Saravia ex rel. A.H. v. Sessions, 18-15114

• Decision Date: 01 October 2018
• Docket Number: No. 18-15114,18-15114
• Citation: 905 F.3d 1137
• Parties: Ilsa SARAVIA, as next friend FOR A.H., a minor, and on her own behalf; Lorenza Gomez, as next friend for A.H., a minor, and on her own behalf; Wilfredo Velasquez, as next friend for F.E., a minor, and on his own behalf, Plaintiffs-Appellees, v. Jefferson B. SESSIONS III, Attorney General; James McHenry, Acting Director of the United States Executive Office for Immigration Review; Thomas E. Price, Secretary of the Department of Health and Human Services of the United States; Steven Wagner, Acting Assistant Secretary of the Administration for Children and Families; Scott Lloyd, Director of the Office of Refugee Resettlement of the United States; Elicia Smith, Federal Field Specialist of the Office of Refugee Resettlement of the United States; Elaine C. Duke, Acting Secretary of the Department of Homeland Security of the United States; Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement ; James McCament, Acting Director of U.S. Citizenship and Immigration Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

905 F.3d 1137

Ilsa SARAVIA, as next friend FOR A.H., a minor, and on her own behalf; Lorenza Gomez, as next friend for A.H., a minor, and on her own behalf; Wilfredo Velasquez, as next friend for F.E., a minor, and on his own behalf, Plaintiffs-Appellees,

v.Jefferson B. SESSIONS III, Attorney General; James McHenry, Acting Director of the United States Executive Office for Immigration Review; Thomas E. Price, Secretary of the Department of Health and Human Services of the United States; Steven Wagner, Acting Assistant Secretary of the Administration for Children and Families; Scott Lloyd, Director of the Office of Refugee Resettlement of the United States; Elicia Smith, Federal Field Specialist of the Office of Refugee Resettlement of the United States; Elaine C. Duke, Acting Secretary of the Department of Homeland Security of the United States; Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement ; James McCament, Acting Director of U.S. Citizenship and Immigration Services, Defendants-Appellants.

No. 18-15114

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2018 San Francisco, California

Filed October 1, 2018

Scott G. Stewart (argued), Attorney; Sarah B. Fabian and Nicole N. Murley, Senior Litigation Counsel; William C. Silvis, Assistant Director; William C. Peachey, Director, District Court Section; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Julia Harumi Mass (argued) and William S. Freeman, ACLU Foundation of Northern California, San Francisco, California; Martin S. Schenker, Nathaniel R. Cooper, Kathlyn A. Querubin, and Trevor M. Kempner, Cooley LLP, San Francisco, California; Judy Rabinovitz, ACLU Foundation Immigrants' Rights Project, New York, New York; Holly S. Cooper, Law Offices of Holly S. Cooper, Davis, California; Stephen B. Kang, ACLU Foundation Immigrants' Rights Project, San Francisco, California; for Plaintiffs-Appellees.

Before: Michael Daly Hawkins, Carlos T. Bea, and Andrew D. Hurwitz, Circuit Judges.

HURWITZ, Circuit Judge:

This case involves noncitizen minors who entered the United States unaccompanied by a parent or guardian and were then placed in the custody of the United States Office of Refugee Resettlement ("ORR"). ORR subsequently released the plaintiffs to a parent or sponsor after concluding that each minor was not dangerous to himself or the community nor a flight risk.

In 2017, the government arrested plaintiffs because of alleged gang membership and transferred them to secure juvenile detention facilities. The district court granted a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the gang allegations. We find no abuse of discretion and affirm.

I. Background

a. The Legal Framework

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), Pub. L. No. 110-457, 122 Stat. 5044 (2008), requires the Department of Homeland Security ("DHS") to transfer an unaccompanied noncitizen minor to the custody of the Secretary of Health and Human Services ("HHS") within 72 hours of determining that the minor is unaccompanied, absent "exceptional circumstances." 8 U.S.C. § 1232(b)(3). ORR then must ensure that the minor is "promptly placed in the least restrictive setting that is in the best interest of the child." Id. § 1232(c)(2)(A). "In making such placements, [ORR] may consider danger to self, danger to the community, and risk of flight." Id. The TVPRA requires that minors be placed either with a "suitable family member" or in an ORR facility.¹ Id. "A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense." Id.

In 1997, the United States entered into a settlement agreement with a plaintiff class in Flores v. Sessions , providing a minor in an ORR facility the right to a bond hearing before an immigration judge to challenge the agency's initial determination that the minor is a danger to the community. See Flores v. Sessions , 862 F.3d 863, 879 (9th Cir. 2017) ; see also ORR Guide § 2.9; Flores Settlement ¶ 24A.

b. Factual Background

In 2017, Immigration and Customs Enforcement ("ICE") agents and New York law enforcement officials executed "Operation Matador." The operation targeted undocumented immigrants with alleged connections to criminal gangs. After receiving allegations of gang affiliation from local law enforcement, ICE agents arrested the alleged gang members, relying on the agency’s general authority to arrest noncitizens subject to removal.

Among the minors arrested was A.H., who was born in Honduras in 2000 and entered the United States without inspection in April 2015. After requesting the assistance of immigration officials at the border, A.H. was initially detained in an ORR facility. After determining that A.H. was not a flight risk and posed no danger to himself or the community, ORR released him to live with his mother in New York.

In 2016, A.H. was charged in state juvenile court with menacing and possession of a weapon. The action was adjourned in contemplation of dismissal after A.H. completed a community service program. In March 2017, A.H. was charged in state court with possession of marijuana; this action was also adjourned in contemplation of dismissal.²

In June 2017, ICE officers arrested A.H. pursuant to a warrant that alleged removability. A.H. was flown to California and detained at the Yolo County Juvenile Detention Facility.³

c. Procedural Background

A.H. filed this action in the United States District Court for the Northern District of California in June 2017, seeking a writ of habeas corpus, a declaratory judgment, and injunctive relief.⁴ In August 2017, A.H. filed an amended habeas corpus petition and a putative class action complaint.⁵ Relevant to this appeal, the complaint alleged violation of the Fifth Amendment procedural due process rights of the putative class. A.H. then moved for a preliminary injunction and provisional class certification.

For purposes of ruling on the preliminary injunction motion, the district court provisionally certified

a class of noncitizen minors meeting the following criteria: (1) the noncitizen came to the country as an unaccompanied minor; (2) the noncitizen was previously detained in ORR custody and then released by ORR to a sponsor; (3) the noncitizen has been or will be rearrested by DHS on the basis of a removability warrant on or after April 1, 2017 on allegations of gang affiliation.⁶

Saravia , 280 F.Supp.3d at 1202. The court also granted a preliminary injunction, ordering a "prompt hearing" before a neutral decisionmaker, "in which the government must show that ... changed circumstances" justified the minors' detention. Id. at 1197, 1205–06. The injunction provided that the minor and sponsor "must receive notice of the basis for the rearrest," and the hearing must occur "within seven days of arrest, absent extraordinary circumstances," "in the jurisdiction where the minor has been arrested or where the minor lives." Id. The government timely appealed.⁷

II. Jurisdiction and Standard of Review

We have jurisdiction of this appeal from the grant of a preliminary injunction under 28 U.S.C. § 1292(a)(1). See Thalheimer v. City of San Diego , 645 F.3d 1109, 1115 (9th Cir. 2011). "We review a district court's decision to grant or deny a preliminary injunction for abuse of discretion." Id ."Abuse-of-discretion review is highly deferential to the district court." Microsoft Corp. v. Motorola, Inc. , 696 F.3d 872, 881 (9th Cir. 2012). We do not "determine the ultimate merits," but rather "determine only whether the district court correctly distilled the applicable rules of law and exercised permissible discretion in applying those rules to the facts at hand." Fyock v. Sunnyvale , 779 F.3d 991, 995 (9th Cir. 2015).

III. Discussion

The familiar Winter standard provides that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In this case, however, we need consider only the plaintiffs' likelihood of success on their Fifth Amendment claims; the government does not quarrel with the district court's application of the other Winter factors.

Applying Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the district court found the minors could likely show they were entitled to a hearing to challenge the allegations of gang involvement. Saravia , 280 F.Supp.3d at 1194–1201. The government has correctly conceded that Mathews supplies the governing legal standard, and that plaintiffs are entitled a hearing in which they can contest the allegations that led to their arrests, see Oral Argument at 1:55–2:09, 13:07–:30, Saravia v. Sessions (No. 18-15114), https://youtu.be/7wuOaflXrLk; see generally Hernandez v. Sessions , 872 F.3d 976, 981 (9th Cir. 2017) ("[T]he government's discretion to incarcerate non-citizens is always constrained by the requirements of due process.").⁸ ORR has previously determined that each of the class members was neither dangerous nor posed a flight risk, and that the TVPRA therefore mandated placement with a suitable sponsor. See 8 U.S.C. § 1232(c)(2)(A). Thus, we focus not on the minors' arrests, but the revocation of their previous placements under the TVPRA. See Goldberg v. Kelly , 397 U.S. 254, 261–62, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (recognizing that the denial or removal of statutory benefits is constrained by procedural due process); see also Logan v. Zimmerman...