by Kevin W. Bliss

In a class-action suit filed by minor immigrants held in federal detention centers alleging deprivations suffered there, the federal court for the Central District of California granted plaintiffs a preliminary injunction on August 30, 2022, requiring the federal Office of Refugee Resettlement (ORR) to provide specific relief to each subclass.

The suit was filed in February 2018, alleging violations of the William Wilberforce Trafficking Victims Protection Reauthorization Act and the First and Fifth Amendments of the United States Constitution, as well as a 25-year-old consent decree in a class-action involving immigrant minors still under the Court’s supervision. See: Flores v. Garland, USDC (C.D. Ca.), Case No. 85-4544 (1997).

In November 2018, the Court partially granted Defendants’ motion to dismiss just the claims involving violations of the Flores consent decree. At that time, the Court also granted Plaintiffs’ motion to certify five subclasses, including a “drug administration class” consisting of those “prescribed or administered one or more psychotropic medications without procedural safeguards” and a “disability class” consisting of those “who have or will have a behavioral, mental health, intellectual, and/or developmental disability as defined in 29 U.S.C. [section] 705, and who are or will be placed in a secure facility, medium-secure facility, or [RTC] because of such disabilities.”

The Court also created a “step-up class,” consisting of those “who are or will be placed in a secure facility, medium-secure facility, or [residential treatment center (RTC)]” for over 30 days “without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker regarding the grounds for such placement.”

The “unfit custodian class” consists of those minors “whom ORR is refusing or will refuse to release to parents or other available custodians within 30 days of the proposed custodian’s submission of a complete family reunification packet on the ground that the proposed custodian is or may be unfit.”

The “legal representation class” consists of “natives of non-contiguous countries and to whom ORR is impeding or will impede legal assistance in legal matters or proceedings involving their custody, placement, release, and/or administration of psychotropic drugs.” See: Lucas R. v. Azar, 2018 U.S. Dist. LEXIS 231794 (C.D. Cal.).

On December 22, 2020, Judge Dolly M. Gee held oral arguments in the Court on cross motions for summary judgment. Attorneys for the minor plaintiffs argued that placement in differing security level immigration facilities and decisions to “step-up” or increase the security level of a minor’s housing lacked proper due process representation, as did administering the children psychotropic medication without consent and failing to provide legal representation in appeals to denials of their sponsorship. The minors’ attorneys also contended that ORR had been cutting access for immigration minors to legal-service funds, further undermining their right to legal counsel and representation.

ORR and the federal Department of Health and Human Services (HHS) argued that these issues were previously covered under the Flores Settlement Agreement and that the minors’ liberty interests in housing and familial interaction were limited.

Though agreeing that ORR and HHS have made great strides in cooperating with attorneys for immigrant children to create more substantive due process rights, Judge Gee ultimately decided they had not gone far enough.

In a decision issued on March 11, 2022, the Court said ORR must create new specific policy criteria for placing an immigrant minor in secure or medium-secure facilities, complete with adversarial proceedings and adequate legal representation. Counsel for both the minors and their sponsors must be provided more information and input in pertinent proceedings, as well as when placing minors on psychotropic medication. Sponsors denied custody of minors must also be afforded more comprehensive appeal proceedings to ensure their rights are protected. See: Lucas R. v. Becerra, 2022 U.S. Dist. LEXIS 124773 (C.D. Cal.).

With its latest ruling, the Court enjoined Defendants to provide the “step-up class” specific policy changes and notice requirements, holding also that “ORR shall have the burden of proving by clear and convincing evidence that sufficient grounds exist for stepping up or continuing to hold a minor in a restrictive placement.”

For the “unfit custodian class,” notice with appeal provision must be provided to adult parents, step-parents of guardians (“Category 1”), as well as adult siblings and grandparents, plus other extended family members “who previously served as the minor’s primary caregiver” (“Category 2A”) or those who did not do so (“Category 2B”).

For the “legal representation class,” the Court enjoined ORR to provide a Notice of Placement to a minor’s counsel “no later than 48 hours after step-up” and again “every 30 days the minor remains in a restrictive placement.” Minors must be permitted assistance of counsel, though “at no cost to the federal government,” both “in presenting evidence relevant to step-up or step-down” and “with respect to release or the denial of release to a proposed sponsor.”

The class is represented by attorneys Carlos Holguin of the Center for Human Rights and Constitutional Law in Los Angeles; Carter C. White of the UC Davis Civil Rights Clinic; Crystal Adams and Brenda L. Shum of the National Center for Youth Law in Washington, DC; Holly S. Cooper and Jonathan P. Mulligan of the UC Davis School of Law, Immigration Law Clinic; Mary Kathryn Kelley and Jamie D. Robertson of Cooley LLP in San Diego; Poonam Juneja, Freya E. K. Pitts, Melissa Ann Adamson, Mishan Raini Wroe, and Neha Desai of the National Center for Youth Law in Oakland; Summer J. Wynn of Cooley Godward Kronish in San Diego; and Alexandra Rex Mayhugh and Rebecca L. Tarneja of Cooley LLP in Santa Monica, along with Jamie D. Robertson of the firm’s San Diego office and Michael J. McMahon of its office in Boston. See: Lucas R. v. Becerra, 2022 U.S. Dist. LEXIS 159757 (C.D. Cal.).

Subscribe today

Already a subscriber? Login

Related legal cases