Garcia Ramirez v. U.S. Immigration and Custom Enforcement ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILMER GARCIA RAMIREZ, et al., :
:
Plaintiffs. : Civil Action No.: 18-508 (RC)
:
v. : Re Document No.: 2
:
U.S. IMMIGRATION AND CUSTOMS :
ENFORCEMENT, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION
Plaintiffs—three immigrant teenagers who entered the United States without inspection
as unaccompanied minors—bring this putative class action, alleging that, upon reaching their
respective eighteenth birthdays, Defendants transferred them to adult detention facilities without
considering less restrictive placements in violation of 8 U.S.C. § 1232(c)(2)(B). Plaintiffs also
contend that Defendants routinely and systematically fail to abide by this statutory provision.
Presently before the Court is a motion for preliminary injunctive relief, which seeks to compel
Defendants to comply with the statutory mandate in placing Plaintiffs Wilmer Garcia Ramirez
and Sulma Hernandez Alfaro. For the reasons explained below, the Court grants the motion.
II. BACKGROUND
A. Statutory and Regulatory Framework
Most immigration enforcement functions are carried out by the Department of Homeland
Security (“DHS”), in which Immigration and Customs Enforcement (“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
exceptional circumstances, unaccompanied minors apprehended by immigration officials are
transferred to the custody of the Department of Health and Human Services (“HHS”). 8 U.S.C. §
1232(b)(3). The Office of Refugee Resettlement (“ORR”), 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 least 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 must “tak[e] into account” specified statutory factors and must
“consider” placement in the least restrictive setting for those who aged out of HHS’s jurisdiction.
See id. But, unlike unaccompanied minors, these individuals are not promised placement in the
least restrictive setting. Compare 8 U.S.C. § 1232(c)(2)(A), with 8 U.S.C. § 1232(c)(2)(B).
B. Factual Background and Procedural History
Plaintiffs in this case are three immigrant teenagers who were previously held in ORR
custody as unaccompanied alien children. First Am. Compl. ¶¶ 1, 33, 46, 61, ECF No. 21. Upon
turning eighteen, they were transferred to the custody of ICE and placed in adult detention
facilities, purportedly without receiving statutorily mandated consideration of less restrictive
placement options. See id. ¶¶ 1, 4, 13–15. They seek to represent a class of similarly situated
individuals. See id. ¶ 6. Two of the three Plaintiffs—Wilmer Garcia Ramirez and Sulma Mirian
Hernandez Alfaro—were the original plaintiffs in this case and are the focus of the motion for
preliminary injunctive relief presently before the Court. 1
According to Plaintiffs’ complaint, Wilmer Garcia Ramirez was born into poverty in
Guatemala in 1999. See id. ¶¶ 20–21. At six years old, he began working in his family’s fields,
cutting underbrush with a machete. Id. ¶ 21. By eight, he was laboring for nine or more hours
each day in other people’s fields. Id. ¶ 22. From ages nine to sixteen, Mr. Garcia Ramirez
worked at coffee plantations in Guatemala and Honduras for months at a time, where he endured
difficult working and living conditions. See id. ¶¶ 23–30. In March 2017, when he was
1
Plaintiffs initially sought a nationwide preliminary injunction, see Mem. P. & A. in
Supp. of Mot. Temp. Restraining Order & Prelim. Injunction at 3, 18–19 (requesting a
nationwide preliminary injunction), ECF No. 2-1, however, the Court limited its consideration of
the present motion to Mr. Garcia Ramirez and Ms. Hernandez Alfaro, the only two named
plaintiffs at the time that the motion for preliminary injunction was filed. See Tr. of Temp.
Restraining Order Mot. Hr’g (Mar. 8, 2018) at 37:11–19, ECF No. 19.
seventeen years old, Mr. Garcia Ramirez entered the United States without inspection in search
of a better life. See id. ¶ 31. After crossing the border, he was apprehended by U.S. Customs
and Border Protection officers. See id. ¶ 33. Upon learning that he was an unaccompanied alien
child, DHS officials transferred Mr. Garcia Ramirez to ORR custody. Id. ¶ 33.
While in ORR custody, Mr. Garcia Ramirez petitioned the Superior Court of Arizona to
declare him a dependent of the State due to his parent’s neglect in Guatemala. Id. ¶ 34. The
court granted the petition, finding that it was not in Mr. Garcia Ramirez’s best interest to be
returned to Guatemala. Id. ¶ 34; Order Regarding Child’s Eligibility for Special Immigrant
Juvenile Status as to Mother, Ex. C, ECF No. 2-4. Mr. Garcia Ramirez then filed a petition for
special immigration juvenile status (“SIJS”), seeking lawful permanent residency in the United
States based on the neglect finding. First Am. Compl. ¶ 35; Ex. B, ECF No. 2-3. That petition
remains pending. See First Am. Compl. ¶ 36.
The day before Mr. Garcia Ramirez turned eighteen years old, his attorney contacted an
ICE deportation officer to request that he be released on his own recognizance, citing the facts
that removal proceedings against him had been administratively closed, that he had plans to live
with a family friend in Pennsylvania, and that he had pending a SIJS petition. See Email from
Noriana C. Hermes (Sept. 22, 2017) at 7, Ex. D, ECF No. 20-4. The deportation officer denied
the request, asserting only that ICE intended to reopen removal proceedings. See Email from
Deportation Officer (Sept. 22, 2017) at 9, Ex. D, ECF No. 20-4. The next day, on Mr. Garcia
Ramirez’s eighteenth birthday, he was transferred from ORR custody to ICE custody. See First
Am. Compl. ¶ 38.
At an ICE field office in Phoenix, Arizona, officials determined that Mr. Garcia Ramirez
should be held without bond. See Decl. of Michael Leal (“Leal Decl.”) ¶ 6, ECF No. 20-5. The
next day, ICE transferred Mr. Garcia Ramirez to Eloy Detention Center (“EDC”), an adult
detention facility in Eloy, Arizona. Id. At EDC, detention officers utilized the Risk
Classification Assessment—a database tool that assists DHS officials in assessing whether an
alien who is not subject to mandatory detention poses a danger to the community or poses a
flight risk—to determine Mr. Garcia Ramirez’s custody classification level. Id. ¶ 7. Based in
part on the results of that assessment, officials classified him as a level 1 detainee—the lowest
custody level at EDC—and housed him with other level 1 or low level 2 detainees, who have no
criminal history or only a minor, non-violent criminal history. Id.Mr. Garcia Ramirez twice initiated processes for requesting reconsideration of his
placement in an adult detention facility. First, in November 2017, he requested a custody
redetermination hearing before an immigration judge. See Mot. for Custody Redetermination
Hearing, Ex. E at 9–12, ECF No. 20-5. A bond hearing was scheduled. See Notice of Custody
Redetermination Hearing in Immigration Proceedings, Ex. E at 13, ECF No. 20-5. Mr. Garcia
Ramirez later moved to vacate the hearing, however, explaining that a potential sponsor could no
longer assist with his bond. See Unopposed Mot. to Vacate Bond Hearing, Ex. E at 15, ECF No.
20-5.
Second, through counsel, Mr. Garcia Ramirez sent a letter to ICE in January 2018,
requesting release to the least restrictive setting available pursuant to 8 U.S.C. § 1232(c)(2)(B).
Letter from Néstor Allende-Asparó to Justin Laub (Jan. 5, 2018), Ex. E at 20–23, ECF No. 20-5;
Decl. of Néstor Allende-Asparó (“Allende-Asparó Decl.”) ¶ 6, Ex. A, ECF No. 23-1. Counsel
contends that he received no response to that letter. See Allende-Asparó Decl. ¶¶ 7–10. In the
course of this litigation, however, ICE produced a letter, dated January 23, 2018 and addressed to
Mr. Garcia Ramirez’s counsel, which purports to respond to counsel’s request. See Letter from
Albert E. Carter to Néstor Allende-Asparó (Jan. 23, 2018), Ex. E at 24, ECF No. 20-5.
Interpreting the request as a bid for “prosecutorial discretion in the form of release from
custody,” the ICE deputy field office director of the Phoenix Field Office denied the request on
the basis that “the totality of circumstances d[id] not support a favorable exercise of discretionary
authority in this case.” Id. According to Mr. Garcia Ramirez’s counsel, ICE did not discuss
alternatives to detention with him at any time before or after Mr. Garcia Ramirez’s eighteenth
birthday. Allende-Asparó Decl. ¶ 5. Mr. Garcia Ramirez remains detained at EDC. See First
Am. Compl. ¶ 38.
The other original plaintiff in this case is Sulma Hernandez Alfaro, who was born in 2000
in Honduras. Id. ¶ 41. In Honduras, she was subjected to multiple forms of abuse by members
of her father’s family, including and especially her uncle, who threatened her with death. Id. ¶
43. Because of the abuse that she suffered and the threats that she faced, Ms. Hernandez Alfaro
left Honduras and travelled to the United States, seeking safety. Id. ¶ 44. In September 2016,
she crossed into the United States without inspection. Id. ¶ 45. A Border Patrol unit
apprehended her and, after determining that she was an unaccompanied immigrant child,
transferred her to the custody of ORR. Id. ¶ 45.
ORR placed Ms. Hernandez Alfaro in a shelter for unaccompanied immigrant children in
San Benito, Texas. Id. ¶ 46. While in ORR custody, she was diagnosed with Post-Traumatic
Stress Disorder, which resulted from the abuse she suffered in Honduras. Id. ¶ 47. In November
2017, Ms. Hernandez Alfaro applied for asylum based on the abuse and harm she had
experienced. See Notice of Action, Ex. D, ECF No. 2-5; First Am. Compl. ¶ 48. That
application remains pending. See First Am. Compl. ¶ 48.
On January 16, 2018, just days before Ms. Hernandez Alfaro’s eighteenth birthday, an
ICE deportation officer emailed the shelter where she was being housed to confirm that she
would soon age out of ORR’s jurisdiction and “that there [were] no reunification plans, so [ICE]
c[ould] make arrangements to have her placed in the appropriate adult facility.” Email (Jan. 15,
2018), Ex. B at 9, ECF No. 20-2. A case manager for the shelter responded, explaining that
ORR had attempted several times to reunify Ms. Hernandez Alfaro with relatives, but that each
of the potential sponsors did not meet ORR sponsorship requirements. Email (Jan. 16, 2018),
Ex. B at 8, ECF No. 20-2; see also Decl. of Jose Cortez (“Cortez Decl.”) ¶ 20, ECF No. 20-2.
The email included a copy of a “Post 18 Plan” crafted for Ms. Hernandez Alfaro, which included
information about ORR’s unsuccessful reunification attempts. See Post 18 Safety Plan, Ex. B at
11, ECF No. 20-2; see also Cortez Decl. ¶ 21.
When Ms. Hernandez Alfaro turned eighteen, ORR transferred her to ICE’s custody.
First Am. Compl. ¶ 49. According to Supervisory Detention and Deportation Officer (“SDDO”
or “Officer”) Jose A. Cortez, on January 18, 2018, Deportation Officer Anthony Martinez
initiated an electronic risk classification assessment to assess whether to release, detain, or
consider alternatives to detention for Ms. Hernandez Alfaro. Cortez Decl. ¶ 22. Officer Cortez
contends that Ms. Hernandez Alfaro was determined to pose a high risk of absconding due to not
having a sponsor or fixed, permanent address in the United States that she had lived with for at
least six months. Id. Officer Martinez purportedly recommended that Ms. Hernandez Alfaro be
detained, a decision with which Mr. Cortez contends he agreed. Id. ¶ 23. DHS placed Ms.
Hernandez Alfaro at Port Isabel Detention Center (“PIDC”), an adult detention facility in Los
Fresnos, Texas. See First Am. Compl. ¶ 14.
Like Mr. Garcia Ramirez, Ms. Hernandez Alfaro requested changes in her state of
confinement. First, on February 2, 2018, Ms. Hernandez Alfaro’s counsel faxed a letter to
Deportation Officer Robert Cantu, requesting that she be released on her own recognizance. See
Letter from Rosemary Gonzalez to Robert Cantu (Feb. 2, 2018) (“2/2/18 Letter”), ECF No. 2-9;
Decl. of Rosemary Gonzalez (“Gonzalez Decl.”) ¶ 7, ECF No. 23-2. The letter mentioned the
special statutory protections afforded unaccompanied immigrant children and contended that Ms.
Hernandez Alfaro was neither a flight risk nor a danger to the community. 2/2/18 Letter at 3–4.
Counsel also asserted that Ms. Hernandez Alfaro’s placement in an adult detention facility had
worsened her post-traumatic stress symptoms. Id. Counsel presented an alternative to her
client’s present placement: La Posada Providencia, a transitional shelter that had agreed to take
in Ms. Hernandez Alfaro upon her release from the detention facility. See id. at 4; Letter from
Monica Pena-Rasmussen, Client Coordinator, La Posada Providencia (Jan. 17, 2018), ECF No.
2-10. According to counsel, she followed up with several calls to Ms. Hernandez Alfaro’s
deportation officer, however, her calls went unanswered. Gonzalez Decl. ¶¶ 8–9.
Five days later, Ms. Hernandez Alfaro’s counsel visited PIDC and met briefly with
Officer Cantu in the facility lobby. See Gonzalez Decl. ¶¶ 10–11; Decl. of Robert Cantu (“Cantu
Decl.”) ¶ 7, ECF No. 20-1. According to counsel, she mentioned her prior request for her
client’s release, noting that she had appended a letter of support from La Posada Providencia.
Gonzalez Decl. ¶ 11. Counsel also explained, among other things, that Ms. Hernandez Alfaro
had been classified as an unaccompanied alien minor upon her arrival, that she had applied for
asylum, and that she had already completed an asylum interview. Id. According to counsel,
during the lobby meeting, Officer Cantu stated that he had not reviewed the materials that she
had submitted on behalf of her client. Id. ¶ 12. Counsel also recalls that Officer Cantu rejected
La Posada Providencia as a placement option—contending that many individuals released to the
shelter abscond—and that Officer Cantu stated that he would not release Ms. Hernandez Alfaro
because she had no other family in the United States and he would only consider releasing her to
a family member. Id. ¶ 14. The Officer purportedly gave counsel no indication that he had
independently considered any less restrictive placements than adult detention for Ms. Hernandez
Alfaro. Id. ¶ 17.
While Officer Cantu agrees that he rejected La Posada Providencia as a placement option,
he otherwise depicts the conversation differently. See Cantu Decl. ¶¶ 6–7. He contends that he
verbally denied counsel’s request “after taking all relevant facts into consideration, including
[Ms. Hernandez Alfaro’s] illegal entry to the United States as an unaccompanied alien minor, her
current age, the copy of her birth certificate, her lack of criminal history, her lack of strong
family ties in the United States, the lack of a fixed, permanent address, the lack of a dependable
sponsor, and her pending application [for asylum].” Id. ¶ 8. According to Officer Cantu, he
reviewed a file that contained certain information about Ms. Hernandez Alfaro’s case, including
the letter from La Posada, before speaking with counsel and rejecting the request. See id. ¶¶ 10–
15.
Ms. Hernandez Alfaro next sought a change in her custody at a bond hearing before an
immigration judge in March 2018. See Mot. for Custody Redetermination, Ex. A at 8–10, ECF
No. 20-1. The immigration judge granted her request, ordering her release from custody under
bond of $10,000. See Order of the Immigration Judge with Respect to Custody, Ex. A at 32,
ECF No. 20-1. Ms. Hernandez Alfaro remains detained at PIDC. See First Am. Compl. ¶ 14.
Plaintiffs filed suit in March 2018, and, shortly after, requested a temporary restraining
order and preliminary injunction. See Compl., ECF No. 1; Mot. Temp. Restraining Order &
Prelim. Injunction, ECF No. 2. After a hearing held just three days after the motion was filed,
this Court denied the motion for a temporary restraining order, explaining that, given the dearth
of evidence on record, Plaintiffs had not met their burden of showing a substantial likelihood of
prevailing on the merits. Tr. of Temp. Restraining Order Mot. Hr’g (Mar. 8, 2018) at 37:1–9,
ECF No. 19. The Court also noted that Plaintiffs appeared to request a change in, rather than a
preservation of, the status quo, and that the relief Plaintiffs sought in the motion overlapped
substantially with the merits of their case. Tr. of Temp. Restraining Order Mot. Hr’g (Mar. 8,
2018) at 37:1–9. Subsequently, after being able to gather information about the respective
Plaintiffs’ claims, the Government has submitted written opposition to the Plaintiffs’ request for
injunctive relief. Plaintiffs’ motion for preliminary injunction is now ripe for consideration.
III. LEGAL STANDARDS
A. Administrative Procedure Act
Plaintiffs bring their claims pursuant to the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 101–913, which governs the conduct of federal administrative agencies. The APA
permits a court to “compel agency action unlawfully withheld or unreasonably delayed,” and to
“hold unlawful and set aside agency action, findings and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. The
APA provides for judicial review of all “final agency action for which there is no other adequate
remedy in court,” id. § 704, except when “statutes preclude judicial review” or the “agency
action is committed to agency discretion by law,” id. § 701(a).
B. Preliminary Injunction
“[A] preliminary injunction is an injunction to protect [the movant] from irreparable
injury and to preserve the court’s power to render a meaningful decision after a trial on the
merits.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting
11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures
§ 2947 (2d ed. 1992)). “[T]he decision to grant injunctive relief is a discretionary exercise of the
district court’s equitable powers.” John Doe Co. v. Consumer Fin. Prot. Bureau, 235 F. Supp.
3d 194, 201 (D.D.C. 2017) (quoting Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C.
Cir. 1989)). A preliminary injunction is an “extraordinary remedy,” and one is “never awarded
as of right.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To warrant
preliminary injunctive relief, the moving party “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 the equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
Of these factors, likelihood of success on the merits and irreparable harm are particularly crucial.
See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (reading Winter “to suggest if not to
hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary
injunction’” (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (2009)
(concurring opinion))); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297
(D.C. Cir. 2006) (“[A] movant must demonstrate at least some injury for a preliminary injunction
to issue, for the basis of injunctive relief in federal courts has always been irreparable harm.”
(internal citations and quotation marks omitted)).
IV. ANALYSIS
Plaintiffs assert, that when they turned eighteen years old and were transferred from HHS
custody to DHS custody, DHS placed them in adult detention facilities without considering less
restrictive placement options in violation of 8 U.S.C. § 1232(c)(2)(B). They seek preliminary
injunctive relief in the form of an order directing DHS to consider less restrictive placements for
Plaintiffs Wilmer Garcia Ramirez and Sulma Hernandez Alfaro. Defendants argue that Plaintiffs
have not shown that they are entitled to preliminary injunctive relief. The Court first considers
Defendants’ justiciability arguments, then addresses the merits of Plaintiffs’ motion. As
explained below, the Court finds no barriers to its review of this matter and concludes that
Plaintiffs have met their burden of establishing that preliminary injunctive relief is warranted.
A. Threshold Issues
Defendants lodge three threshold objections to this Court’s review of this case.
Defendants argue that (1) this suit is moot because Plaintiffs have already received the
consideration that they are due under the applicable statutory provision; (2) Plaintiffs cannot
point to “final agency action” subject to judicial review under the APA; and (3) Plaintiffs have
an adequate remedy in the form of bond hearings through which they may seek release from
detention and, thus, the APA provides no cause of action. The Court disagrees on all three
counts.
1. Mootness
Defendants first assert that Plaintiffs’ complaint is moot and that, accordingly, this Court
should dismiss the entire putative class action for lack of jurisdiction. See Defs.’ Opp’n at 13–
14, ECF No. 20. Defendants’ mootness argument hinges exclusively on their contention that
they have already discharged their obligation of “consider[ing]” less restrictive placements for
Plaintiffs as required by 8 U.S.C. § 1232(c)(2)(B). See Defs.’ Opp’n at 13–14. The Court
disagrees that the record provides any basis for a finding of mootness.
Article III of the Constitution permits federal courts to adjudicate only “actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). This limitation gives rise to the
doctrine of mootness. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). “A case
is moot when a party has already obtained all the relief that it has sought.” Schnitzler v. United
States, 761 F.3d 33, 37 (D.C. Cir. 2014) (internal citations and quotation marks omitted). Under
such circumstances, “events have so transpired that the decision [of the court] will neither
presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in
the future.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (internal
citation omitted). “As long as the parties have a concrete interest, however small, in the outcome
of the litigation, the case is not moot.” Campbell-Ewald Co., 136 S. Ct. at 669 (quoting Chafin
v. Chafin, 568 U.S. 165, 172 (2013)); see also Knox v. Serv. Emps. Int’l Union, Local 1000, 567
U.S. 298, 307 (2012) (“A case becomes moot only when it is impossible for a court to grant ‘any
effectual relief whatever’ to the prevailing party.” (quoting Erie v. Pap’s A.M., 529 U.S. 277,
287 (2000))). The D.C. Circuit has clarified that where “the court has the ‘power to effectuate a
partial remedy,’” that alone “is sufficient to prevent [a] case from being moot.” Sierra Club v.
U.S. Army Corps of Eng’rs, 803 F.3d 31, 43 (D.C. Cir. 2015) (quoting Church of Scientology of
Cal. v. United States, 506 U.S. 9, 13 (1992)). Furthermore, a “party’s prospects of success on a
claim are not pertinent to the mootness inquiry.” Looks Filmproduktionen GmbH v. CIA, 199 F.
Supp. 3d 153, 179 (D.D.C. 2016) (alterations and internal quotation marks omitted) (quoting
Schnitzler, 761 F.3d at 39).
Contrary to Defendants’ contentions, the present record provides no basis for a finding of
mootness. Focusing exclusively on the relief sought as to Plaintiffs Ramirez Garcia and
Hernandez Alfaro, Plaintiffs’ complaint requests that this Court (1) “[d]eclare that ICE’s failure
to place Plaintiffs . . . in the ‘least restrictive setting available’ violates 8 U.S.C. § 1232(c)(2)(B)
and 5 U.S.C. §§ 706(1) and 706(2)”; (2) “[d]eclare that ICE’s failure to make ‘alternative to
detention programs’ available to Plaintiffs . . . violates 8 U.S.C. § 1232(c)(2)(B) and 5 U.S.C. §§
706(1) and 706(2)”; (3) “[o]rder that ICE comply with 8 U.S.C. § 1232(c)(2)(B) by considering
Plaintiffs . . . for, and placing them in, the l[e]ast restrictive setting available after taking into
account each individual’s danger to self, danger to community, and risk of flight”; and (4)
“[o]rder that ICE comply with 8 U.S.C. § 1232(c)(2)(B) by allowing Plaintiffs . . . to participate
in alternative to detention programs utilizing a continuum of alternatives based on their need for
supervision, including placement with an individual or organizational sponsor, or in a supervised
group home.” 2 First Am. Compl. at 23; Compl. at 18–19, ECF No. 1. Defendants focus
narrowly on Plaintiffs’ third request in arguing that this case is moot. They fail to offer,
however, any hint of an argument that Plaintiffs have received any relief as to the other three
requests, and they offer no argument that awarding such relief would “accomplish nothing.”
Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008). The fact that Plaintiffs have not obtained all
the relief that they seek is alone sufficient to keep this case alive. See, e.g., Schnitzler, 761 F.3d
at 416–17 (reversing a district court’s dismissal of a pro se complaint because, among other
things, the district court had adopted too narrow a construction of the relief sought and failed to
recognize that plaintiff had not received full relief); Singh v. Carter, 185 F. Supp. 3d 11, 19
(D.D.C. 2016) (concluding that an offer of a “long-term religious accommodation” did not
render moot plaintiff’s request for a “permanent religious accommodation” because defendant
had not given plaintiff the entire relief sought).
Moreover, Defendants’ mootness argument fails as to Plaintiffs’ third request, too. With
regard to this claim, Defendants conflate merits questions about whether they have taken actions
required by 8 U.S.C. § 1232(c)(2)(B)—the subject of this dispute—with mootness questions
2
Plaintiffs sought this same relief with respect to the putative class of similarly situated
individuals.
about whether this Court can offer meaningful relief that would affect the rights and obligations
of the parties. Both the Supreme Court and the D.C. Circuit have cautioned that “prospects of
success” on a claim “are not pertinent to the mootness inquiry.” Schnitzler, 761 F.3d at 39 n.8
(quoting Chafin, 568 U.S. at 174 (internal quotation marks omitted)). Indeed, the Circuit has
explained that “[i]n considering possible mootness[, courts] assume that the plaintiffs would be
successful on the merits.” Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955 (D.C. Cir. 2016).
Here, a decision that this case is moot based on a finding that Defendants have complied with 8
U.S.C. § 1232(c)(2)(B) would run afoul of this principle. Cf. Muir v. Navy Fed. Credit Union,
529 F.3d 1100, 1106 (D.C. Cir. 2008) (“[W]hether a statute has been violated ‘is a question that
goes to the merits . . . and not to constitutional standing.’” (quoting La. Energy & Power Auth. v.
FERC, 141 F.3d 364, 367–68 (D.C. Cir. 1998)). Defendants’ mere assertion that the agency has
complied with a statutory mandate cannot suffice to divest this Court of jurisdiction to determine
whether it did so. See, e.g., Schnitzler, 761 F.3d at 39 (explaining that “whether or not the
government’s policy explanations are reasonable under the [APA] is a merits question, not a
question of the court’s jurisdiction”).
In any event, as explained in detail below, the Court disagrees that the evidence on record
shows that Defendants complied with the statutory provision. Thus, even if this Court could
consider the merits Plaintiffs’ claims in assessing whether this case is moot, it would not side
with Defendants. The record does not show that Defendants “consider[ed] placement in the least
restrictive setting available after taking into account . . . danger to self, danger to the community,
and risk of flight.” 8 U.S.C. § 1232(c)(2)(B). Accordingly, this Court concludes that there is no
mootness barrier to Plaintiffs’ suit.
2. Final Agency Action
Defendants next assert that “[t]he determination . . . in the individual cases of these two
Plaintiffs do not constitute ‘final agency action’ that may be reviewed under the APA.” Defs.’
Opp’n at 19. Specifically, Defendants contend that (1) Plaintiffs have attacked general agency
behavior and not any “agency action” reviewable by a court pursuant to the APA, and (2)
Plaintiffs have not identified “final” agency actions. 3 Defs. Opp’n at 18–20. The Court
disagrees on both counts.
a. Agency Action
Defendants contest whether Plaintiffs have identified any “agency action” subject to
judicial review pursuant to the APA. They contend that “Plaintiffs’ claim[s] constitute[] a
generalized complaint that the agency is not properly following the statute in their cases.” Defs.’
Opp’n at 20. The Court finds that the decisions of where to place Plaintiffs Garcia Ramirez and
Hernandez Alfaro after they were transferred to DHS custody constitute agency actions for APA
purposes.
The D.C. Circuit has acknowledged that “the term ‘agency action’ undoubtedly has a
broad sweep.” Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004). The
3
Defendants insist that “[w]hat Plaintiffs complain of—placement in adult detention
centers is necessarily a component of immigration enforcement by the political branches of
government.” Defs.’ Opp’n at 25. However, Defendants do not argue that judicial review of the
challenged actions is precluded by statute, see 5 U.S.C. § 701(a)(1) (withdrawing judicial review
under such circumstances), or that the decision whether to comply with 12 U.S.C. §
1232(c)(2)(B) is “committed to agency discretion by law” such that the decision is not subject to
judicial review, see 5 U.S.C. § 701(a)(2). Accordingly, this Opinion does not reach these
questions. It bears mention, though, that any argument on the latter point would be undermined
by Defendants’ apparent concessions that “[i]n section 1232(c)(2)(B), Congress required ICE to
consider [unaccompanied alien children] who have turned eighteen for placement in locations
other than adult detention centers” and that “ICE is required to also take into consideration their
danger to self, danger to the community, and risk of flight as factors when making that decision.”
Defs.’ Opp’n at 15.
APA defines “agency action” as an “agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act.” 5 U.S.C. § 551(13); 5 U.S.C. § 701(b)(2) (explaining that
“agency action” for purposes of the judicial review provisions of the APA carries the same
meaning given by 5 U.S.C. § 551). With respect to complaints that an agency failed to act, “a
claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All. (“SUWA”),
542 U.S. 55, 64 (2004). This condition precludes attacks that seek broad programmatic
improvements of agency behavior and also precludes judicial review of “even discrete agency
action that is not demanded by law.” Id. at 65. Thus, in Lujan v. National Wildlife Federation,
497 U.S. 871 (1990), the Supreme Court rejected a challenge to a “land withdrawal review
program” based on “rampant” legal violations, explaining that, unless Congress explicitly
provides otherwise, courts may not intervene in the work of the administrative state except
“when, and to the extent that, a specific ‘final agency action’ has an actual or immediately
threatened effect.” Id. at 894. Likewise, in SUWA, the Supreme Court found no “agency action”
subject to judicial review where plaintiffs complained that an agency’s decision to permit use of
off-road vehicles on certain land violated the agency’s mandate to “continue to manage [that
land] . . . in a manner so as not to impair the suitability of such areas for preservation as
wilderness.” 542 U.S. at 65 (quoting 43 U.S.C. § 1782(c)). The Court explained that
“compelling compliance with broad statutory mandates,” such as the one at issue in that case,
would “inject[] the judge into day-to-day agency management.” Id. at 66–67. “The prospect of
pervasive oversight by federal courts over the manner and pace of agency compliance with such
congressional directives is not contemplated by the APA.” Id. at 67.
Defendants do not appear to challenge that Plaintiffs’ complaint cites actions that the
agency was required to take. See Defs.’ Opp’n at 15. Rather, Defendants contest whether
Plaintiffs have identified any “discrete” action subject to judicial review under the APA. See
Defs.’ Opp’n at 20. Contrary to Defendants’ contentions, the Court finds that Plaintiffs have
identified discrete agency actions subject to review under the APA.
Defendants’ argument fails for two reasons. First, Plaintiffs in this case have not lodged
a generalized attack, as Defendants assert. Plaintiffs are not seeking wholesale change to an
entire federal program like the plaintiffs were in Lujan. Nor are they requesting that this Court
inject itself into the day-to-day agency management, as the plaintiffs were in SUWA. Rather,
Plaintiffs in this case seek to compel an agency to take the discrete and concrete action of
considering statutorily specified factors in determining where and how to place them—and
similarly situated others—now that they have aged out of HHS’s care and custody. Cf. R.I.L.-R
v. Johnson, 80 F. Supp. 3d 164, 184 (D.D.C. 2015) (finding that “ICE’s consideration of an
allegedly impermissible factor in making custody determinations” constituted a particularized
agency action). Defendants confuse aggregation of similar, discrete purported injuries—claims
that many people were injured in similar ways by the same type of agency action—for a broad
programmatic attack. The Court sees Plaintiffs’ claims differently.
The D.C. Circuit has found challenges to comparable agency conduct actionable under
the APA. In Meina Xie v. Kerry, 780 F.3d 405 (D.C. Cir. 2015), the Circuit reversed a district
court decision that dismissed a complaint that alleged that the Department of State had illegally
delayed reviewing visa applications filed by persons in certain immigration categories. Id. at
405–06. The district court had found that the plaintiff had not identified any discrete agency
action that the agency was required to take. See id. at 407. The Circuit disagreed, explaining
that the district court had “vastly overstate[d] the rule articulated in [SUWA].” Id. at 407–08.
The plaintiff had not “ask[ed] for compliance with a provision that is anywhere near as broad as
the ones listed in [SUWA].” Id. at 408. Instead, she had “point[ed] to a precise section of [a
statutory provision], establishing a specific principle of temporal priority that clearly reins in the
agency’s discretion” and had argued that the agency had failed to act in accordance with that
mandate. Id. This is exactly the sort of challenge Plaintiffs lodge in this case. In arguing
otherwise, Defendants make the same mistake that the Circuit identified in Meina Xie.
Accordingly, the Court disagrees with Defendants that Plaintiffs’ claims constitute an
impermissible programmatic attack.
In any event, Defendants’ argument fails for another reason: Defendants seem to ignore
that, in addition to seeking relief for a putative class of former unaccompanied minors, Plaintiffs
Ramirez Garcia and Hernandez Alfaro also seek relief for the agency’s purported failure to abide
by 5 U.S.C. § 1232(c)(2)(B) in placing Plaintiffs themselves. See First Am. Compl. ¶¶ 88–90,
97. As the Supreme Court explained in Lujan, an agency action is reviewable “to the extent that,
specific ‘final agency action’ has an actual or immediately threatened effect.” Lujan, 497 U.S. at
894; cf. Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (“While a single step or measure
is reviewable, an on-going program or policy is not, in itself a ‘final agency action’ under the
APA.”). Here, Plaintiffs allege that Defendants did not take specific, discrete agency actions
before placing them and that the agency’s failure to take these actions has harmed them. The
placements of Plaintiffs Garcia Ramirez and Hernandez Alfaro in ICE adult detention facilities—
purportedly without mandated consideration of less restrictive placements—are agency actions
that have actual or immediately threatened effects. Cf. Bark v. U.S. Forest Serv., 37 F. Supp. 3d
41, 50–51 (D.D.C. 2014) (rejecting challenge to “a generalized, unwritten administrative
‘policy,’” but permitting challenge to five specific purported applications of that alleged
policy) 4; RCM Techs., Inc. v. U.S. Dep’t of Homeland Sec., 614 F. Supp. 2d 39, 43–45 (D.D.C.
2009) (finding no agency action in a challenge to DHS’s purported policy of requiring foreign
occupational and physical therapists to have master’s degrees in order to obtain H–1B visas, but
intimating that the specific denial of a visa application made pursuant to the alleged policy would
be justiciable). The Court concludes that the “agency action” condition is met.
b. Finality
Defendants next assert—without elaboration—that Plaintiffs’ APA claims “fail[] the test
for finality.” Defs.’ Opp’n at 18. The Court rejects this argument, too.
Even discrete agency actions are reviewable by a court under the APA only if they are
final. See 5 U.S.C. § 704 (establishing reviewability of “final agency action”). Courts take a
pragmatic approach to finality. U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807,
4
Defendants cite Bark v. U.S. Forest Service, 37 F. Supp. 3d 41 (D.D.C. 2014), as
supporting their argument that Plaintiffs’ failure to point to a “regulation, letter, memorandum, or
other form of written material that comprises this policy, or lack thereof, that they allege is being
applied by Defendants” “alone is fatal to Plaintiffs’ claims.” Defs.’ Opp’n at 19. Bark provides
no such rule. As another court in this jurisdiction has explained, “[a]gency action . . . need not
be in writing to be final and judicially reviewable.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 184
(D.D.C. 2015). In Bark, this Court observed that plaintiffs had attacked both a general policy
and specific applications of that purported policy. Bark, 37 F. Supp. 3d at 50. Plaintiffs sought
vacatur of the purported policy. See id. The Court merely observed that Lujan does not permit
plaintiffs to shoehorn generalized attacks on agency behavior into a court under the “policy”
label. See id. Importantly, though, the Court found “agency action” that is reviewable under the
APA in the specific applications of the purported policy. See id. at 51.
In this case, Plaintiffs lodge attacks on specific, discrete instances in which Defendants
have purportedly placed former unaccompanied alien children without considering less
restrictive placements. See First Am. Compl. ¶ 85 (defining the putative class as those “as to
whom ICE did not consider placement in the least restrictive setting availing, including
alternative to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B)”). That Plaintiffs
seek to join multiple instances of such alleged agency failure into one class action does not
render their complaint an attack on an on-going program or policy of the sort that is not
actionable under the APA.
1815 (2016). As the Supreme Court established in Bennett v. Spear, 520 U.S. 154 (1997), a
court will find that an agency action is final if two conditions are met: “First, the action must
mark the consummation of the agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature. And, second, the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.” Hawkes Co.,
Inc. 136 S. Ct. at 1813. Where there is no final agency action, a plaintiff has no cause of action
under the APA. See Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 183–85 (D.C. Cir. 2006)
(explaining that the “final agency action” requirement is not jurisdictional, but instead
determines whether a plaintiff has a cause of action under the APA).
Here, Plaintiffs Garcia Ramirez and Hernandez Alfaro contend that ICE placed them in
adult detention facilities without considering less restrictive placements as required by 12 U.S.C.
§ 1232(c)(B)(2). At the time of this writing, Plaintiffs Garcia Ramirez and Hernandez Alfaro
have been detained at adult facilities for nearly three months. Defendants do not dispute that
they placed Plaintiffs in these adult detention facilities. Nor do they contend that Plaintiffs’
placements were subject to further consideration by the agency after DHS made its custody
determinations. Indeed, Defendants rejected affirmative requests by counsel for each Plaintiff
for changes in their respective placements. See Letter from Albert E. Carter (Jan. 23, 2018), Ex.
E at 24, ECF No. 20-5; Cantu Decl. ¶¶ 8–9, ECF No. 20-1. The Court thus concludes that both
finality conditions are met. The agency had consummated its decisionmaking process, doing so
at the latest when it denied Plaintiffs’ post-custody-determination requests for a change in
placement. 5 And the agency’s placement decisions had immediate and significant legal
5
That Plaintiffs’ placements might have been altered—or might be altered in the
future—by immigration judges who could choose to grant Plaintiffs bond does not alter this
conclusion. “Immigration judges are career civil-service employees in the Department of
consequences for Plaintiffs, who must bear detention in more restrictive settings than Defendants
might otherwise deem appropriate based on the considerations mandated by 12 U.S.C. §
1232(c)(2)(B). Cf. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from
imprisonment—from government custody, detention, or other forms of physical restraint—lies at
the heart of the liberty that [the Due Process] Clause protects.”). Thus, the Court rejects
Defendants’ argument that Plaintiffs have failed to identify final agency actions reviewable
under the APA.
3. Adequate Remedy
Finally, Defendants assert that Plaintiffs may not bring their APA claims to this court
because they have another adequate remedy in the form of the opportunity to request bond
hearings before immigration judges. See Defs.’ Opp’n at 20–22 (citing 5 U.S.C. § 704(exempting from judicial review agency action for which there is an “adequate remedy in a
court”)). Plaintiffs disagree, contending that the immigration court’s review procedures do not
permit consideration of whether the agency complied with the statutory mandate at issue in this
case, and that, in any event, those review procedures are inadequate because an immigration
hearing typically occurs weeks or months after the agency has made its placement determination.
See Pls.’ Reply at 19–21, ECF No. 24. The Court finds that Plaintiffs have the better of the
argument.
“Section 704 reflects Congress’ judgment that ‘the general grant of review in the APA’
ought not ‘duplicate existing procedures for review of agency action’ or ‘provide additional
judicial remedies in situations where Congress has provided special and adequate review
Justice’s Executive Office of Immigration Review,” Am. Immigration Lawyers Assoc. v. Exec.
Office for Immigration Review, 830 F.3d 667, 670 (D.C. Cir. 2016), and not employees of DHS.
What matters for finality purposes is that the agency finished its decisionmaking process.
procedures.’” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (“CREW”),
846 F.3d 1235, 1244 (D.C. Cir. 2017) (quoting Bowen v. Massachusetts, 487 U.S. 879, 903
(1988)). However, the Supreme Court has explained that “[t]he exception that was intended to
avoid such duplication should not be construed to defeat the central purpose of providing a broad
spectrum of judicial review of agency action.” Bowen, 487 U.S. at 903. “When considering
whether an alternative remedy is ‘adequate’ and therefore preclusive of APA review, [courts]
look for ‘clear and convincing evidence’ of ‘legislative intent’ to create a special, alternative
remedy and thereby bar APA review.” CREW, 846 F.3d at 1244 (quoting Garcia v. Vilsack, 563
F.3d 519, 523 (D.C. Cir. 2009)). Generally, “where a statute affords an opportunity for de novo
district-court review [courts] ha[ve] held that APA review [i]s precluded because ‘Congress did
not intend to permit a litigant challenging an administrative denial . . . to utilize simultaneously
both [the review provision] and the APA.’” El Rio Santa Cruz Neighborhood Health Ctr., Inc. v.
U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005) (last alteration in
original) (quoting Envtl. Def. Fund v. Reilly, 909 F.2d 1497, 1501 (D.C. Cir. 1990)). An
alternative remedy is adequate if it offers relief of “the same genre,” even if that remedy does not
provide relief identical to that offered under the APA. Garcia, 563 F.3d at 522. By contrast, an
alternative remedy “will not be adequate under § 704 if the remedy offers only ‘doubtful and
limited relief.’” Id. at 522 (quoting Bowen, 487 U.S. at 901).
Defendants assert that Plaintiffs may pursue bond hearings before immigration judges
during which they can seek release from detention and that the availability of such hearings
constitutes an “adequate remedy” that precludes this Court from considering the challenge
presented in this case. See Defs.’ Opp’n at 20–22. Indeed, Plaintiff Hernandez Alfaro sought
such a hearing, and an immigration judge granted her request and ordered her release from
custody under bond of $10,000. See Order of the Immigration Judge with Respect to Custody,
Ex. A at 32, ECF No. 20-1. The Court agrees with Plaintiffs that review by an immigration court
of DHS’s custody determination does not constitute an adequate remedy that precludes this
Court from reviewing whether the agency complied with 8 U.S.C. § 1232(c)(2)(B) in placing the
former unaccompanied minors.
First, the Court finds instructive and persuasive the reasoning of the district court in
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015). In that case, plaintiffs filed a putative
class action challenging DHS’s purported policy of detaining Central American mothers and
children with the aim of deterring potential future immigrants. Id. at 170. The agency asserted
that plaintiffs could not state a claim under the APA because review by an immigration judge of
the decisions to detain them constituted an adequate remedy in a court. See id. at 185. The court
disagreed, explaining that “[w]hile it is true that an alien who is denied release by ICE may seek
de novo review of that denial from an immigration judge, see 8 C.F.R. § 1003.19; 8 C.F.R. §
1236.1(d)(1), Defendants’ reliance on this potential redetermination ignores the fact that it occurs
weeks or months after ICE’s initial denial of relief.” Id. Accordingly, the court concluded that
the availability of review of the custody determination by an immigration judge “offers no
adequate remedy for the period of unlawful detention members of the class suffer before
receiving this review.” Id.The same is true here. A non-citizen may quickly receive a bond hearing, but prompt
action is not necessarily guaranteed. And, under the agency’s position, a former unaccompanied
alien minor now detained in an adult facility has no recourse for the period before such a hearing
is scheduled. In this sense, the relief provided by that remedy is limited. Section 1232(c)(2)(B)
requires that the agency “tak[e] into account the alien’s danger to self, danger to community, and
risk of flight” then “consider placement in the least restrictive setting available.” 8 U.S.C. §
1232(c)(2)(B). While, as the agency argues, the provision includes no explicit temporal
requirement, it strains credulity to imagine that Congress intended to permit DHS to make these
determinations whenever it pleases. To find that a hearing before an immigration judge—which
may come weeks or months after a former unaccompanied alien child’s placement in an adult
detention facility—suffices would undermine Congress’s provision of special consideration for
this class of young immigrants. Certainly, Defendants have not pointed to clear and convincing
evidence that Congress intended immigration courts to provide the only source of relief for
Plaintiffs’ injuries.
Second, the Court finds it significant that Section 1232(c)(2)(B) requires affirmative
action of DHS in the form of consideration of the least restrictive options available for placement
of former unaccompanied alien children that they now detain, and it imposes no financial
obligation on those individuals. For example, if ICE had concluded that Plaintiff Hernandez
Alfaro could be safely released to her proposed sponsor, she likely would not have to pay
anywhere near the $10,000 required to secure her release based on the immigration judge’s
order. In sum, the Court disagrees that review by an immigration court offers an adequate
remedy for Plaintiffs’ alleged injuries.
B. Merits
Having determined that there are no justiciability barriers to considering Plaintiffs’
motion for preliminary injunctive relief, the Court next assesses the merits of Plaintiffs’ request.
As detailed above, a preliminary injunction is “an extraordinary remedy that may only be
awarded upon a clear showing that the [movant] is entitled to such relief.” Winter, 555 U.S. at
22. The movant “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 the equities tips in
his favor, and that an injunction is in the public interest.” Id. at 20.
Plaintiffs Garcia Ramirez and Hernandez Alfaro seek a preliminary injunction requiring
Defendants to comply with 8 U.S.C. § 1232(c)(2)(B) in placing them now that they have aged
out of ORR custody and have been transferred to the custody of ICE. See Mot. Temp.
Restraining Order & Prelim. Injunction at 1, ECF No. 2. Specifically, Plaintiffs ask that this
Court order Defendants to “consider” placing them in “the least restrictive setting available after
taking into account [their] danger to self, danger to the community, and risk of flight.” Id.(quoting 8 U.S.C. § 1232(c)(2)(B)). Plaintiffs also ask that Defendants “make available to them
alternative to detention programs, ‘utilizing a continuum of alternatives based [their] need for
supervision’, including placement ‘with an individual or an organizational sponsor, or in a
supervised group home.’” Id. (quoting 8 U.S.C. § 1232(c)(2)(B)). Defendants insist that they
have already complied with this statutory mandate, primarily arguing that Plaintiffs cannot
marshal evidence to show that ICE has systematically failed to abide by 8 U.S.C. §
1232(c)(2)(B) and that Plaintiffs Garcia Ramirez and Hernandez Alfaro cannot show that ICE
failed to comply with the mandate with respect to their individual placements. See Defs.’ Opp’n
at 1–5. Finding that Plaintiffs have carried their burden as to all four preliminary injunction
factors, the Court grants Plaintiffs’ motion for preliminary injunctive relief as to Wilmer Garcia
Ramirez and Sulma Hernandez Alfaro.
1. Likelihood of Success on the Merits
Plaintiffs assert two causes of action, both under the APA. First, pursuant to 5 U.S.C. §
706(2), Plaintiffs argue that Defendants have acted in a manner that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” by failing to consider placements
for each Plaintiff in the “least restrictive setting” available and by failing to make available to
Plaintiffs any alternatives to detention. First Am. Compl. ¶¶ 98–106. Second, Plaintiffs contend
that Defendants have “failed to take a discrete agency action that [the agency] is required to
take,” in violation of § 706(1) of the APA. Id. ¶¶ 107–111.
The substantive basis for these claims is the same: Plaintiffs Garcia Ramirez and
Hernandez Alfaro contend that Defendants ignored a statutory mandate requiring the agency to
“consider” less restrictive placements and alternatives to detention and, instead, automatically
placed them into adult detention facilities when they aged out of HHS’s jurisdiction. Defendants
dispute this claim, asserting that ICE “has established guidance . . . which advises its officers
regarding the obligations imposed by 8 U.S.C. § 1232(c)(2)([B])” and that ICE considered the
relevant statutory factors in placing Plaintiffs. See Defs.’ Opp’n at 16–20. The Court finds that
Plaintiffs have demonstrated that they are likely to succeed in showing that DHS did not comply
with 8 U.S.C § 1232(c)(2)(B) in placing them.
Because the Court limited its consideration of the present motion to Plaintiffs Garcia
Ramirez and Hernandez Alfaro, it will focus its attention on record evidence suggesting whether
DHS complied with 8 U.S.C. § 1232(c)(2)(B) in these individual cases. Plaintiffs provide
several declarations from immigration lawyers who question ICE’s compliance with this
provision in placing other former unaccompanied minors. See First Am. Compl., Exs. A–E, ECF
Nos. 21-1 to 21-5. And ICE contrasts this picture with declarations and other guidance
documents, asserting that, as a matter of course, ICE complies with the statutory mandate. See
Defs.’ Opp’n, Ex. C, ECF No. 20-3. Both sides’ filings provide valuable context, but neither
parties’ submissions put points on the scoreboard with regard to specific questions of whether
Plaintiffs Garcia Ramirez and Hernandez Alfaro likely did or likely did not receive consideration
due under § 1232(c)(2)(B). 6
The Court first considers evidence regarding any consideration offered to Plaintiff Garcia
Ramirez. Plaintiffs provide a declaration from Mr. Garcia Ramirez, which states that, on his
eighteenth birthday, he was transferred to an adult detention facility. Decl. of Wilmer Garcia
Ramirez at 5–6, Ex. E, ECF No. 2-6. Plaintiffs also submit a declaration from Mr. Garcia
Ramirez’s counsel which states plainly that “ICE did not discuss alternatives to detention with
6
At the hearing on Plaintiffs’ motion for preliminary injunction, Government counsel
suggested that the documentation of ICE’s guidance coupled with the presumption that public
officials “have properly discharged their official duties,” Latif v. Obama, 677 F.3d 1175, 1178
(D.C. Cir. 2012), might suffice to show that Plaintiffs’ case is unlikely to succeed on the merits.
See Tr. of Prelim. Injunction Mot. Hr’g (Apr. 3, 2018) at 37:9–23, ECF No. 25. The Court
disagrees. First, the presumption is a rebuttable one. See Riggs Nat’l Corp. & Subsidiaries v.
C.I.R., 295 F.3d 16, 20–21 (D.C. Cir. 2002) (clarifying that the presumption can be rebutted
through “clear and specific evidence”). And, as explained below, Plaintiffs have marshaled
competent evidence showing that they are likely to succeed in demonstrating that Defendants
failed to comply with the statutory mandate.
Second, with regard to failure-to-act claims asserted under the APA—especially claims
like the ones presented here, that, at least at this stage of the litigation, involve clear information
asymmetry—the Court would be remiss to rely heavily on bald assertions not supported by the
record. Cf. Nat’l Resources Def. Council, Inc. v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000)
(“[Courts] do not hear cases merely to rubber stamp agency actions. To play that role would be
‘tantamount to abdicating the judiciary’s responsibility under the Administrative Procedure
Act.’” (quoting A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1491 (D.C. Cir. 1995)). Courts take
a similar approach in the Freedom of Information Act context, where an agency typically
supplies affidavits and indices that describe disputed documents and the requester has no access
to the underlying documents. Though the “[a]gency affidavits are accorded a presumption of
good faith,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), that
presumption alone does not suffice to substantiate the agency’s claims. Rather, an agency is
entitled to summary judgment on the basis of its affidavits only “if they contain reasonable
specificity of detail rather than merely conclusory statements, and if they are not called into
question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial
Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed’n of
Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). To be sure, there are differences
between that context and this one—most notably, that the burden lies with the agency in that
context—but, because the same sort of information asymmetry exists, the Court finds instructive
the prudence exercised in that context.
[him] at any time before or after Wilmer’s 18th birthday,” and “ICE never provided [him] with
any indication that they made a consideration about Wilmer’s placement in the least restrictive
setting or any analysis of alternatives to detention.” Allende-Asparó Decl. ¶ 5, Ex. A, ECF No.
23-1. Plaintiffs also rely heavily on what they identify as deficiencies in Defendants’ filings.
See Pls.’ Reply at 1–5.
Defendants contend that they did consider the requisite statutory factors in placing
Plaintiff Garcia Ramirez. They rely primarily on four things: (1) a declaration from Christine
Hoopes, a Supervisory Deportation and Detention Officer (“SDDO”) with ICE’s Phoenix
District Office; (2) an undated message from ORR to ICE indicating that Mr. Garcia Ramirez
would soon age out of ORR’s jurisdiction and advising that ORR had previously considered
placing him with a family friend in Alabaster, Alabama; (3) a declaration from SDDO Michael
Leal; and (4) communications between Mr. Garcia Ramirez’s counsel and ICE officers. See
Defs.’ Opp’n at 13–20; Exs. D–E, ECF Nos. 20-4, 20-5. None of this evidence tends to show
that Mr. Garcia Ramirez received the consideration he is due, and indeed, much of it supports
Mr. Garcia Ramirez’s claims that he did not receive consideration of less restrictive placements.
First, Ms. Hoopes’s declaration indicates that she “was not on duty the day [Mr. Garcia
Ramirez’s] custody determination was made as it was a Saturday.” Decl. of Christine Hoopes
(“Hoopes Decl.”) ¶ 8, Ex. D, ECF No. 20-4. Ms. Hoopes relies instead on a purported review of
DHS databases, asserting that “the on-duty SDDO reviewed the custody determination and
concurred with the [deportation officer’s] determination to detain [Mr.] Garcia-Ramirez.” Id.Ms. Hoopes’s own declaration makes clear that she was not a decisionmaker who played any
role in the determination of Mr. Garcia Ramirez’s placement. Courts in this jurisdiction have
stated that “[a]n agency may not assert post hoc reasoning as the basis for its decision.” Bolden
v. Blue Cross & Blue Shield Assoc., 848 F.2d 201, 207 (D.C. Cir. 1988). And the D.C. Circuit
has further clarified that:
The “post hoc rationalization” rule is not a time barrier which
freezes an agency’s exercise of its judgment after an initial
decision has been made and bars it from further articulation of its
reasoning. It is a rule directed at reviewing courts which forbids
judges to uphold agency action on the basis of rationales offered
by anyone other than the proper decisionmakers.
Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319, 337 (D.C. Cir. 2011) (quoting Local 814,
Int’l Brotherhood of Teamsters v. NLRB, 546 F.2d 989, 992 (D.C. Cir. 1976) (per curiam)).
Because Ms. Hoopes, by her own admission, was not a proper decisonmaker with regard to Mr.
Garcia Ramirez’s placement, the Court will not regard her justifications as competent evidence
showing that the agency complied with the statutory mandate.
Second, nothing in the message indicating that Mr. Garcia Ramirez would soon age out
of ORR’s jurisdiction shows that DHS considered Mr. Garcia Ramirez’s danger to self, danger to
the community, or risk of flight or that DHS considered placement in an environment less
restrictive than an adult detention facility. See Ex. D at 13, ECF No. 20-4. The message
explains that, according to ORR, Mr. Garcia Ramirez had “no viable sponsor identified
preceding aging out.” Id. This was because “[o]ne prior sponsorship attempt with a family
friend . . . was denied in accordance to ORR release requirements.” Id. In addition, the message
provided that Mr. Garcia Ramirez “is anticipated to be released to his family friend . . . in
[Pennsylvania].” Id. However, the letter provided no further information about the status of this
prospective placement. See id.It is not clear to this Court why the mere fact that ORR provided this information to ICE
about a past placement that it considered for Mr. Garcia Ramirez could suffice to meet ICE’s
obligations. First, the letter makes clear that the reason that one of Mr. Garcia Ramirez’s
proposed sponsors was denied was because that sponsorship would not comply with ORR
release requirements. As ORR sponsorship requirements are presumably more onerous than ICE
sponsorship requirements, see, e.g., Office of Refugee Resettlement, Sponsor Handbook, (listing
duties for sponsors of unaccompanied alien children, including that they must ensure that the
child has access to education and must protect the child’s physical and emotional well-being),
https://www.acf.hhs.gov/sites/default/files/orr/frp_8_sponsor_handbook_english_070716.pdf;
see also 8 U.S.C. § 1232 (special statutory protections for unaccompanied minors), it is not clear
why ORR’s consideration of sponsors under its standards might show that ICE had complied
with its statutory obligations. Furthermore, this letter says nothing of ICE’s consideration of the
other potential placement that Mr. Garcia Ramirez had identified. And it likewise reveals no
consideration of Mr. Garcia Ramirez’s risk of flight, danger to self, or danger to community.
Third, the agency relies on a declaration of Michael Leal. See Leal Decl., Ex. E, ECF
No. 20-5. According to Mr. Leal, on September 23, 2017, ORR transferred Mr. Garcia Ramirez
into the custody of ICE. Id. ¶ 6. At the Phoenix Field Office, ICE purportedly determined that
Mr. Garcia Ramirez should be held without bond. Id. The next day, ICE transferred Mr. Garcia
Ramirez to EDC where a deportation officer used the Risk Assessment Classification tool to
determine Mr. Garcia Ramirez’s custody classification level. Id. ¶¶ 6–7. Mr. Leal’s declaration
tends to support Plaintiffs’ contentions, not refute them. He provides no statement suggesting
that ICE considered anything less restrictive than adult detention at the Phoenix Field Office
before it transferred Mr. Garcia Ramirez to EDC. Any assertion that the later use of the Risk
Classification Assessment suffices to meet Defendants’ statutory obligations ignores the purpose
of that assessment—to determine where to place Mr. Garcia Ramirez within an adult detention
facility, not to determine whether he belonged there in the first place.
Finally, Defendants rely on two sets of communications between ICE deportation officers
and Mr. Garcia Ramirez’s counsel. In the first, counsel requested that Mr. Garcia Ramirez be
released on his own recognizance. See Email from Noriana C. Hermes (Sept. 22, 2017), Ex. D at
7, ECF No. 20-4. ICE’s response to that letter—which reads in full “Wilmer needs to be taken
into custody d[ue] to a motion to re-calendar being submitted. Wilmer is scheduled to be picked
up by ICE on [redacted] in the morning thanks”—surely does not evidence any consideration of
less restrictive placements than adult detention. See Email from Deportation Officer (Sept. 22,
2017), Ex. D at 9, ECF No. 20-4. In the second communication, Mr. Garcia Ramirez’s counsel
submitted a detailed letter, arguing for Mr. Garcia Ramirez’s release pursuant to 8 U.S.C. §
1232(c)(2)(B). See Letter from Néstor Allende-Asparó (Jan. 5, 2018), Ex. E at 20–23, ECF No.
20-5. In a response letter—which counsel may or may not have received—a Deputy Field Office
Director from ICE denied the request. See Letter from Albert E. Carter (Jan. 23, 2018), Ex. E at
24, ECF No. 20-5. Interpreting counsel’s letter as a request for prosecutorial discretion, the
Deputy Director contended that “after completing [a] review, . . . the totality of circumstances do
not support a favorable exercise of discretionary authority in this case.” Id. But, as Plaintiffs
argue, this letter does not show that ICE considered the statutorily specified factors or that ICE
considered placement on the continuum of alternatives instead of just regarding the request as
one for release. Indeed, the contention that ICE had denied a request for “favorable exercise of
discretionary authority” seems to overlook the fact that ICE’s compliance with 8 U.S.C. §
1232(c)(2)(B) is mandated by statute and therefore not discretionary.
In sum, based on a combination of evidence supplied by Plaintiffs tending to show that
Defendants did not comply with 8 U.S.C. § 1232(c)(2)(B) and deficiencies in Defendants’
submissions, which do not undermine—and in some places support—Plaintiffs’ showing, the
Court finds that Plaintiffs have met their burden of showing a likelihood of success with regard
to claims about Mr. Garcia Ramirez’s placement.
Next, the Court looks to similar evidence supplied by both parties with regard to the
placement of Plaintiff Hernandez Alfaro. Plaintiffs again supply declarations, contending that
this Plaintiff was transferred from ORR custody to DHS custody on her eighteenth birthday. See
Decl. of Sulma Hernandez Alfaro ¶ 10, Ex. F, ECF No. 2-7; Decl. of Rosemary Gonzalez ¶ 6,
Ex. B, ECF No. 23-2. Plaintiffs also submit requests for release and for consideration of less
restrictive placements—including a request for release to an identified sponsor—pursuant to 8
U.S.C. § 1232(c)(2)(B). See Gonzalez Decl. ¶¶ 7–19. Defendants contend that the agency did
comply with the statutory provision. They rely primarily on (1) a declaration from Deportation
Officer Robert Cantu, (2) a declaration of Supervisory Deportation and Detention Officer Jose
Cortez, and (3) communications between ORR and ICE shortly before Ms. Hernandez Alfaro
aged out of ICE’s jurisdiction. See Defs.’ Opp’n, Exs. A–B, ECF Nos. 20-1, 20-2. The evidence
marshaled by Plaintiffs tends to show that they are likely to succeed on the merits of their claims
regarding Defendants’ failure to comply with 8 U.S.C. § 1232(c)(2)(B). By contrast, evidence
supplied by Defendants does not sufficiently rebut this showing, and, indeed, with regard to
some submissions, supports Plaintiffs’ contentions.
Defendants rely heavily on Officer Cantu’s declaration. Officer Cantu asserts that he met
briefly with counsel for Ms. Hernandez Alfaro on February 7, 2018. See Cantu Decl. ¶¶ 6–8.
During that meeting, he denied Ms. Hernandez Alfaro’s request for release to La Posada
Providencia, primarily on the basis that people often abscond from the shelter 7 and based on the
7
The record includes no factual data supporting this assertion. Plaintiffs have supplied a
declaration from Sister Margaret Mertens—who has worked at the shelter for a total of eighteen
years and who is a member of the Sisters of Divine Providence, which runs La Posada
fact that Ms. Hernandez Alfaro has no strong family ties in the United States. See Cantu Decl. ¶¶
7–8. Importantly, though, nothing in Officer Cantu’s declaration—nor anything in the record—
indicates that La Posada Providencia constituted “the least restrictive setting available” such that
Defendants’ rejection of this single request sufficed to meet Defendants’ statutory obligation.
Likewise, there is no indication that Defendants considered Ms. Hernandez Alfaro for any
alternative to detention programs or that they even mentioned such options to counsel. In sum,
while Officer Cantu’s declaration evidences some “account[ing]” of Ms. Hernandez Alfaro’s
“danger to self, danger to the community, and risk of flight,” it does not show that ICE
“consider[ed] placement in the least restrictive setting available.” 8 8 U.S.C. § 1232(c)(2)(B).
The declaration provided by Officer Cortez is also of limited aid to Defendants.
According to Officer Cortez, DHS records show that on January 18, 2018, ICE initiated an
electronic risk classification assessment during which Deportation Officer Anthony Martinez
utilized an electronic risk classification assessment to determine whether to release, detain, or
consider alternatives to detention for Ms. Henandez Alfaro. Cortez Decl. ¶ 22, ECF No. 20-2.
Officer Cortez contends that Ms. Hernandez Alfaro was “determined to pose a high risk of
absconding due to not having a sponsor or fixed, permanent address in the United States that she
had lived in for at least six months.” Id. ¶ 22. Officer Cortez, Officer Martinez’s supervisor,
purportedly concurred with the decision. Id. ¶ 23.
Providencia—contesting Officer Cantu’s contentions. See Decl. of Sister Margaret Mertens
(“Mertens Decl.”) ¶¶ 2–8, Ex. H, ECF No. 23-8. Sister Mertens states that the shelter “ha[s]
never had an immigrant run away” and that “[i]f any resident leaves the shelter, we confirm that
they have a safe place to go to, such as a family member or sponsor.” Id. ¶ 8. But, Sister
Mertens’s assertions are hardly any less conclusory than Officer Cantu’s.
8
The Court need not resolve, at this stage, disputes between counsel for Ms. Hernandez
Alfaro and Officer Cantu about the substance of their conversation. Neither party requested an
evidentiary hearing to resolve these questions, and, even accepting the version of events more
favorable to the agency, the Court believes that Plaintiffs have met their burden.
Though Officer Cortez apparently played some role in ICE’s decision to detain Ms.
Hernandez Alfaro, his explanations also appear to primarily provide bald, post hoc justifications
for ICE’s decision. As Plaintiffs note, Defendants do not provide any explanation from the
officer who made the placement decision, any record of the risk classification assessment
purportedly performed, or much else other than the bald assertion that Plaintiff did not have a
suitable sponsor. See Pls.’ Reply at 5. To the extent that ICE relied solely on the fact that
Plaintiff had no immediate family in the United States and had not resided at a permanent
address for more than six months, Defendants have failed to explain how these factors account
for all of the required considerations set forth in 8 U.S.C. §1232(c)(2)(B). Furthermore, the
Court agrees with Plaintiffs that Defendants “appear to view its [§ 1232(c)(2)(B)] decision-
making as a binary choice between detention and release.” Pls.’ Reply at 6 n.2. Defendants
offer no indication that they considered requiring, for example, ankle monitoring or any other
option to reduce Ms. Hernandez Alfaro’s risk of flight to render her eligible for a placement less
restrictive than an adult detention facility.
Finally, just like the records notifying ICE of Mr. Garcia Ramirez’s impending transfer to
DHS custody, the communications between ICE and ORR indicate only that ORR rejected
certain proposed sponsors. ICE does not explain why ORR’s consideration of certain proposed
sponsors might suffice to meet ICE’s statutory mandate. In sum, the Court finds that Ms.
Hernandez Alfaro, too, has met her burden of showing a likelihood of success on the merits.
2. Irreparable Harm
The Court next considers whether Plaintiffs have met their burden of showing irreparable
harm. Plaintiffs argue that “[e]ach day [that they] spend in immigration detention without ICE
making a determination as to whether they can be held in a less restrictive setting and/or without
ICE making alternatives to detention available, is a day in which Plaintiffs’ freedom and
fundamental liberty interests may be unlawfully deprived.” Mot. Temp. Restraining Order &
Prelim. Injunction at 14, ECF No. 2. According to Plaintiffs, they have also suffered—and will
continue to suffer—negative physical and mental effects of detention, subpar medical and
psychiatric care, and economic burdens imposed on them and their families as a result of their
detentions. See id. Defendants disagree, arguing that (1) Plaintiffs seek an injunction that would
require the Court to provide the same relief as Plaintiffs’ complaint requests, and (2) Plaintiffs
waited several months after their placements before filing their lawsuit, thus undercutting the
notion that their injuries are sufficiently urgent to warrant a preliminary injunction. See Defs.’
Opp’n at 22–25. The Court finds that Plaintiffs have met their burden.
Courts in this jurisdiction have recognized that “[t]he concept of irreparable harm does
not readily lend itself to definition.” Judicial Watch, Inc. v. Dep’t of Homeland Sec., 514 F.
Supp. 2d 7, 10 (D.D.C. 2007). Nonetheless, the D.C. Circuit has laid out “several well known
and indisputable principles” that should underlie a court’s analysis. Wis. Gas Co. v. FERC, 758
F.2d 669, 674 (D.C. Cir. 1985). First, the party seeking preliminary injunctive relief must
demonstrate that the claimed injury is “both certain and great” and “actual and not theoretical.”
Second, the movant “must show that ‘[t]he injury complained of [is] of such imminence that
there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.’” Id.(alterations in original) (quoting Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.)).
And, finally, the injury must be “beyond remediation.” Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006).
The Court finds that Plaintiffs have met their burden of showing irreparable harm.
Courts in this and other jurisdictions have found that deprivations of physical liberty are the sort
of actual and imminent injuries that constitute irreparable harm. See Seretse-Khama v. Ashcroft,
215 F. Supp. 2d 37, 53 n.20 (D.D.C. 2002) (collecting cases). Courts have likewise recognized
that the “major hardship posed by needless prolonged detention” is a form of irreparable harm.
R.I.L-R, 80 F. Supp. 3d at 191 (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir.
2013)). And, where a plaintiff requests injunctive relief mandating that an agency comply with a
process that, if completed could secure plaintiff’s freedom or could alleviate harsh conditions of
confinement, the harm from detention surely cannot be remediated after the fact. See R.I.L-R, 80
F. Supp. 3d at 191.
Defendants’ arguments to the contrary are unavailing. Defendants first complain that
Plaintiffs’ request for a preliminary injunction overlaps substantially with the complete relief
requested in this case. See Defs.’ Opp’n at 22–23. Defendants do not explain, however, why
this might lessen the harm associated with each additional day Plaintiffs endure purportedly
inappropriate detention. The Court fails to see why it should deny relief on the basis that
Plaintiffs might eventually secure release after this Court addresses all facets of their complaint.
As for Defendants’ argument that Plaintiffs’ delay in filing the motion for a preliminary
injunction cuts against their contention that they have suffered irreparable harm, see Defs.’
Opp’n at 22–24, the Court also finds this ground insufficient to justify denying their motion. The
record shows that, through about mid-January 2018, Plaintiffs were engaged in attempts to
persuade Defendants to comply with 8 U.S.C. § 1232(c)(2)(B) in their respective cases. Had
Defendants done so, Plaintiffs likely would not have had occasion to file this lawsuit, which they
brought in early March 2018, only two months after their communications with DHS. Because
Plaintiffs were engaged in efforts to secure consideration of the statutory provision at issue in
this case, and because they filed suit shortly after those efforts proved unsuccessful, the Court
does not believe that the delay substantially undermines Plaintiffs’ contentions that continued
detention would harm them. 9
3. Balancing of the Equities and Public Interest
Finally, Plaintiffs contend that irreparable harm to them in the absence of the Court’s
entry of a preliminary injunction greatly outweighs any claimed harm to the government. Mot.
Temp. Restraining Order & Prelim. Injunction at 16. According to Plaintiffs, they have
significant liberty interests at stake and continued detention in adult facilities without
consideration of less restrictive placements mandated by 8 U.S.C. § 1232(c)(2)(B) would result
in mental, emotional, and economic harm. Id. Furthermore, Plaintiffs insist that their “requested
relief would require only that Defendants comply with Section 1232(c)(2)(B) by determining
whether Plaintiffs can be released to a sponsor, group home, or some other type of non-
detention.” Id. The agency disagrees, asserting that the balancing of the equities and the public
interest favor it. See Defs.’ Opp’n at 25–26. Defendants cite the fact that an injunction would
alter, rather than preserve, the status quo; the fact that Plaintiffs’ motion for preliminary
injunctive relief overlaps substantially with its request for relief on the merits; and the public’s
interest in enforcement of United States immigration laws. See id. The Court concludes that the
balance of the hardships and public interest considerations favor Plaintiffs.
In determining whether to grant a preliminary injunction “courts must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted)
9
To be sure, in denying Plaintiffs’ motion for temporary restraining order, the Court
noted that Plaintiffs had not requested such relief immediately. See Tr. of Temp. Restraining
Order Mot. Hr’g (Mar. 8, 2018) at 34:3–6, ECF No. 19 However, that a delay did not justify
immediate relief—before the agency could even respond to Plaintiffs’ motion—does not justify
denying it now that the parties have had a chance to brief and fully argue the motion.
(quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). “In exercising their sound
discretion, courts . . . should [also] pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting Weinberger
v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). These considerations merge into one factor
when the government is the non-movant. See Nken v. Holder, 556 U.S. 418, 435 (2009).
The Court agrees with Plaintiffs that the relief requested is very slight—if granted,
Defendants must only consider placing Plaintiffs in less restrictive settings, as required by 8
U.S.C. § 1232(c)(2)(B). Defendants need offer no change in placement, unless warranted by this
assessment. Furthermore, while Defendants are constrained by Congress’s mandate, they have
quite a bit of discretion in determining how to weigh the factors and whether to provide a less
restrictive setting. By contrast, withholding relief might deny Plaintiffs an avenue through which
to secure a means of release that Congress explicitly provided for unaccompanied minors who
recently reached the age of eighteen. The balancing of the equities tip firmly in Plaintiffs’ favor.
Defendants’ arguments to the contrary are unpersuasive. First, Defendants contend that
Plaintiffs’ request should be held to a higher standard because they seek to alter the status quo
rather than merely preserve it. It is true that some district courts in this Circuit apply a rule under
which “where an injunction is mandatory—that is, where its terms would alter, rather than
preserve, the status quo by commanding some positive act—the moving party must meet a
higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or
that extreme or very serious damage will result from the denial of the injunction.” Columbia
Hosp. for Women Found., Inc. v. Bank of Tokyo–Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C.
1997). Assuming such a rule applies in this Circuit, 10 in this Court’s estimation, Plaintiffs have
carried their burden. Continued detention, where Plaintiffs might otherwise be eligible for less
restrictive placements, constitutes very serious damage that merits a mandatory injunction.
Second, Defendants note that Plaintiffs’ requested relief overlaps substantially with the
merits of this suit. However, the Court finds that the consequences of delaying relief justifies
swift action even in the face of such overlap. Furthermore, the Court limited its consideration of
the present motion to Plaintiffs Garcia Ramirez and Hernandez Alfaro and it offered Defendants
substantial time to investigate these Plaintiffs’ claims. Since filing an opposition to Plaintiffs’
motion for preliminary injunctive relief, Defendants have not suggested that they lacked time or
resources to thoroughly investigate these two Plaintiffs’ claims. Accordingly, the Court
disagrees that this overlap might counsel against granting the present motion.
Finally, Defendants argue that the public’s interest in enforcement of immigration laws
favors denying Plaintiffs’ motion. The Court disagrees. While DHS surely has substantial
discretion in the area of immigration law, cf. Arizona v. United States, 567 U.S. 387, 408 (2012)
(“A principal feature of the removal system is the broad discretion exercised by immigration
officials.”), Plaintiffs have identified a specific statutory provision where the agency’s discretion
has been clearly constrained by Congress. The public interest surely does not cut in favor of
permitting an agency to fail to comply with a statutory mandate. See Jacksonville Port Auth. v.
Adams, 556 F.2d 52, 59 (D.C. Cir. 1977) (recognizing that “there is an overriding public interest
. . . in the general importance of an agency’s faithful adherence to its statutory mandate.”).
10
Notably, “[t]he D.C. Circuit has not opined on the issue, but application of a
heightened standard of review of requests for mandatory preliminary injunctive relief has been
adopted in other Circuits.” Singh v. Carter, 185 F. Supp. 3d 11, 17 n.3 (D.D.C 2016) (collecting
cases).
***
In sum, the Court finds that Plaintiffs Wilmer Garcia Ramirez and Sulma Hernandez
Alfaro have met their burden of showing that preliminary injunctive relief is warranted ordering
Defendants to comply with 8 U.S.C. § 1232(c)(2)(B) in placing them. Plaintiffs have shown that
it is likely that they would succeed on the merits of their claims, as they have supplied evidence
tending to show that Defendants have not yet complied with the compulsory provision and
Defendants’ evidence does not refute, and in some instances, supports Plaintiffs’ claims.
Plaintiffs have also shown that they would suffer irreparable harm in the absence of a
preliminary injunction and that a balancing of the equities and public interest considerations
favor granting their requested relief. Accordingly, the Court orders Defendants to comply with 8
U.S.C. § 1232(c)(2)(B) within two weeks of the date of the order accompanying this Opinion.
The Defendants’ assessment pursuant to the statute must be memorialized in a document that
goes beyond merely parroting the language of the statute, but, instead, allows the Court to
determine whether the agency has considered the factors required by the statute. See Epsilon
Elect., Inc. v. U.S. Dep’t of Treas., Office of Foreign Assets Control, 857 F.3d 913, 928 (D.C.
Cir. 2017) (explaining that, under APA review, courts “must uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned” but that courts “may not supply a
reasoned basis for the agency’s action that the agency itself has not given” (internal citations and
quotation marks omitted)).
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction as to Plaintiffs
Wilmer Garcia Ramirez and Sulma Hernandez Alfaro is GRANTED. Defendants are ordered to
comply with 8 U.S.C. § 1232(c)(2)(B) in placing these Plaintiffs. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: April 18, 2018 RUDOLPH CONTRERAS
United States District Judge