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CA9 Upholds Saravia Preliminary Injunction

October 01, 2018 (3 min read)

Saravia v. Sessions, court staff summary - "In an action arising from Immigration and Customs Enforcement’s rearrest and detention of noncitizens who came to this country as unaccompanied minors, the panel affirmed the district court’s grant of a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the basis for their rearrest.

The plaintiffs are noncitizen minors who entered the United States unaccompanied by a parent or guardian and were placed in the custody of the United States Office of Refugee Resettlement (“ORR”). ORR subsequently released the minors to a parent or sponsor after concluding that each minor was not dangerous to himself or the community nor a flight risk. However, in 2017, Immigration and Customs Enforcement arrested plaintiffs because of alleged gang membership and transferred them to secure juvenile detention facilities.

After plaintiff A.H. filed this putative class action, the district court provisionally certified a class of certain noncitizen minors and granted a preliminary injunction, requiring a prompt hearing before a neutral decisionmaker at which the minors could contest the gang allegations. 

The panel held that the district court did not abuse its discretion in granting the preliminary injunction, rejecting the government’s contention that the relief ordered conflicts with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”). The panel concluded that the preliminary injunction is entirely consistent with the TVPRA’s mandate that ORR place unaccompanied children in the least restrictive setting that is in the best interest of the child, explaining that: (1) the preliminary injunction calls for minors to be released back to their previous sponsors, whom the government has already determined to be suitable; and (2) nothing in the order prohibits the government from transferring minors to ORR custody within 72 hours, as required by the TVPRA.

The panel also rejected the government’s contention the district court failed to consider existing procedural protections allegedly available to the minors: (1) an internal review process mandated by the TVPRA and (2) the bond hearings required by the 1997 settlement in Flores v. Sessions. The panel explained that the district court expressly considered current ORR procedures, including Flores bond hearings and regular review by ORR. However, the district court concluded that, on the current record, these procedures appeared inadequate to protect against the risk of minors being erroneously taken away from their sponsors. The panel concluded that the district court did not abuse its discretion in this regard, explaining that the ORR review process is entirely unilateral such that the juvenile is not provided with notice of the reason for incarceration or an opportunity to answer any charges.

The panel also concluded that the district court did not abuse its discretion in concluding that Flores hearings were not sufficient to protect the TVPRA rights of the members of the plaintiff class, each of whom had initially been found to qualify for placement with a parent or sponsor previously approved by ORR. The panel explained that Flores hearings were designed to consider ORR’s initial determination that a minor should be detained and, thus, a favorable finding in a Flores hearing does not entitle minors to release. The government must still identify a safe and secure placement into which the child can be released – a process that can take months. Noting that the government conceded that the record is unclear as to how promptly minors receive Flores hearings, the panel also concluded that the district court reasonably found that the evidence suggests class members will remain in ORR custody indefinitely in the absence of a preliminary injunction."

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