Ramirez v. U.S. Immigration & Customs Enforcement, Civil Action No.: 18-508 (RC)

• Citation: 471 F.Supp.3d 88
• Decision Date: 02 July 2020
• Docket Number: Civil Action No.: 18-508 (RC)
• Parties: Wilmer Garcia RAMIREZ, et al., Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

471 F.Supp.3d 88

Wilmer Garcia RAMIREZ, et al., Plaintiffs,

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

Civil Action No.: 18-508 (RC)

United States District Court, District of Columbia.

Signed July 2, 2020

Barack Echols, Erin Reynolds, Michael B. Slade, Pro Hac Vice, Amanda Jacobowski, Kirkland & Ellis LLP, Gianna Borroto, Ruben Loyo, Katherine E. Melloy Goettel, National Immigrant Justice Center, Stephen R. Patton, Kirkland & Ellis, Chicago, IL, Jonathan Fombonne, Orla P. O'Callaghan, Kirkland & Ellis LLP, Houston, TX, Paul L. Quincy, Tia T. Trout Perez, Britney Ann Lewis, Patrick T. Haney, Rebecca Wall Forrestal, Kirkland & Ellis LLP, Washington, DC, for Plaintiffs Sulma Hernandez Alfaro, Wilmer Garcia Ramirez.

Gianna Borroto, Katherine E. Melloy Goettel, Ruben Loyo, National Immigrant Justice Center, Michael B. Slade, Pro Hac Vice, Amanda Jacobowski, Stephen R. Patton, Kirkland & Ellis LLP, Chicago, IL, Jonathan Fombonne, Kirkland & Ellis LLP, Houston, TX, Tia T. Trout Perez, Kirkland & Ellis LLP, Washington, DC, for Plaintiff Ana P.

Cara Elizabeth Alsterberg, Christina Parascandola, Colin Abbott Kisor, Theo Nickerson, Evan Paul Schultz, Benjamin Jay Zeitlin, Kevin Charles Hirst, William Herrick Weiland, Yamileth G. Davila, United States Department of Justice, Washington, DC, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING LIABILITY

RUDOLPH CONTRERAS, United States District Judge

This case concerns alleged violations of the Administrative Procedure Act ("APA") by the U.S. Immigration and Customs Enforcement ("ICE" or "the Agency") in connection with ICE's processing of eighteen-year-olds who came to the United States as unaccompanied alien children ("UACs"). Plaintiffs—immigrant teenagers who entered the United States as UACs—bring this class action against ICE, the Acting Director of ICE, the Department of Homeland Security ("DHS"), and the Secretary of Homeland Security (collectively "Defendants" or "the Government"). When minors lacking immigration status arrive in the United States without parents or other guardians, they are placed in the custody of the Department of Health and Human Services, Office of Refugee Resettlement ("HHS" and "ORR"). If they are still in custody on their eighteenth birthday, the now-adult immigrants "age out" of HHS and ORR custody and are transferred to ICE custody. Immigrants who undergo this transfer from HHS to ORR are referred to by the parties as "age-outs" and a subset of these age-outs make up the plaintiff class in this case. A provision of a 2013 statute amending the Trafficking Victims Protection Reauthorization Act ("TVPRA")¹ codified at 8 U.S.C. § 1232(c)(2)(B), requires that when ICE receives custody of an age-out it must "consider placement in the least restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight." 8 U.S.C. § 1232(c)(2)(B). In short, the plaintiffs argue that a significant number of ICE field offices and officers automatically place many age-outs in adult detention settings without giving less-restrictive settings the consideration required.

In their Amended Complaint, plaintiffs allege that ICE's failure to consider the least restrictive placement violates the APA. In Count One, the Plaintiffs argue that it is arbitrary, capricious, or an abuse of discretion for ICE not to consider placement in the least restrictive setting. In Count Two, they argue that ICE is unlawfully withholding consideration of placement in the least restrictive setting and they ask the Court to compel the Agency to undertake such consideration. The Counts, though legally distinct, challenge the same conduct and both are focused on what ICE is actually doing with each age-out it encounters. Neither is about what official policy ICE might have written down. In both Counts, the Plaintiffs are alleging that ICE is not fulfilling its obligation to actually consider placement in the least restrictive setting for each age-out that comes into its custody.

The Court conducted a bench trial over the Course of eighteen days between December 2, 2019 and January 15, 2020. Following the trial, the parties submitted proposed findings of fact and conclusions of law, as well as subsequent briefs in opposition. The Court now makes its Findings of Fact and Conclusions of law, as required by Rule 52(a)(1) of the Federal Rules of Civil Procedure.

For the reasons discussed in detail below, the Court will enter judgment in favor of Plaintiffs. The statute requires that ICE field officers take into account the statutory risk factors of danger to self, danger to community, and risk of flight, and that they consider placing age-outs in the least restrictive setting available. To consider placing an age-out in the least restrictive setting available, ICE officers must be able to identify what available setting would be least restrictive. This requires making an inquiry into available placements for age-outs that ICE officers throughout the country frequently do not undertake. ICE headquarters does not train officers on proper decisionmaking, and in fact gives guidance that is contrary to the statute in several ways. ICE does not require any number of practices that could facilitate compliance with the statute, but leaves it up to field officers’ discretion whether, for example, to review age-outs’ files in detail, to contact group homes and shelters, or to respond to communications from age-outs’ attorneys suggesting settings for them that are less restrictive than adult detention. Many officers choose not to take these steps, with the result that in many of ICE's largest field offices, age-outs are detained nearly automatically. In the most extreme cases, this means that ICE field officers refuse to release age-outs to organizational sponsors who have said they would be happy to take them in, see infra ¶ 187, or to eighteen-year-olds’ own parents living in the United States, infra ¶ 200, when nothing in the age-outs’ records indicated they posed a flight risk or a danger to themselves or to the public. These are not the decisionmaking processes that Congress required. By failing to make decisions in the way Congress dictated, and based on the factors Congress identified as relevant, ICE fails to fulfill its obligations under the statute and therefore violates the APA.

I. BACKGROUND

For clarity in following the Court's specific findings of fact and conclusions of law, the Court first provides a brief overview of the facts underlying this case and a summary of the case's procedural history and current posture.

A. Factual Overview

Most immigration enforcement functions in the United States are carried out by the DHS, in which ICE is housed. See 6 U.S.C. §§ 111, 251, 291. Congress established a different legal framework, however, for the care and custody of "unaccompanied alien children"—defined as children under age eighteen, who have no lawful immigration status in the United States and no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. § 279(g)(2). Except in certain exceptional circumstances, unaccompanied minors apprehended by immigration officials are transferred to the custody of HHS. 8 U.S.C. § 1232(b)(3). ORR, an office within a division of HHS, is thereafter responsible for, among other things, "coordinating and implementing the care and placement" of such children. 6 U.S.C. § 279(a) – (b)(1)(A). Congress has established that these children "shall be promptly placed in the least restrictive setting that is in the best interest of the child" and that "[i]n making such placements, the Secretary [of HHS] may consider danger to self, danger to the community, and risk of flight." 8 U.S.C. § 1232(c)(2)(A).

HHS only has authority over the care and custody of immigrant children, however. See 6 U.S.C. § 279. And, of course, children do not stay children forever. Congress accounted for that fact of life, extending certain protections to newly adult immigrants who were formerly in the care and custody of HHS. Pursuant to 8 U.S.C. § 1232(c)(2)(B) :

If [an unaccompanied alien child in the custody of the Secretary of HHS] reaches 18 years of age and is transferred to the custody of the Secretary of Homeland Security, the Secretary [of DHS] shall consider placement in the lease restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight. Such aliens shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the alien's need for supervision, which may include placement of the alien with an individual or an organizational sponsor, or in a supervised group home.

Under this provision, DHS—that is to say, ICE—must "tak[e] into account" specified statutory factors and must "consider" placement in the least restrictive setting available for those who aged out of HHS's jurisdiction. See id. But, unlike unaccompanied minors, these young adults are not promised placement in the least restrictive setting. Compare 8 U.S.C. § 1232(c)(2)(A) ("shall promptly be placed"), with id. § 1232(c)(2)(B) ("shall consider placement").

B. Procedural History

Plaintiffs filed this lawsuit on March 5, 2018. Compl., ECF No. 1. The plaintiffs were three immigrant teenagers who had previously been held in ORR custody as unaccompanied alien children. See Mem. Op. Denying Defs.’ Mot. Dismiss and Granting Pls.’ Mot. for Class Cert. ("MTD and Class Cert. Op."), ECF No. 50 (citing First Am. Compl. ("Am. Compl.") ¶¶ 1, 33, 46, 61, ECF No. 21). Each turned eighteen, was transferred to ICE custody, and was placed in an adult detention facility, purportedly without receiving the statutorily mandated consideration of less restrictive placement options. Id. (citing Am. Compl. ¶¶ 1, 4, 13–15).

Plaintiffs assert two causes of action, both under the APA. First, pursuant to 5...