Court: District Court, S.D. Illinois; June 27, 2018; Federal District Court
The lawsuit addresses the treatment of unaccompanied alien children (UAC) by the U.S. Government, specifically focusing on procedures following their apprehension by federal agencies like Immigration and Customs Enforcement (ICE). Under federal law, when UAC are apprehended, they must be transferred to the Office of Refugee Resettlement (ORR) within 72 hours, where ORR assumes responsibility for their care until they are reunited with family or placed elsewhere during immigration proceedings. ORR categorizes UAC into three types of licensed facilities: secure, staff-secure, and shelter care, each varying in restrictiveness and intended to provide educational and health services.
The ORR's responsibilities were established under the Homeland Security Act of 2002, and since then, they have managed over 175,000 UAC, adhering to child welfare principles and legal frameworks including the Flores Agreement and the Trafficking Victims Protection Reauthorization Act (TVPRA). The TVPRA specifically mandates that UAC be placed promptly in the least restrictive setting that serves their best interests, considering various risks associated with their detention, such as anxiety and depression.
The lawsuit challenges recent changes made in mid-2017 by the ORR's director, Scott Lloyd, who introduced a personal review requirement for release decisions involving UAC in more restrictive facilities. Plaintiffs argue that this added review step results in unnecessary delays in the release process, violating the Administrative Procedure Act, the TVPRA, and the Due Process Clause of the Fifth Amendment.
Lead Plaintiff L.V.M., a Unaccompanied Alien Child (UAC), initiates legal action against federal officials from the Office of Refugee Resettlement (ORR) including Scott Lloyd and others, seeking injunctive and declaratory relief, along with habeas corpus relief. This lawsuit specifically targets the ORR’s process for the timely placement of UAC in appropriate settings, excluding issues related to the separation of children from undocumented parents, lost contact with UAC, administration of psychotropic drugs, and notification practices regarding detention. The plaintiffs request class certification and a preliminary injunction, while the defendants seek dismissal. The Court conducted expedited discovery and heard oral arguments on June 7, 2018. The Court denied the defendants' motion to dismiss, granted the plaintiffs' motion for class certification, and partially granted their motion for a preliminary injunction. The Court found that the plaintiffs demonstrated plausible statutory and constitutional violations, showing irreparable injury and a likelihood of success on several claims. Specifically, the Court criticized the ORR’s director review policy implemented by Lloyd shortly after his appointment, which lacked a documented justification and was based on unverified news reports. This policy delayed UAC from reuniting with sponsors for at least an additional 35 days. Consequently, the Court ordered the ORR to vacate this policy. Historical context is provided, noting that UAC have historically faced detention and that a 1997 consent decree (Flores settlement) mandates their prompt release and efforts towards family reunification.
Since 2002, Congress has enacted two key statutes regarding the care of unaccompanied alien children (UAC): the Homeland Security Act (HSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA). The HSA transferred care authority to the Office of Refugee Resettlement (ORR), which aims to uphold child welfare values in UAC placements. The TVPRA mandates that ORR provide legal protections to UAC in its custody, requiring prompt placements in the least restrictive settings that serve the child's best interests. Although ORR has not established formal regulations under the TVPRA, it created an internal guide in 2015 detailing procedures for UAC care, affecting over 7,000 children, including 1,200 in New York.
UAC are placed in one of three facility types: secure, staff-secure, or shelter care, based on behavioral assessments. Most UAC are released to qualified sponsors, while those without sponsors may enter a long-term foster care program. The release process involves recommendations from ORR care providers to Federal Field Specialists (FFS), who can approve or deny releases after consultation with a third-party reviewer. Before January 20, 2017, release decisions were made quickly, typically within 30 to 90 days; however, post-administration change, this has extended to an average of seven to eight months.
Plaintiffs assert that delays stem from a new review policy implemented by ORR Director Scott Lloyd, which requires his personal approval for releases of UAC previously in secure or staff-secure facilities. This policy lacks transparency, as Lloyd does not disclose decision-making standards, granting him broad discretionary power over UAC releases. The policy has reportedly increased the reunification timeline significantly and has caused harm to UAC, including mental health deterioration. ORR has not provided substantive justification for this policy.
L.V.M., a 17-year-old asylum seeker from El Salvador, was arrested by ICE in 2017 due to an alleged gang sign incident at his school. Following his arrest, he was removed from his home and detained in a secure facility in Virginia for six weeks, then transferred to Children's Village, where he remained in ORR custody for over seven months until the filing of this action.
Defendants have filed a motion to dismiss the complaint, arguing that the plaintiffs failed to state a claim and that their actions are not subject to court review. They assert that even if reviewable, their actions do not violate the Administrative Procedure Act (APA), the Trafficking Victims Protection Reauthorization Act (TVPRA), or the Due Process Clause of the Fifth Amendment. The plaintiffs are seeking class certification for all children currently or previously in ORR custody in New York, and they request a preliminary injunction against the director review policy, aiming for expedited release processes for class members.
The court denies the motion to dismiss, grants class certification, and partially grants the motion for a preliminary injunction. The legal standard for a motion to dismiss requires the complaint to present sufficient factual matter to suggest a plausible claim for relief, with all factual allegations accepted as true. The plaintiffs argue that the ORR's director review policy results in unjustified delays in the release of unaccompanied minors, which they claim violates the APA, TVPRA, and the Fifth Amendment. The court finds that the challenged administrative actions are indeed reviewable under the APA, which generally allows for judicial review of final agency actions unless explicitly barred by statute or committed to agency discretion.
Challenged administrative actions by the Office of Refugee Resettlement (ORR) are classified as final agency actions, impacting the rights and obligations of ORR staff and plaintiffs. The director review policy mandates that the ORR prepare a review package for approval by Lloyd or a designee, requiring plaintiffs to wait for this approval before release. These actions are presumptively reviewable under the Administrative Procedure Act (APA). Although the APA restricts judicial review of actions committed to agency discretion, this exception is narrowly interpreted and does not apply here, as there are clear statutory standards governing ORR's actions regarding the placement of unaccompanied alien children (UAC). The Trafficking Victims Protection Reauthorization Act (TVPRA) imposes limits on ORR’s discretion, prohibiting arbitrary placement or prolonged detention of UAC. There is no indication of legislative intent to prevent judicial review of ORR's decisions. Consequently, the actions in question are reviewable under the APA. Plaintiffs have raised plausible claims that the director review policy violates both the APA and TVPRA, as the agency must provide a rational explanation and connection between the data and its decisions.
Plaintiffs assert three plausible claims against the director review policy, alleging violations of the Administrative Procedure Act (APA). Firstly, the policy was implemented without adequate investigation or justification, lacking factual or legal basis, and failing to define its goals, rendering it arbitrary and capricious. Secondly, the policy itself is deemed in violation of the APA due to Lloyd's lack of expertise in evaluating release decisions and the absence of clear decision-making criteria, leading to an unchecked and irrational exercise of discretion. Thirdly, the policy causes significant and unnecessary delays in the release of Plaintiffs, contradicting both the APA and the Trafficking Victims Protection Reauthorization Act (TVPRA), which mandates prompt placement in the least restrictive setting. The increased detention times for children under the Office of Refugee Resettlement (ORR) are attributed to both the director review process and delays in preliminary release recommendations. These systemic delays support a plausible claim of violation of the TVPRA. Additionally, although defendants argue for dismissal of the due process claim based on its fact-specific nature, the court finds the plaintiffs have made sufficient claims to warrant denial of the motion to dismiss, affirming the certification of the class.
Under Federal Rule of Civil Procedure 23(a), plaintiffs must meet four criteria for class certification: numerosity, commonality, typicality, and adequate representation. The plaintiffs seek certification for a class of children in ORR custody in New York with specific housing conditions. Defendants concede that numerosity and adequate representation are met, as the class exceeds 40 members and the representative party, L.V.M., has a strong interest in pursuing the claims without conflicting interests.
However, defendants challenge the commonality and typicality requirements, arguing that the administrative actions do not apply generally to the class. The Court finds that commonality is satisfied because there are several common legal and factual questions concerning the legality of the director review policy under the APA and TVPRA, and the legality of systemic delays in the release process. These questions are central to the claims and do not necessitate individual factual analyses, thereby fulfilling the commonality requirement. The discussion also emphasizes that the due process claim related to the director review policy and systemic delays presents common issues applicable to all class members.
The due process claim is based on standardized actions by the Office of Refugee Resettlement (ORR) that affect all potential class members uniformly, negating the need for individualized factual analyses. The Supreme Court's caution in Jennings v. Rodriguez regarding the certification of a 23(b)(2) class for due process claims does not apply in this case. The typicality requirement is met, as all plaintiffs’ claims stem from the same events and involve similar legal arguments regarding the defendants' actions. The defendants contend that typicality is lacking due to individualized decisions affecting the length of custody for one plaintiff, L.V.M. The Court disagrees, asserting that all claims arise from the ORR's lack of process for the director review policy and its systemic delays, indicating no factual variation among class members' claims.
Under Rule 23(b)(2), a class action is permissible if the opposing party's actions affect the class as a whole, allowing for collective injunctive or declaratory relief. The defendants argue that this rule is inappropriate for class certification for two reasons: the reasonableness of administrative actions varies by individual circumstances, and an injunction against the director review would not benefit the 21 class members ineligible for release due to lack of sponsors. The Court finds that the propriety of the administrative actions does not hinge on individual circumstances, as all claims relate solely to the defendants' conduct. A single injunction would provide relief to all class members, including those not currently eligible for release, by addressing both direct and indirect delays caused by the director review policy. Consequently, the Court concludes that the plaintiffs have satisfied the requirements of Rule 23(a) and Rule 23(b)(2), resulting in the granting of their motion for class certification.
Plaintiffs seek a preliminary injunction to vacate the ORR's director review policy and expedite the processing of reunification requests for class members. The motion is partially granted, with the ORR enjoined from implementing the director review policy until further court order.
To obtain a preliminary injunction, plaintiffs must demonstrate irreparable harm and either a likelihood of success on the merits or serious questions regarding the merits that favor the moving party. In cases involving government action in the public interest, a higher standard of proof is required, necessitating a showing of both irreparable injury and a likelihood of success.
The plaintiffs have convincingly shown that they will suffer irreparable harm without the requested relief, as prolonged detention adversely affects young children. The director review policy adds significant delays (at least 35 days) to the release process, contributing to an average detention of 242 days for the plaintiff class, far exceeding the overall average of 57 days in ORR custody. Expert testimony indicates that even short delays can lead to severe psychological consequences for minors, including trauma, depression, anxiety, and PTSD, which may persist even after release. The court finds these expert opinions credible and concludes that the delays caused by the director review policy are sufficient to inflict irreparable harm on the plaintiffs.
To obtain a preliminary injunction, Plaintiffs must demonstrate a likelihood of success on at least one of their claims, not all. They have shown a strong likelihood of success in contesting the director review policy, which is deemed arbitrary and capricious. Specifically, the policy was adopted shortly after Lloyd became the ORR director, based on unverified news reports and without reviewing relevant agency documents or considering its impact on unaccompanied alien children (UAC). This action contravenes the Administrative Procedure Act (APA), which prohibits decision-making based on personal preferences. Although agencies may exercise discretion, it must be bounded by reason and law. The Court expresses skepticism over Lloyd’s later claims that the policy was intended to improve accountability and oversight, finding no supporting evidence. The director review policy appears to prolong an already lengthy process without clear benefits, and the Court rejects Lloyd's retrospective justifications, emphasizing that such rationalizations are generally disfavored if they do not clarify the original decision-making record. Defendants failed to provide contemporaneous evidence regarding the policy's adoption or its intended outcomes.
The agency's failure to provide a minimal level of analysis renders its actions arbitrary and capricious, violating the Administrative Procedure Act (APA). The plaintiffs have demonstrated a strong likelihood of success on their claim that the director review policy was adopted through an arbitrary process and that the policy itself violates the APA. The Court finds no rational connection between the policy and the Office of Refugee Resettlement's (ORR) goal of promptly releasing unaccompanied alien children (UAC) to suitable sponsors. The absence of expertise and guidelines in the release decision-making process further contributes to its potential arbitrariness. Additionally, the policy imposes significant delays—over 35 days—on the release of UAC, which contradicts the TVPRA's mandate for prompt release to the least restrictive setting.
The balance of equities and public interest favors the plaintiffs, as terminating an unlawful practice cannot harm ORR, while plaintiffs would face irreparable harm if the injunction is denied. The Court sees no public interest in maintaining an unlawful practice. Plaintiffs seek two forms of injunctive relief: vacating the director review policy and expediting reunification processing. The Court grants the first request but denies the second, noting that Federal Rule of Civil Procedure 65(d) requires injunctions to be specific and detailed in their terms and reasons for issuance.
Injunctions must be narrowly tailored to address specific legal violations, as established in Patsy's Ital. Res. Inc. v. Banas. The court finds it appropriate to enjoin the director review policy, rejecting the defendants' suggestion to remand without vacatur. The court evaluates vacatur based on the seriousness of the agency's deficiencies and the potential disruption of interim changes. In this case, both factors favor vacatur; the director review policy violates the APA, unnecessarily prolongs the release process, and fails to align with the TVPRA's mandate for prompt placement of unaccompanied alien children (UAC) in the least restrictive settings. Vacatur is deemed to streamline the process rather than disrupt it. Conversely, the court deems an order for the Office of Refugee Resettlement (ORR) to expedite processing of reunification requests inappropriate, as it lacks specificity and merely directs a "hurry up" approach. The court concludes that any injunctive remedy must focus on the director review policy, leading to the granting of the motion for a preliminary injunction, the denial of the motion to dismiss the Complaint, and the granting of class certification. The director review policy is to be vacated until further court order, with the Clerk instructed to close pending motions. The definition of "unaccompanied alien child" is also provided, highlighting the criteria for this designation under U.S. law.
Plaintiffs filed habeas claims against Jeremy Kohomban, head of Children's Village, but all claims have been dismissed. President Trump's Executive Order from June 20, 2018, acknowledges the need to modify the Flores settlement, which relates to the treatment of unaccompanied children (UAC) in ORR custody. Plaintiffs argue that the director review policy is part of an anti-immigrant agenda, causing delays in UAC release and holding them in custody longer. Initially, Plaintiffs claimed the Trafficking Victims Protection Reauthorization Act (TVPRA) provided a separate cause of action; however, they now assert that TVPRA violations can be pursued under the Administrative Procedure Act (APA), which allows courts to set aside unlawful agency actions.
The Court agrees with this assertion and would certify a class of 24 UAC with sponsors, acknowledging that these members are eligible for director review. The Court finds that this class meets the requirements of Rule 23(b)(2) and Rule 23(a)(2) concerning numerosity, which considers factors like judicial economy and the financial resources of class members. The class action is deemed superior to individual lawsuits as all members face a common policy impact, lack sufficient means to litigate separately, and seek injunctive relief affecting future class members. Although there are factual disputes between Plaintiffs and Defendants that may necessitate witness testimony, both parties have agreed to resolve the claims based on a paper record, waiving the right to an evidentiary hearing, which is permissible when disputes can be resolved without it.
The Court is reviewing a motion for a preliminary injunction filed by the Plaintiffs under the Administrative Procedure Act (APA) and the Trafficking Victims Protection Reauthorization Act (TVPRA), excluding the due process claim. The review is conducted based on a paper record, without an evidentiary hearing. Reference is made to a deposition transcript of Scott Lloyd. In a 2017 ruling by a Federal court in San Francisco, immigration judges were instructed to evaluate the claims by ICE and ORR regarding gang involvement among certain Unaccompanied Alien Children (UAC). The judges found no basis for gang involvement in 27 out of 29 cases. Prior to his role as ORR Director, Scott Lloyd worked with the Knights of Columbus, a Catholic organization involved in charity and life insurance. During oral arguments on June 7, 2018, Plaintiffs' counsel sought to specify requested relief by suggesting the Defendants be directed to create a remedial plan and set a timeline for adjudicating a release packet. Although the Plaintiffs may be entitled to such relief, the current record is insufficient, necessitating further factual development before any relief can be granted.
