Santos ex rel. O.G.L.S. v. Smith

• Decision Date: 01 June 2017
• Docket Number: Civil Action. No.: 5:17–cv–00020
• Parties: Dilcia SANTOS, as next friend of O.G.L.S., a minor; and Dilcia Santos, in her individual capacity, Petitioners, v. Timothy J. SMITH, Executive Director, Shenandoah Valley Juvenile Center, et al., Respondents.
• Court: U.S. District Court — Western District of Virginia

260 F.Supp.3d 598

Dilcia SANTOS, as next friend of O.G.L.S., a minor; and Dilcia Santos, in her individual capacity, Petitioners,

v.Timothy J. SMITH, Executive Director, Shenandoah Valley Juvenile Center, et al., Respondents.

Civil Action. No.: 5:17–cv–00020

United States District Court, W.D. Virginia, Harrisonburg Division.

Signed June 1, 2017

Amy Elizabeth Walters, Angela A. Ciolfi, Legal Aid Justice Center, Charlottesville, VA, Rebecca Ruth Wolozin, Simon Y. Sandoval–Moshenberg, Legal Aid Justice Center, Falls Church, VA, Roxann E. Henry, Morrison & Foerster, LLP, Washington, DC, for Petitioners.

Katherine E. Melloy Goettel, U.S. Department of Justice, Chicago, IL, Sarah B. Fabian, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Jason Botkins, Litten & Sipe, L.L.P., Harrisonburg, VA, for Respondents.

MEMORANDUM OPINION

Elizabeth K. Dillon, United States District Judge

This case involves a petition for writ of habeas corpus brought under 28 U.S.C. § 2241. The petitioners are seventeen-year-old O.G.L.S. and his mother, Dilcia Santos. O.G.L.S., who is a citizen of Honduras, is currently in the care and custody of the Office of Refugee Resettlement, a division of the United States Department of Health and Human Services. He entered the United States without inspection on or around December 15, 2014, and was found by U.S. Border Patrol agents at the border in Brownsville, Texas. (Petition ¶¶ 13, 14, Dkt. No. 1; Mem. Supp. Pet. (Mem.) Ex. E, Dkt. No. 7.) At that time, he was determined to be an unaccompanied alien child (UAC), a determination that petitioners do not challenge. Consistent with the statutory scheme designed to house and process UACs, O.G.L.S. was transferred to the custody of ORR several days later and has been in ORR's care and custody since.

Within days of her son's arrival in the United States, Ms. Santos, who has lived in the United States for more than a decade, filed a petition with ORR, asking to be reunified with her son. ORR denied her petition and all of her subsequent requests for reconsideration. O.G.L.S. is currently being housed at the Shenandoah Valley Juvenile Center (SVJC), which is a secure facility in Staunton, Virginia, within this judicial district. Ms. Santos and O.G.L.S. allege that their procedural and substantive due process rights have been violated by respondents, and they seek O.G.L.S.'s immediate release from SVJC and ORR custody to the care of his mother.

As discussed herein, based on a number of different factors, the court concludes that O.G.L.S.'s procedural due process rights have been violated, and so the court orders his immediate release to his mother.

I. BACKGROUND

A. Factual Background¹

O.G.L.S. lived with his mother in Honduras until he was about five years old. He and his mother were both physically abused by his father while he was a young child. When O.G.L.S. was five, his mother fled Honduras and came to the United States, leaving him with relatives. In an affidavit, she testified that she left him in Honduras because she was "afraid the trip to the U.S. would be too difficult and dangerous for him at a young age" and because she knew that "some people don't survive." (Reply Ex. C, ¶ 16, Dkt. No. 25.) She now lives in Kentucky, is married, and takes care of O.G.L.S.'s three half-siblings, all of whom were born in the United States.

As respondents' counsel acknowledged at the hearing, anyone with knowledge of O.G.L.S.'s background would agree that he "has not had a very good chance at life yet." Indeed, he has experienced significant trauma in his short life. After his mother left Honduras, O.G.L.S. endured severe physical abuse and neglect at the hands of some of his relatives. By the time he was twelve years old, he was living occasionally with those relatives, but mostly on the streets or staying with friends, and he was often dependent on gangs for both protection and daily necessities. After a gang member befriended him and encouraged him to join the gang, that gang exerted significant coercion to get O.G.L.S. to join and stay in the gang, including physical violence against him and severe physical violence perpetrated against others in his presence. He has admitted to both using illegal drugs and selling drugs as part of his gang activity. Also, while in ORR custody, he described to his caseworker his involvement in other significant and serious criminal activity as part of that gang, although months later he recanted those statements. He has steadfastly maintained since then that he did not engage in the most serious of that conduct. Since coming to the United States, he has repeatedly and consistently told people that he wanted to leave the gang and flee Honduras, but that he was afraid to do so.

During the time he was in Honduras, he had regular (at least weekly) telephone contact with his mother. His mother also sent money for his support. (Reply Ex. C, Santos Aff. ¶ 17.) According to O.G.L.S., once his mother learned of the abuse he was suffering, she pleaded with her relatives to use other, non-physical means of discipline, but because she was not physically present, her pleas apparently had no effect. (Reply Ex. E, O.G.L.S. Aff. ¶ 10; see also Mem. Ex. N at 3 (home study evaluator reporting Ms. Santos's comments to the same effect).)²

When he was 14 years old, O.G.L.S. fled Honduras and entered the United States, planning to join his mother in Kentucky. He entered without inspection and was apprehended almost immediately. Because he entered the United States alone, he was considered a UAC, a minor with no lawful immigration status whose parents are unavailable "to provide care and physical custody." 6 U.S.C. § 279(g)(2)(C)(ii). UACs are required to be transferred within 72 hours to the care of ORR, and O.G.L.S. was transferred to ORR custody, where he has remained since.

In March 2015, O.G.L.S. made the disclosures referenced above concerning his criminal activities while part of the gang. As a result of these disclosures, ORR transferred him to a "staff-secure program," Heartland International Youth Center. One week later, he was transferred to SVJC Secure, a "secure program," where he has been since March 13, 2015. Two months later, O.G.L.S. recanted those earlier admissions—first to his mother and then to a counselor—and he has consistently maintained that he did not engage in that conduct. He also has submitted an affidavit in this case to that effect. (Reply Ex. E, O.G.L.S. Decl., ¶¶ 38–44, 50, 52, 57.) He has continued to maintain that his recantation is the truth and that his initial "confession" about his activities was not true.

Since he has been in ORR custody, O.G.L.S. has had some behavioral problems. Although there have been a number of "significant incident reports" (SIRs) that involved him, some of them involved his reports of his gang conduct or a concern over self-harm (which his clinician ultimately determined was not grounds for any serious concern). Still others involved incidents in which he was a victim of assaults by others or in which he avoided involvement in physical altercations or removed himself from them. Petitioners admit, though, that over the course of O.G.L.S.'s time in ORR custody, seven reports involved him in physical altercations with staff or other juveniles, although some of those were instigated by peers. (See Resp. Ex. 1, at 5, 13, 16, 27, 34–36, 54, Dkt. No. 21.)

One of these incidents also resulted in criminal charges being brought against O.G.L.S. in juvenile court, but the charges were later dismissed in their entirety. In the dismissal order, the state court noted its belief that O.G.L.S. was "adversely affected by 2 years in juvenile detention" and that "he is a law abiding asset to society."³ (Resp. Ex. 4, at 2.)

Ms. Santos filed a family reunification application with ORR on December 18, 2014, two days after her son was apprehended. (Mem. Ex. F.) She included a copy of his birth certificate, verifying that she was his mother. (Id. ) In response, ORR conducted a psychological evaluation of O.G.L.S. It also contracted for a home study of Ms. Santos's home, which resulted in a report dated March 3, 2015. (Mem. Ex. N.) That report recommended reunification, specifically noting that "Ms. Santos [and her husband] will be positive influences on minor, and that he should be released to their care." It recommended a safety/transition plan to address both the trauma in his home country and his admission of the significant criminal conduct (which he had not yet recanted), and it said that any concerns his psychiatrist had should be shared with Ms. Santos prior to his release.

Two days later, a brief update was added to the report that, despite his transfer to a higher-security facility, the "positive recommendation for release to [Ms. Santos] has not changed." The update recommended, though, that O.G.L.S.'s clinician at his new placement "assess when it is clinically appropriate" for him to be released to Ms. Santos and further recommended post-release services.

Despite the completion of the home study report in March 2015, the ORR did not issue a decision or respond to Ms. Santos's request for reunification until May 31, 2016, more than 17 months after her petition was filed, and more than 14 months after the home study was completed. (Mem. Ex. G.) The denial was a brief letter that stated in general terms the information that had been reviewed, and then gave three one-sentence reasons for the denial: that O.G.L.S. "poses a safety risk to the community"; that "he requires an environment with a high level of supervision and structure that [she is] unable to provide at this time"; and that Ms. Santos was "unable to identify a care plan that would ensure the care and supervision necessary" for his safety and well-being. (Id. )

In June 2016, Ms. Santos timely requested reconsideration (Mem. Ex. H), which was denied approximately four months later. The denial discussed some of the general legal...