On June 10, 2020, Judge Vazquez ordered expedited briefing on the Motion. (Doc. 5). Pursuant to that order, on June 17, 2020, Respondents filed a Motion to Dismiss and Response in Opposition to Petitioner's Motion, (Doc. 10), and on June 22, 2020, Petitioner filed a Reply to the Motion, (Doc. 14). Also on June 22, 2020, this case was reassigned to the undersigned, and the Court granted Petitioner's Motion in part by ordering Petitioner immediately removed from ICE's adult detention center and placed into the custody of ORR to provide appropriate detention and education. (Doc. 16).¹ The Court further ordered that Petitioner shall be treated as a juvenile for purposes of detention and immigration proceedings until the Court decides whether Petitioner's age determination will be reviewed and enjoined. Id.

Having considered the parties' briefs, evidence submitted by the parties, the record of the case, and relevant law, the Court appoints Petitioner's attorneys as his "next friends" for purposes of representation in this matter under Federal Rule of Civil Procedure 17(c)(2), and grants the Motion in part as set forth below.

I. Background

Petitioner states he fled his native country, India, out of fear for his life and made his way to the United States after traveling through Azerbaijan, Armenia, Suriname, Guyana, Brazil, Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico. (Doc. 1) at 7. Petitioner entered the United States on April 6, 2020, at a place not designated as a port of entry and was apprehended by U.S. Border Patrol. (Doc. 1) at 4; (Doc. 10) at 3. Petitioner had no documents that would allow him to lawfully enter the United States and no identification documents, and he claimed his passport and phone were "stolen by the mafia in the Panamanian jungle." (Doc. 10) at 3. When he was apprehended, Petitioner claimed his date of birth was July 3, 2002. (Doc. 4) at 4; (Doc. 10-1) at 2, ¶ 9 (Declaration of Acting Assistant FieldOffice Director Danielle M. Hernandez) ("On April 6, 2020, [Petitioner] initially claimed his date of birth was July 3, 2002, when apprehended by U.S. Border Patrol, however, the agents processed [Petitioner] as an adult based on the information he provided during processing.").

On April 7, 2020, Petitioner was transferred to the custody of ICE pending removal proceedings. (Doc. 10-1) at 2, ¶ 5. Due to Petitioner's claim that he was a minor, ICE obtained information from the U.S. Visit and Immigrant Status Indicator Technology ("US VISIT"), which is a system that collects and analyzes biometric data such as fingerprints. Id. at 2, ¶ 7. The US VISIT data showed that on December 19, 2019, January 3, 2020, and January 18, 2020, Petitioner was documented as having a date of birth of April 25, 2000, and on January 21, 2020, Petitioner was documented as having a date of birth of April 25, 2001. Id. at 2, ¶ 8. Based on this information, ICE documented Petitioner's date of birth as April 25, 2000, on the Department of Homeland Security Form I-213. (Doc. 10) at 3-4; (Doc. 1-7).

On April 15, 2020, ICE requested a dental or skeletal age exam to assist in verifying Petitioner's age. (Doc. 10-1) at 2, ¶ 10. Because local dental offices were closed due to the COVID-19 pandemic, a bone density exam was completed by Southwest XRay on April 21, 2020. Id. The examination results are signed by Amy Maxwell, MD, DABR, and state in their entirety:

The stated chronological age of this male patient is 4 days less than 20 years. As per the standards of Greulich and Pyle, the skeletal age is at least 19 years (the oldest available standard in the reference manual). The growth plates are nearly all fused, with the exception of the distal radial epiphysis, where there is minimal residual visibility of the epiphyseal line. Of note, this can persist throughout much of the adult life.

(Doc. 1-5). One of Petitioner's family members provided ICE with a picture of a Government ID card from India ("Aadhar card") and a page out of a passport which indicate Petitioner's dateof birth is July 3, 2002. (Doc. 10-1) at 2, ¶ 11; (Doc. 1-3). ICE contacted an officer with the Consulate of India in Houston, who stated: "If the person in question is the same as per the photo in the attached copy of the passport, then the above details are right." (Doc. 10-1) at 3, ¶ 12. After considering "the totality of the evidence," ICE determined Petitioner was an adult. Id. at 3, ¶ 15.

On May 13, 2020, an Immigration Judge held a hearing at which Petitioner appeared via videoconference and a translator and counsel for both parties appeared via telephone. (Doc. 1) at 7.² At the hearing, Petitioner submitted a copy of his birth certificate, the Aadhaar card, and an Income Tax ID, and he testified as to his age and travel to the United States. Id.; (Doc. 1-3). Petitioner stated he provided a false date of birth when he arrived in Panama because he thought he would be kept in Panama or returned to India if he admitted he was a minor. Petitioner further testified that he did not know when he received the birth certificate. The Immigration Judge found Petitioner not credible because he used an earlier date of birth on three other occasions. He further found the birth certificate may be fraudulent because it does not include Petitioner's name in English or his parents' Aadhaar card numbers. Relying on the bone density exam and the date of birth Petitioner had given on three other occasions, the Immigration Judge found Petitioner was an adult and assigned him the date of birth on the Form I-213 (April 25, 2000). On June 9, 2019, the Immigration Judge denied Petitioner's application for asylum and ordered him removed to India. (Doc. 10-3).

In his Section 2241 Habeas Corpus Petition, Petitioner argues ICE and the Immigration Judge improperly determined he was an adult by relying on the skeletal age scan, the Form I-213, and the date of birth he gave in Panama. (Doc. 1). Petitioner states that as a result of his age determination he is ineligible to pursue Special Immigrant Juvenile Status (a path to permanent residency) and is ineligible for placement in the "least restrictive setting" under 8 U.S.C. § 1232(c)(2). Id. at 13-14. He also argues the Immigration Judge's credibility finding "is a near death knell" for any asylum claim. Id. at 14. Petitioner's Section 2241 Petition raises the following claims:

1. Unlawful placement in ICE custody based on an improper age determination, in violation of 8 U.S.C. §§ 1232(b)(4) and 1232(c)(2)(A);

2. Unlawful detention at the Otero County Processing Center because it does not provide separate accommodations for juveniles, in violation of 8 C.F.R. § 1236.3(d);

3. Violation of his substantive due process rights under the Fifth Amendment; and

4. Violation of his procedural due process rights under the Fifth Amendment

(Doc. 1) at 21-23. In his Motion for a Preliminary Injunction, Petitioner asks the Court to:

1. Order Petitioner's immediate removal from ICE's adult detention center and to place him with ORR to provide appropriate detention and education; and

2. Enjoin ICE from applying the unlawful age determination which prevents Petitioner from eligibility for:

a. Special Immigrant Juvenile Status under 8 U.S.C. § 1101(a)(25)(J);

b. Initial jurisdiction of his asylum claim with U.S. Citizenship and Immigration Services under 8 U.S.C. § 1158(b)(3)(C);

c. Physical placement with the Department of Health and Human Services pursuant to 8 U.S.C.§ 1232(b)(1);

d. The right to reunify with qualifying sponsors in the United States and be held in the least restrictive setting pursuant to 8 U.S.C. § 1232(c)(2); and

e. If no sponsor is available to receive Petitioner, placement in the least restrictive setting available on Petitioner's eighteenth birthday including release on his own recognizance. 8 U.S.C. § 1232(c)(2).

(Doc. 4) at 22.

On June 22, 2020, the Court found: (1) Petitioner is likely to prevail on the merits based on evidence presented regarding unreliability of skeletal age evidence and copies of Petitioner'sbirth certificate, Government of India Aadhaar card, and income tax department ID; (2) Petitioner would suffer irreparable harm from being held in an adult detention center as a minor and being prevented from seeking asylum as a minor if his age determination is found to be unlawful; and (3) the public interest and balance of equities weigh in favor of enjoining Respondents from detaining Petitioner with unrelated adults until Petitioner's challenge to his age determination is resolved. (Doc. 16). The Court granted Petitioner's Motion in part and ordered Petitioner removed from ICE's adult detention center and placed into the custody of ORR. The...