CASREF,TYPE-D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18-cv-00508-RC

GARCIA RAMIREZ et al v. U.S. IMMIGRATION AND CUSTOM ENFORCEMENT et al Assigned to: Judge Rudolph Contreras Referred to: Magistrate Judge G. Michael Harvey (Settlement) Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 03/05/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff WILMER GARCIA RAMIREZ

represented by Barack Echols KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 312-862-2000 Email: bechols@kirkland.com TERMINATED: 12/08/2020 LEAD ATTORNEY

Erin Reynolds KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 (312) 862-2618 Email: erin.reynolds@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gianna Borroto NATIONAL IMMIGRANT JUSTICE CENTER 208 S. LaSalle Street Suite 1300 Chicago, IL 60604 (312) 660-1516 Email: GBorroto@heartlandalliance.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Fombonne KIRKLAND & ELLIS LLP 609 Main Street Houston, TX 77002 (713) 836-3336 Email: jonathan.fombonne@kirkland.com TERMINATED: 12/08/2020 LEAD ATTORNEY
Michael B. Slade KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 (312) 862-2000 Fax: (202) 389-5200 Email: mslade@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Orla P. O'Callaghan KIRKLAND & ELLIS LLP 609 Main Street Houston, TX 77002 (713) 836-3588 Fax: (713) 836-3601 Email: orla.ocallaghan@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul L. Quincy KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389-5000 Email: paul.quincy@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruben Loyo NATIONAL IMMIGRANT JUSTICE CENTER 224 S Michigan Avenue Suite 600 Chicago, IL 60604

(312) 660-1312 Email: rloyo@heartlandalliance.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tia T. Trout Perez KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave., NW Washington, DC 20004 (202) 389-5955 Fax: (202) 389-5200 Email: ttrout-perez@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Jacobowski KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 (312) 862-2000 Fax: (312) 862-2200 Email: amanda.jacobowski@kirkland.com ATTORNEY TO BE NOTICED
Anne K. Reser KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 (312) 862-3661 Email: anne.reser@kirkland.com TERMINATED: 03/26/2019
Britney Ann Lewis KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389-5188 Email: britney.lewis@kirkland.com ATTORNEY TO BE NOTICED
Devin Allan DeBacker KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389-5205

Fax: (202) 389-5200 Email: devin.debacker@kirkland.com TERMINATED: 03/26/2019
Jamie R. Netznik KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 (312) 826-2000 Fax: (312) 862-2200 Email: jamie.netznik@kirkland.com TERMINATED: 03/26/2019
Katherine E. Melloy Goettel AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W. Suite 200 Washington, DC 20005 202-507-7552 Email: kgoettel@immcouncil.org ATTORNEY TO BE NOTICED
Kevin Ross Powell KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389-5239 Fax: (202) 389-5239 Email: ross.powell@kirkland.com TERMINATED: 03/26/2019
Mark Fleming NATIONAL IMMIGRANT JUSTICE CENTER 224 S. Michigan Avenue Suite 600 Chicago, IL 60604 312-660-1628 Fax: 312-660-1505 Email: mfleming@heartlandalliance.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff SULMA HERNANDEZ ALFARO

Patrick T. Haney KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389-5124 Email: patrick.haney@kirkland.com TERMINATED: 12/08/2020
Paul F. Brinkman KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389-5955 Fax: (202) 389-5200 Email: paul.brinkman@kirkland.com TERMINATED: 03/26/2019
Rebecca Wall Forrestal KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 879-5000 Email: rebecca.forrestal@kirkland.com ATTORNEY TO BE NOTICED
Stephen R. Patton KIRLAND & ELLIS 300 North LaSalle Chicago, IL 60654 (312) 862-2000 Fax: (312) 862-2200 Email: stephen.patton@kirkland.com ATTORNEY TO BE NOTICED
represented by Barack Echols (See above for address) TERMINATED: 12/08/2020 LEAD ATTORNEY
Erin Reynolds (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Gianna Borroto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Fombonne (See above for address) TERMINATED: 12/08/2020 LEAD ATTORNEY
Michael B. Slade (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Orla P. O'Callaghan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul L. Quincy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tia T. Trout Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Jacobowski (See above for address) ATTORNEY TO BE NOTICED
Anne K. Reser (See above for address) TERMINATED: 03/26/2019

Plaintiff
ANA P. On behalf of themselves and others similarly situated

Britney Ann Lewis (See above for address) ATTORNEY TO BE NOTICED
Devin Allan DeBacker (See above for address) TERMINATED: 03/26/2019
Jamie R. Netznik (See above for address) TERMINATED: 03/26/2019
Katherine E. Melloy Goettel (See above for address) ATTORNEY TO BE NOTICED
Kevin Ross Powell (See above for address) TERMINATED: 03/26/2019
Mark Fleming (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick T. Haney (See above for address) TERMINATED: 12/08/2020
Paul F. Brinkman (See above for address) TERMINATED: 03/26/2019
Rebecca Wall Forrestal (See above for address) ATTORNEY TO BE NOTICED
Stephen R. Patton (See above for address) ATTORNEY TO BE NOTICED
represented by Gianna Borroto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Fombonne (See above for address) TERMINATED: 12/08/2020 LEAD ATTORNEY
Katherine E. Melloy Goettel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Slade (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tia T. Trout Perez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Jacobowski (See above for address) ATTORNEY TO BE NOTICED
Devin Allan DeBacker (See above for address) TERMINATED: 03/26/2019
Jamie R. Netznik (See above for address) TERMINATED: 03/26/2019
Kevin Ross Powell (See above for address)

V.
Defendant
U.S. IMMIGRATION AND CUSTOM ENFORCEMENT

TERMINATED: 03/26/2019
Mark Fleming (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul F. Brinkman (See above for address) TERMINATED: 03/26/2019
represented by Cara Elizabeth Alsterberg UNITED STATES DEPARTMENT OF JUSTICE P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 532-4667 Email: cara.e.alsterberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Parascandola UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation P.O. Box 868 Washington, DC 20044 (202) 514-3097 Email: christina.parascandola@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin Abbott Kisor UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044

(202) 532-4331 Email: colin.kisor@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Paul Schultz U.S. DEPARTMENT OF JUSTICE Ben Franklin Station, Civil Division P.O. Box 878 Washington, DC 20044 (202) 532-4075 Email: Evan.P.Schultz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Jay Zeitlin U.S. DEPARTMENT OF JUSTICE Civl Division, Office of Immigration Litigation 450 5th St. NW Suite 2030 Washington, DC 20044 (202) 305-2807 Email: benjamin.zeitlin@usdoj.gov ATTORNEY TO BE NOTICED
Kevin Charles Hirst U.S. DEPARTMENT OF JUSTICE Immigration Litigation 450 5th Street, NW Washington, DC 20530 (202) 354-8536 Email: kevin.c.hirst@usdoj.gov ATTORNEY TO BE NOTICED
Theo Nickerson UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation 450 5th Street, NW #6050 Washington, DC 20530 (202) 616-8906 Email: Theo.Nickerson@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
THOMAS HOMAN Acting Director of ICE

William Herrick Weiland U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 305-0770 Email: william.h.weiland@usdoj.gov ATTORNEY TO BE NOTICED
Yamileth G. Davila UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION Office of Immigration Litigation District Court Section P.O. Box 878 Ben Franklin Station Washington, DC 20044 (202) 305-0137 Email: yamileth.g.davila@usdoj.gov ATTORNEY TO BE NOTICED
represented by Cara Elizabeth Alsterberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Paul Schultz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Jay Zeitlin (See above for address)

Defendant
DEPARTMENT OF HOMELAND SECURITY

ATTORNEY TO BE NOTICED
Kevin Charles Hirst (See above for address) ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) ATTORNEY TO BE NOTICED
William Herrick Weiland (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Cara Elizabeth Alsterberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Paul Schultz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Jay Zeitlin (See above for address) ATTORNEY TO BE NOTICED
Kevin Charles Hirst (See above for address) ATTORNEY TO BE NOTICED

Defendant
KIRSTJEN M. NIELSEN Secretary of Homeland Security

Theo Nickerson (See above for address) ATTORNEY TO BE NOTICED
William Herrick Weiland (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED
represented by Cara Elizabeth Alsterberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin Abbott Kisor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Evan Paul Schultz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Jay Zeitlin (See above for address) ATTORNEY TO BE NOTICED
Kevin Charles Hirst (See above for address) ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) ATTORNEY TO BE NOTICED

William Herrick Weiland (See above for address) ATTORNEY TO BE NOTICED
Yamileth G. Davila (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/05/2018
03/05/2018
03/05/2018 03/05/2018 03/05/2018 03/06/2018
03/06/2018

# Docket Text
1 COMPLAINT against DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT ( Filing fee $ 400, receipt number 4616089822) filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Civil Cover Sheet)(jf) . (Entered: 03/06/2018)
2 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Certificate of Counsel, # 12 Text of Proposed Order)(jf) (Entered: 03/06/2018)
3 LCVR 83.2(g) CERTIFICATE OF PRO BONO REPRESENTATION for WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO by Katherine Melloy Goettel (jf) (Entered: 03/06/2018)
4 LCVR 83.2(g) CERTIFICATE OF PRO BONO REPRESENTATION for WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO by Stephen R. Patton, P.C. (jf) (Entered: 03/06/2018)
5 LCVR 83.2(g) CERTIFICATE OF PRO BONO REPRESENTATION for WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO by Anne K. Reser (jf) (Entered: 03/06/2018)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear for a hearing on 2 Plaintiff's motion for a temporary restraining order on March 8, 2018 at 3:00 PM in Courtroom 14 before Judge Rudolph Contreras. SO ORDERED. Signed by Judge Rudolph Contreras on March 6, 2018. (lcrc2) Modified on 3/6/2018 (lcrc2, ). (Entered: 03/06/2018)
Set/Reset Hearings: Motion Hearing set for 3/8/2018 at 03:00 PM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 03/06/2018)

03/06/2018 03/07/2018 03/07/2018 03/07/2018 03/07/2018 03/07/2018 03/07/2018
03/07/2018
03/08/2018

6 MOTION to Certify Class by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Trout Perez, Tia) (Entered: 03/06/2018)
7 NOTICE of Appearance by Katherine E.M. Goettel on behalf of All Plaintiffs (Goettel, Katherine) (Entered: 03/07/2018)
8 NOTICE of Appearance by Stephen R. Patton on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 03/07/2018)
9 NOTICE of Appearance by Colin Abbott Kisor on behalf of All Defendants (Kisor, Colin) (Entered: 03/07/2018)
10 NOTICE of Appearance by Christina Parascandola on behalf of All Defendants (Parascandola, Christina) (Entered: 03/07/2018)
11 NOTICE of Appearance by Cara Elizabeth Alsterberg on behalf of All Defendants (Alsterberg, Cara) (Entered: 03/07/2018)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/6/2018. Answer due for ALL FEDERAL DEFENDANTS by 5/5/2018. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit)(Trout Perez, Tia) (Entered: 03/07/2018)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/6/2018., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF HOMELAND SECURITY served on 3/6/2018; THOMAS HOMAN served on 3/6/2018; KIRSTJEN M. NIELSEN served on 3/6/2018; U.S. IMMIGRATION AND CUSTOM ENFORCEMENT served on 3/6/2018. (See Docket Entry 12 to view document). (znmw) (Entered: 03/08/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Motion Hearing held on 3/8/2018 re 2 MOTION for Temporary Restraining filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. Oral argument heard, and Motion for Temporary Restraining Order is DENIED for reasons stated on the record. Parties are directed to meet and confer on a briefing schedule for Preliminary Injunction and Motion for Class certification by 3/9/18. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 03/08/2018)

03/09/2018 03/13/2018 03/13/2018 03/13/2018 03/16/2018
03/19/2018 03/29/2018

14 Joint STATUS REPORT regarding Preliminary Injunction and Class Certification briefing schedule by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Goettel, Katherine) (Entered: 03/09/2018)
15 SCHEDULING ORDER: See document for details. Signed by Judge Rudolph Contreras on March 13, 2018. (lcrc2) (Entered: 03/13/2018)
Set/Reset Deadlines/Hearings: Response to Preliminary Injunction due by 3/29/2018; Preliminary Injunction Hearing set for 4/3/2018 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 03/13/2018)
16 NOTICE of Appearance by Anne K. Reser on behalf of All Plaintiffs (Reser, Anne) (Entered: 03/13/2018)
17 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on March 8, 2018; Page Numbers: 1-47. Date of Issuance:March 16, 2018. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 4/6/2018. Redacted Transcript Deadline set for 4/16/2018. Release of Transcript Restriction set for 6/14/2018.(pk) (Entered: 03/16/2018)
18 NOTICE of Appearance by Theo Nickerson on behalf of All Defendants (Nickerson, Theo) (Entered: 03/19/2018)
19 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on March 8, 2018; Page Numbers: 1-47. Date of Issuance:March 29, 2018. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the

03/29/2018 03/30/2018 03/30/2018 03/30/2018 04/02/2018 04/03/2018

transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 4/19/2018. Redacted Transcript Deadline set for 4/29/2018. Release of Transcript Restriction set for 6/27/2018.(pk) (Entered: 03/29/2018)
20 Memorandum in opposition to re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Alsterberg, Cara) (Entered: 03/29/2018)
21 AMENDED COMPLAINT against DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Trout Perez, Tia) (Entered: 03/30/2018)
22 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Text of Proposed Order, # 3 Text of Proposed Order)(Trout Perez, Tia) (Entered: 03/30/2018)
23 MOTION for Leave to File by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Text of Proposed Order)(Trout Perez, Tia) (Entered: 03/30/2018)
24 REPLY to opposition to motion re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Trout Perez, Tia) (Entered: 04/02/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Preliminary Injunction hearing held on 4/3/2018. Oral argument heard,

04/12/2018
04/13/2018 04/18/2018 04/18/2018 04/18/2018

and motion taken under advisement. (Court Reporter: Sara Wick.) (tj) (Entered: 04/03/2018)
25 TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING before Judge Rudolph Contreras held on 04/03/2018. Page Numbers: 1-61. Date of Issuance: 04/12/2018. Court Reporter: Sara A. Wick, Telephone number 202-354-3284. Tape Number: N/A. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 5/3/2018. Redacted Transcript Deadline set for 5/13/2018. Release of Transcript Restriction set for 7/11/2018.(Wick, Sara) (Entered: 04/12/2018)
26 RESPONSE re 22 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Entered: 04/13/2018)
MINUTE ORDER granting 23 Plaintiffs' Motion for Leave to File Additional Declarations. Plaintiffs' additional declarations are DEEMED FILED. SO ORDERED. Signed by Judge Rudolph Contreras on April 18, 2018. (lcrc2) (Entered: 04/18/2018)
27 ORDER granting 2 Plaintiffs' Motion for Preliminary Injunction. See document for details. Signed by Judge Rudolph Contreras on April 18, 2018. (lcrc2) (Entered: 04/18/2018)
28 MEMORANDUM OPINION granting 2 Plaintiffs' Motion for Preliminary Injunction. See document for details. Signed by Judge Rudolph Contreras on April 18, 2018. (lcrc2) (Entered: 04/18/2018)

04/18/2018 05/02/2018
05/03/2018
05/03/2018 05/07/2018 05/08/2018 05/08/2018 05/08/2018 05/09/2018

29 ADDITIONAL DECLARATIONS re 2 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (jf) (Entered: 04/19/2018)
30 RESPONSE TO ORDER OF THE COURT re 28 Memorandum & Opinion, 27 Order on Motion for TRO, Order on Motion for Preliminary Injunction filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit Declaration of Jose A. Cortez, Supervisory Deportation and Detention Officer, ICE, Enforcement and Removal Operations, Harlingen, # 2 Exhibit Declaration of Andrew Swierski, Supervisory Deportation and Detention Officer, ICE, Enforcement and Removal Operations, Eloy Detention Center)(Parascandola, Christina) (Entered: 05/02/2018)
31 MEMORANDUM in Opposition re 6 MOTION to Certify Class filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Parascandola, Christina) Modified on 5/3/2018 to correct docket event/text (jf). (Entered: 05/03/2018)
NOTICE OF ERROR re 31 Reply to opposition to Motion; emailed to christina.parascandola@usdoj.gov, cc'd 7 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. DO NOT REFILE (jf, ) (Entered: 05/03/2018)
32 MOTION to Dismiss for Lack of Jurisdiction by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Nickerson, Theo) (Entered: 05/07/2018)
33 NOTICE of Appearance by Paul F. Brinkman on behalf of All Plaintiffs (Brinkman, Paul) (Entered: 05/08/2018)
34 NOTICE of Appearance by Devin Allan DeBacker on behalf of All Plaintiffs (DeBacker, Devin) (Entered: 05/08/2018)
35 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Jacobowski, Amanda) (Entered: 05/08/2018)
36 Amended MOTION to Dismiss for Lack of Jurisdiction corrected version by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Nickerson, Theo) (Entered: 05/09/2018)

05/14/2018 05/21/2018 05/29/2018
06/14/2018 06/27/2018 06/27/2018 07/03/2018 07/09/2018 07/16/2018 08/03/2018

37 REPLY to opposition to motion re 6 MOTION to Certify Class filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Declaration, # 2 Exhibit 1)(Patton, Stephen) (Entered: 05/14/2018)
38 RESPONSE re 36 Amended MOTION to Dismiss for Lack of Jurisdiction corrected version filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Patton, Stephen) (Entered: 05/21/2018)
39 REPLY to opposition to motion re 36 Amended MOTION to Dismiss for Lack of Jurisdiction corrected version filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Nickerson, Theo) (Entered: 05/29/2018)
40 NOTICE OF SUPPLEMENTAL AUTHORITY by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Exhibit A)(Patton, Stephen) (Entered: 06/14/2018)
41 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Netznik, Jamie) (Entered: 06/27/2018)
42 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Powell, Kevin) (Entered: 06/27/2018)
43 NOTICE OF SUPPLEMENTAL AUTHORITY by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Exhibit A)(DeBacker, Devin) (Entered: 07/03/2018)
44 NOTICE OF SUPPLEMENTAL AUTHORITY by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Exhibit A)(DeBacker, Devin) (Entered: 07/09/2018)
45 RESPONSE re 40 NOTICE OF SUPPLEMENTAL AUTHORITY filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Nickerson, Theo) (Entered: 07/16/2018)
46 MOTION to Expedite Discovery by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Text of Proposed Order)(DeBacker, Devin). Added MOTION for Briefing Schedule, MOTION for Hearing on 8/8/2018 (znmw). (Entered: 08/03/2018)

08/17/2018 08/24/2018
08/24/2018 08/27/2018 08/27/2018 08/30/2018
08/30/2018 08/30/2018

47 RESPONSE re 46 MOTION to Expedite Discovery MOTION for Briefing Schedule MOTION for Hearing in opposition filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Text of Proposed Order)(Nickerson, Theo) (Entered: 08/17/2018)
MINUTE ORDER: It is hereby ORDERED that, by September 10, 2018, the parties shall meet, confer, and jointly file a proposed schedule or schedules to govern further proceedings in this matter, assuming that the Court will deny Defendants' motion to dismiss and grant Plaintiffs' motion for class certification. It is FURTHER ORDERED that the parties shall appear for a status conference on September 14, 2018 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. SO ORDERED. Signed by Judge Rudolph Contreras on August 24, 2018. (lcrc2) (Entered: 08/24/2018)
48 REPLY to opposition to motion re 46 MOTION to Expedite Discovery MOTION for Briefing Schedule MOTION for Hearing filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Patton, Stephen) (Entered: 08/24/2018)
Set/Reset Deadlines/Hearings: Status Conference set for 9/14/2018 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 08/27/2018)
Set/Reset Deadlines: Proposed Briefing Schedule due by 9/10/2018 (tj) (Entered: 08/27/2018)
MINUTE ORDER: Upon consideration of 22 Plaintiff's Motion for Leave to File Under Seal, [22-1] Plaintiff's Motion for Leave to Proceed Under a Pseudonym, and Defendants' lack of opposition to either motion, it is hereby ORDERED that Plaintiff's motions are GRANTED. Plaintiff may proceed in this matter under the pseudonym Ana P. SO ORDERED. Signed by Judge Rudolph Contreras on August 30, 2018. (lcrc2) (Entered: 08/30/2018)
49 ORDER denying 36 Defendants' Motion to Dismiss Plaintiffs' Amended Complaint; and granting 6 Plaintiffs' Motion for Class Certification. See document for details. Signed by Judge Rudolph Contreras on August 30, 2018. (lcrc2) (Entered: 08/30/2018)
50 MEMORANDUM OPINION denying 36 Defendants' Motion to Dismiss Plaintiffs' Amended Complaint; and granting 6 Plaintiffs' Motion for

09/10/2018 09/13/2018 09/14/2018 09/14/2018
09/14/2018
09/14/2018 09/21/2018

Class Certification. See document for details. Signed by Judge Rudolph Contreras on August 30, 2018. (lcrc2) (Entered: 08/30/2018)
51 MEET AND CONFER STATEMENT. (Goettel, Katherine) (Entered: 09/10/2018)
52 ANSWER to 21 Amended Complaint, by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT.(Parascandola, Christina) (Entered: 09/13/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Status Conference held on 9/14/2018. Parties advise the court of the status of this action. Order to follow by the court. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 09/14/2018)
MINUTE ORDER: As stated on the record at the September 14, 2018 status conference, discovery in this matter shall commence today, September 14, 2018, and shall be completed by January 15, 2019. By September 21, 2018, the parties shall meet, confer, and submit a Joint Status Report that: (1) proposes any interim discovery deadlines; (2) indicates whether the parties wish to be referred to a Magistrate Judge for mediation; and (3) addresses any other issues raised at today's status conference or otherwise. SO ORDERED. Signed by Judge Rudolph Contreras on September 14, 2018. (lcrc2) (Entered: 09/14/2018)
MINUTE ORDER denying 46 Plaintiffs' Motion to Expedite Discovery: On August 3, 2018, Plaintiffs filed a Motion for Expedited Discovery and a Briefing Schedule and Hearing with Respect to Plaintiffs' Motion for Class-Wide Preliminary Injunction. Since Plaintiffs filed that motion, this Court has denied Defendants' motion to dismiss, granted Plaintiffs' motion for class certification, and set a deadline for discovery in this matter. In light of these developments, and for the reasons stated on the record at the September 14, 2018 status conference, the Court DENIES 46 Plaintiffs' Motion to Expedite Discovery, in part as moot and in part on the merits. As explained at the September 14, 2018 status conference, Plaintiffs are not precluded from renewing their motion for preliminary injunction in response to developments during the discovery period. SO ORDERED. Signed by Judge Rudolph Contreras on September 14, 2018. (lcrc2) (Entered: 09/14/2018)
Set/Reset Deadlines: Discovery due by 1/15/2019. Status Report due by 9/21/2018 (tj) (Entered: 09/14/2018)
53 Joint STATUS REPORT by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Patton, Stephen) (Entered: 09/21/2018)

09/24/2018 09/25/2018
09/25/2018 10/03/2018

54 SCHEDULING ORDER. See document for details. Signed by Judge Rudolph Contreras on September 24, 2018. (lcrc3) (Entered: 09/24/2018)
Set/Reset Deadlines: Disclosures due by 9/21/2018; Responses due by 10/4/2018; Expert Disclosures due by 12/15/2018; Initial Telephone Conference set for 9/28/2018 at 2:30 PM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 09/25/2018)
55 NOTICE of Appearance by Benjamin Jay Zeitlin on behalf of All Defendants (Zeitlin, Benjamin) (Entered: 09/25/2018)
MINUTE ORDER: For the reasons stated on the record during the September 28, 2018 telephone hearing, it is hereby ORDERED that the parties shall submit the following materials: First, on or before October 5, 2018, the parties shall submit proposed protective orders governing the production of personal identifying information or other privacy protected information contained in the class members' "A files" or in other records responsive to discovery requests. Second, on or before October 12, 2018, the government shall collect "A files" for ten of the class members, review those files with the Plaintiffs, and determine what information in the files is responsive to the Plaintiffs' document requests. In the meantime, the government shall immediately begin the process of locating and collecting the A files for all class members. On or before October 17, 2018 the parties shall file a joint status report containing proposals for how the parties will address production of the "A files" going forward. Third, the parties shall submit proposals identifying which ICE facilities should be searched for emails and documents, which custodians' emails and documents should be collected and searched from those facilities (the juvenile coordinator, juvenile enforcement officers, their supervisors), and which search terms should be applied to the searches for those emails and documents. Fourth, the parties shall submit proposals identifying the custodians at ICE's headquarters from whom emails and documents should be collected and searched, and identifying the search terms to be applied to those documents. For the third and fourth items, the parties shall exchange initial proposals on or before October 3, 2018 and file with the Court a joint status report containing their final proposals on or before October 5, 2018. Sixth, by October 5, 2018, the parties shall agree on a set of dates on which counsel for both parties are available to depose the third-party witnesses discussed during the telephone hearing (both fact depositions and depositions to preserve testimony for trial). Seventh, by October 5, 2018, the government shall send to plaintiffs a list of the identities of all class members and the name of the ICE facility at which each class member is held. SO ORDERED. Signed by Judge Rudolph Contreras on 10/3/2018. (lcrc2) (Entered: 10/03/2018)

10/04/2018 10/04/2018
10/05/2018 10/05/2018 10/09/2018 10/09/2018

56 MOTION for Protective Order by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order Proposed Protective Order)(Parascandola, Christina) (Entered: 10/04/2018)
57 MOTION to Amend/Correct 56 MOTION for Protective Order by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Errata Amended Motion, # 2 Text of Proposed Order Proposed Protective Order, # 3 Exhibit Original motion, # 4 Text of Proposed Order Proposed Order Granting Leave to Amend)(Parascandola, Christina) (Entered: 10/04/2018)
58 STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit Exhibit A Proposals pursuant to the Courts Order of October 3 2018)(Parascandola, Christina) (Entered: 10/05/2018)
59 STATUS REPORT regarding discovery by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Ex. A - Plaintiffs' Proposed Search Terms, # 2 Ex. B - Sept. 2018 FOIA Response from ICE, # 3 Ex. C - Blacklined Proposed Protective Order, # 4 Ex. D - Email regarding joint statement)(Goettel, Katherine) (Entered: 10/05/2018)
Set/Reset Hearings: Telephone Conference set for 10/12/2018, 10/19/18 at 02:30 PM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 10/09/2018)
60 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on September 14, 2018; Page Numbers: 1-21. Date of Issuance:October 9, 2018. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_Kaneshiro-Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such

10/09/2018
10/10/2018 10/11/2018

requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 10/30/2018. Redacted Transcript Deadline set for 11/9/2018. Release of Transcript Restriction set for 1/7/2019.(pk) (Entered: 10/09/2018)
61 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on September 28, 2018; Page Numbers: 1-48. Date of Issuance:October 9, 2018. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_Kaneshiro-Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 10/30/2018. Redacted Transcript Deadline set for 11/9/2018. Release of Transcript Restriction set for 1/7/2019.(pk) (Entered: 10/09/2018)
62 NOTICE OF APPEARANCE for Defendants by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Schultz, Evan); Modified text on 10/12/2018 (tth). (Entered: 10/10/2018)
63 ORDER granting 57 Defendants' Amended Motion for Protective Order. At the October 12, 2018 telephone hearing, the parties should be prepared to discuss Paragraph 2.c, involving the names, telephone numbers, and electronic mail addresseses of federal government employees. Until the issues is ultimately resolved, Plaintiffs may show, but not provide copies of, this information to witnesses, consultants, and experts. In all other respects, see document for details. SO ORDERED. Signed by Judge Rudolph Contreras on 10/11/2018. (lcrc2) (Entered: 10/11/2018)

10/12/2018 10/12/2018
10/17/2018 10/19/2018 10/19/2018
10/19/2018 10/24/2018

Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 10/12/2018. Parties report the status of this action. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 10/12/2018)
MINUTE ORDER: For the reasons stated on the record at the October 12, 2018 telephone hearing, it is hereby ORDERED that Defendants shall begin searching for responsive documents in the possession of any individuals at the San Antonio, San Francisco, and Phoenix field offices holding the custodial positions identified in 59 Plaintiffs' October 5, 2018 Status Report. It is FURTHER ORDERED that Defendants shall begin searching for responsive documents in the possession of any individuals at ICE headquarters holding the custodial positions identified in Plaintiffs' October 5, 2018 Status Report. To perform these searches, Defendants shall use the search terms that Plaintiffs identified in their October 5, 2018 Status Report. Defendants should be prepared to discuss the results of these searches at the October 19, 2018 telephone hearing. SO ORDERED. Signed by Judge Rudolph Contreras on 10/12/2018. (lcrc2) (Entered: 10/12/2018)
64 Joint STATUS REPORT regarding the production of A-files by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Goettel, Katherine) (Entered: 10/17/2018)
65 NOTICE regarding E discovery by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re Order,,, (Attachments: # 1 Declaration)(Kisor, Colin) (Entered: 10/19/2018)
MINUTE ORDER: For the reasons stated on the record at the October 19, 2018 telephone hearing, it is hereby ORDERED that, by close of business on October 23, 2018, Defendants shall submit unredacted and redacted copies of one A-File for the Court's in camera review. The particular A-File that is submitted shall be one chosen by Plaintiffs, and it should include redactions based on claims of deliberative process privilege. SO ORDERED. Signed by Judge Rudolph Contreras on 10/19/2018. (lcrc2) (Entered: 10/19/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 10/19/2018. Order to follow. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 10/19/2018)
66 NOTICE of Filing by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Zeitlin, Benjamin) (Entered: 10/24/2018)

10/26/2018 10/29/2018
10/30/2018 11/01/2018 11/02/2018

Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 10/26/2018. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 10/26/2018)
MINUTE ORDER: For the reasons stated on the record during the October 26, 2018 telephone hearing, it is hereby ORDERED that the parties shall take the following actions. First, the parties shall file submissions addressing the applicability of the deliberative process privilege to documents produced in this action. As part of these submissions, the parties should specifically address the claim of deliberative process privilege over a Parole Determination Worksheet in the example A-File that the Court has reviewed in camera. If the parties wish, their submissions may also discuss the applicability of 8 U.S.C. § 1367 and 8 C.F.R. § 208.6 to the production of documents in this case. Defendants shall file their submission by the close of business on October 30, 2018, and Plaintiffs shall file their response by close of business on November 1, 2018. The submissions shall be limited to five pages in length. Second, Defendants shall produce 5 A-Files to Plaintiffs by November 2, 2018, and 7 additional A-Files by November 9, 2018. Third, Defendants shall collect all emails in the possession of all individuals holding the position of Juvenile Coordinator at the ten field offices identified in 59 Plaintiff's October 5, 2018 Status Report and export them to PST files. Defendants shall make a good faith effort to convert all ten custodians' emails to PST files by November 2, 2018. At the November 2 telephone hearing, defendants should be prepared to discuss how long this process is taking and share the size of the files they have successfully exported. SO ORDERED. Signed by Judge Rudolph Contreras on 10/29/2018. (lcrc2) (Entered: 10/29/2018)
67 RESPONSE TO ORDER OF THE COURT re Order,,,,,, regarding Deliberative Process Privilege filed by THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Parascandola, Christina) (Entered: 10/30/2018)
68 RESPONSE TO ORDER OF THE COURT re Order,,,,,, regarding Deliberative Process Privilege filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit A)(Patton, Stephen) (Entered: 11/01/2018)
69 NOTICE of compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re Order,,,,,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Declaration)(Kisor, Colin) (Entered: 11/02/2018)

11/02/2018 11/02/2018
11/05/2018 11/06/2018 11/09/2018

Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 11/2/2018. (Court Reporter: Patricia Kanshiro Miller.) (tj) (Entered: 11/02/2018)
MINUTE ORDER: For the reasons stated on the record during the November 2, 2018 telephone hearing, the following is hereby ORDERED: First, by November 9, 2018, Defendants shall use their best efforts to transfer the 14 custodians' (Juvenile Coordinators) documents that are currently in PST format into a search-ready format in Relativity. Second, as soon as 2 custodians' documents are in search-ready format in Relativity, Defendants shall begin running Relativity searches on the documents, using the search terms provided in Exhibit A to 59 Plaintiffs October 5, 2018 status report. These searches shall continue on an ongoing basis as additional documents become search-ready, in consultation with Plaintiffs regarding how to narrow the search terms to more precisely capture responsive documents. Third, at least one lawyer representing each party who is knowledgeable on ESI (e.g., Ms. Davila, Ms. Trout-Perez) shall attend a meet-and-confer to take place no later than November 8, 2018, at which these representatives shall discuss whatever ESI-related issues the parties are facing, including the possibility of narrowing the Relativity search terms. Fourth, by November 9, 2018, Defendants shall collect the emails in the possession of Mellissa Harper and export them to PST files. Fifth, by November 6, 2018, Defendants shall file a declaration from someone knowledgeable with the ESI-collection process that addresses the resource and technical constraints that prevent Defendants from collecting ESI any faster than they are currently collecting. This declaration should specifically discuss any problems Defendants would face if they were ordered to export certain custodians' documents to PST files while simultaneously transferring other custodians' PST files to Relativity. SO ORDERED. Signed by Judge Rudolph Contreras on 11/2/2018. (lcrc2) (Entered: 11/02/2018)
70 ORDER: See document for details. Signed by Judge Rudolph Contreras on 11/5/2018. (lcrc2) (Entered: 11/05/2018)
71 RESPONSE TO ORDER OF THE COURT re Order,,,,,,, of November 2, 2018 filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Declaration)(Parascandola, Christina) (Entered: 11/06/2018)
72 NOTICE of Appearance by Yamileth G. Davila on behalf of All Defendants (Davila, Yamileth) (Entered: 11/09/2018)

11/09/2018 11/09/2018 11/09/2018 11/13/2018
11/15/2018

73 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Form)(Parascandola, Christina) (Entered: 11/09/2018)
74 RESPONSE TO ORDER OF THE COURT re Order,,,,,,, Order,,,,,, of Nov. 2, 2018 filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Parascandola, Christina) (Entered: 11/09/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 11/9/2018. (Court Reporter: Lisa Edwards.) (tj) (Entered: 11/09/2018)
MINUTE ORDER: For the reasons stated on the record during the November 9, 2018 telephone hearing, the following is hereby ORDERED: First, Defendants shall collect the emails from the following custodians: Juanita Hester, Matt Albence, and Natalie Asher and export them to PST files. Defendants shall also collect and export to PST files the emails in the possession of all individuals holding the position of Deportation Officer at the San Antonio, Phoenix, and Houston field offices who have worked on juvenile detention matters/cases, as well as those individuals' immediate supervisors. Defendants shall use their best efforts to have all of the above-described emails transferred into searchready format in Relativity by November 16, 2018. If they are unable to complete all of these transfers by November 16, Defendants shall file a submission with the Court by the close of business on November 15, 2018, explaining the progress that has been made and the constraints that prevented them from making further progress. Second, Defendants shall produce 7 A-Files to Plaintiffs by November 16, 2018. Third, by the close of business on November 13, 2018, Defendants shall provide Plaintiffs with a new search term report based on the use of Defendants' proposed amendments to Plaintiffs' search terms. The parties shall then meet and confer about this search report by November 14, 2018 and work collaboratively to attempt to finalize the search terms to be used moving forward. SO ORDERED. Signed by Judge Rudolph Contreras on 11/13/2018. (lcrc2) (Entered: 11/13/2018)
75 MOTION for Protective Order Concerning Defendants' Depositions of Named Plaintiffs Wilmer Garcia Ramirez and Ana P. by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D,

11/15/2018
11/16/2018 11/16/2018 11/23/2018 11/26/2018

# 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Certificate of Counsel, # 9 Text of Proposed Order)(Trout Perez, Tia) (Entered: 11/15/2018)
76 RESPONSE TO ORDER OF THE COURT re Order,,,,,, of November 13, 2018 filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Parascandola, Christina) (Entered: 11/15/2018)
77 REDACTED DOCUMENT- Exhibit to 75 MOTION for Protective Order Concerning Defendants' Depositions of Named Plaintiffs Wilmer Garcia Ramirez and Ana P. by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit E)(Trout Perez, Tia) (Entered: 11/16/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 11/16/2018. (Court Reporter: Jeff Hook.) (tj) (Entered: 11/16/2018)
78 STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 11/23/2018)
79 TRANSCRIPT OF TELEPHONIC CONFERENCE before Judge Rudolph Contreras held on November 9, 2018; Page Numbers: 1-43. Date of Issuance: November 26, 2018. Court Reporter/Transcriber Lisa Edwards, Telephone number (202) 354-3269. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

11/27/2018
11/29/2018 11/30/2018 11/30/2018

Redaction Request due 12/17/2018. Redacted Transcript Deadline set for 12/27/2018. Release of Transcript Restriction set for 2/24/2019.(Edwards, Lisa) (Entered: 11/26/2018)
80 TRANSCRIPT OF TELEPHONIC CONFERENCE before Judge Rudolph Contreras held on November 16, 2018. Page Numbers: 1 - 32. Date of Issuance: November 27, 2018. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court repo rter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 12/18/2018. Redacted Transcript Deadline set for 12/28/2018. Release of Transcript Restriction set for 2/25/2019.(Hook, Jeff) (Entered: 11/27/2018)
81 Memorandum in opposition to re 75 MOTION for Protective Order Concerning Defendants' Depositions of Named Plaintiffs Wilmer Garcia Ramirez and Ana P. filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 11/29/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 11/30/2018. (Court Reporter: Timothy Miller.) (tj) (Entered: 11/30/2018)
MINUTE ORDER: For the reasons stated on the record during the November 30, 2018 telephone hearing, the following is hereby ORDERED: First, Defendants shall produce 10 additional A-Files to Plaintiffs by December 7, 2018. Second, Defendants shall provide to Plaintiffs a new search term report and Defendants' continuous active learning protocol proposal by close of business on December 3, 2018. Third, by close of business on December 4, 2018, Defendants shall provide to Plaintiffs their proposed schedule regarding the rolling

12/05/2018 12/06/2018 12/07/2018 12/07/2018
12/07/2018 12/10/2018

production of ESI. On December 5, 2018, the parties shall hold a telephone conference to discuss their respective proposals as to the rolling production of ESI. If the parties are unable to reach an agreement during this telephone conference, Defendants shall immediately begin producing ESI in accordance with their proposed schedule. The Court will then, if necessary, make a ruling as to the appropriate schedule for production moving forward at the telephone hearing to take place on December 7, 2018. Moreover, the telephone hearing previously scheduled for December 21 at 2:30 p.m. is rescheduled for December 20 at that same time. The Court may move the time of the telephone hearing currently set for December 7 for later that day. SO ORDERED. Signed by Judge Rudolph Contreras on November 30, 2018. (lcrc2) (Entered: 11/30/2018)
82 REPLY to opposition to motion re 75 MOTION for Protective Order Concerning Defendants' Depositions of Named Plaintiffs Wilmer Garcia Ramirez and Ana P. filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Trout Perez, Tia) (Entered: 12/05/2018)
NOTICE of Hearing: Telephone Conference currently scheduled for 12/7/18 at 2:30pm, is hereby RESCHEDULED for 12/7/2018 at 04:30 PM in Chambers before Judge Rudolph Contreras (tj) (Entered: 12/06/2018)
83 Unopposed MOTION to Continue today's telephonic hearing by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Kisor, Colin) (Entered: 12/07/2018)
MINUTE ORDER granting 83 Motion to Continue: It is hereby ORDERED that the unopposed motion is GRANTED. The telephone hearing scheduled for today at 4:30 pm is RESCHEDULED for Monday, December 10, 2018 at 4:00 pm in Chambers. SO ORDERED. Signed by Judge Rudolph Contreras on December 7, 2018. (lcrc2) (Entered: 12/07/2018)
84 ORDER granting 75 Motion for Protective Order: See document for details. Signed by Judge Rudolph Contreras on December 7, 2018. (lcrc2) (Entered: 12/07/2018)
MINUTE ORDER: It is hereby ORDERED that the telephone hearing scheduled for today, December 10, 2018 at 4:00 pm is RESCHEDULED for December 12, 2018 at 4:00 pm in Chambers. The telephone hearing scheduled for December 14, 2018 at 2:30 pm is also CANCELLED. SO ORDERED. Signed by Judge Rudolph Contreras on December 10, 2018. (lcrc2) (Entered: 12/10/2018)

12/12/2018
12/12/2018 12/12/2018 12/17/2018 12/17/2018 12/18/2018 12/18/2018 12/18/2018

MINUTE ORDER: For the reasons stated on the record at the December 12, 2018 telephone hearing, the following is hereby ORDERED: First, Defendants will produce the next four A Files to Plaintiffs by the time of the next scheduled telephone hearing at 2:30 pm on December 20, 2018. Second, Defendants will produce the Chicago Field Office Juvenile Coordinator (Mr. Pebbles) for deposition upon notice by Plaintiffs. Defendants may, if they choose, file a motion for reimbursement of costs incurred as a result of the deposition being postponed from its originally scheduled date. Third, Plaintiffs will file their written ESI proposal by the end of the day, today, December 12. Defendants will then file their written proposal and response by 5 pm on December 17. Fourth, the deadline for the parties to serve their expert disclosure and reports is extended to January 15, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on December 12, 2018. (lcrc2) (Entered: 12/12/2018)
85 MEMORANDUM by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit Exhibit A (Defendants' Protocol), # 2 Exhibit Exhibit B (Defendants' ESI Review Plan))(Trout Perez, Tia) (Entered: 12/12/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 12/12/2018. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 12/13/2018)
86 RESPONSE to Plaintiffs' Proposed Plan for Production of ESI and Memorandum filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Certificate of Service)(Davila, Yamileth) (Entered: 12/17/2018)
87 NOTICE of filing of declaration by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re 86 Response to Document, (Attachments: # 1 Declaration Declaration of Michael P. Davis)(Parascandola, Christina) (Entered: 12/17/2018)
88 NOTICE of Appearance by Kevin Charles Hirst on behalf of All Defendants (Hirst, Kevin) (Entered: 12/18/2018)
92 NOTICE of Appearance by Ruben Loyo on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (tth) (Entered: 01/07/2019)
97 NOTICE of Appearance by Gianna Borroto on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (tth) (Entered: 01/15/2019)

12/20/2018 12/20/2018
12/20/2018 12/21/2018

MINUTE ORDER: It is hereby ORDERED that additional weekly telephone status conferences are scheduled for January 11, 18, and 25, 2019. A telephone conference is also tentatively scheduled for February 1, 2019. Each telephone conference will begin at 2:30 pm. Once all the parties are on one line, they will jointly call chambers at (202) 354-3520. SO ORDERED. Signed by Judge Rudolph Contreras on December 20, 2018. (lcrc2) (Entered: 12/20/2018)
MINUTE ORDER: For the reasons stated on the record at the December 20, 2018 telephone hearing, the following is hereby ORDERED: First, Defendants will promptly disclose to Plaintiffs whatever metrics they are using to train and validate their Active Learning application and ensure the application's accuracy. To the extent these metrics change over time, Defendants will supplement their disclosures as the metrics change. Second, once the Active Learning application has been trained and validated, Defendants will perform their privilege review on the responsive documents, and begin rolling production, by prioritizing the documents that the application has deemed the most responsive (or most likely to be responsive), unless the parties reach a different agreement. Third, Defendants will use their best efforts to begin making weekly rolling productions of responsive ESI from the first eighteen custodians as soon as possible, and all responsive ESI from those first eighteen custodians, including documents that could not be submitted to Active Learning for responsiveness review, must be produced to Plaintiffs no later than February 1, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on December 20, 2018. (lcrc2) (Entered: 12/20/2018)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 12/20/2018. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 12/26/2018)
89 TRANSCRIPT OF TELEPHONE CONFERNCE before Judge Rudolph Contreras held on 11-30-18; Page Numbers: 1-37; Date of Issuance: 1221-18; Court Reporter: Timothy R. Miller, Telephone number (202) 3543111. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced ab ove. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER

12/26/2018 12/26/2018
12/28/2018 12/31/2018

without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 1/11/2019. Redacted Transcript Deadline set for 1/21/2019. Release of Transcript Restriction set for 3/21/2019.(Miller, Timothy) (Entered: 12/21/2018)
Set/Reset Hearings: Telephone Conference set for 1/11/2018 at 02:30 PM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 12/26/2018)
90 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on December 20, 2018; Page Numbers: 1-25. Date of Issuance:December 26, 2018. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_Kaneshiro-Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 1/16/2019. Redacted Transcript Deadline set for 1/26/2019. Release of Transcript Restriction set for 3/26/2019.(pk) (Entered: 12/26/2018)
91 Unopposed MOTION to Stay DURING LAPSE OF APPROPRIATIONS by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 12/28/2018)
MINUTE ORDER denying 91 Defendants' Motion to Stay. The government asks this Court to stay this action because the current lapse in appropriations to federal agencies (i.e. the government shutdown) prohibits the government's attorneys and relevant other employees "from working, even on a voluntary basis, except in very limited circumstances...." Defs.' Mot. at 2, ECF No. 91. Although the Court is

01/10/2019 01/11/2019

mindful of the government shutdown, where there is (1) "some reasonable and articulable connection between the [government] function to be performed and the safety of human life or the protection of property"; and (2) "the safety of human life or the protection of property would be compromised, in some degree, by delay," the government function at issue may continue during such a shutdown. 43 Op. Att'y Gen. 293, 302 (Jan. 16, 1981); see also 31 U.S.C. § 1342 (stating that government employees may continue to provide services during a shutdown, in response to "emergencies involving the safety of human life"). This is just such a case. In seeking several delays to date, the government has at times seemed to forget what this case is about: the allegedly unnecessary and illegal detention of young adults in restrictive detention facilities. While these allegations have not yet been fully litigated on their merits, Plaintiffs demonstrated in their successful preliminary injunction motion that they are likely to succeed. See Ramirez v. ICE, 310 F. Supp. 3d 7, 29-30 (D.D.C. 2018). Furthermore, according to government reports, 48% of employees from the Executive Office for Immigration Review will be retained during the shutdown "to process all immigration cases and appeals involving detained aliens," see DOJ, FY 2019 Contingency Plan, at 5, 12 (Sept. 11, 2018), and approximately 91% of Customs and Border Protection employees and 81% of ICE employees will similarly be retained, see DHS, Procedures Relating to a Lapse in Appropriations, at 35-37 (Dec. 17, 2018). If the government can allocate resources during the shutdown to staff the facilities in which Plaintiffs are detained (again, allegedly unnecessarily and illegally), it can allocate resources to staff the defense of Plaintiffs' action. Accordingly, and in line with decisions by other courts in this jurisdiction regarding substantially similar government motions, see Minute Order, O.A. v. Trump, No. 18-2718 (D.D.C. Dec. 27, 2018); Minute Order, Grace v. Sessions, No. 18-1853 (D.D.C. Dec. 27, 2018), it is hereby ORDERED that this action shall not be stayed. It is FURTHER ORDERED that the government shall comply with the ESI discovery schedule recently adopted by this Court, and that the weekly discovery conference calls shall continue as scheduled, regardless of the shutdown. SO ORDERED. Signed by Judge Rudolph Contreras on December 31, 2018. (lcrc3) (Entered: 12/31/2018)
93 STIPULATION pursuant to Federal Rule of Evidence 502(d) by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Certificate of Service)(Parascandola, Christina) (Entered: 01/10/2019)
94 MOTION to Clarify re Order,,,, Order on Motion to Stay,,,,,,,,,,, by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM

01/11/2019
01/11/2019 01/11/2019 01/14/2019 01/16/2019 01/17/2019 01/18/2019 01/18/2019

ENFORCEMENT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Parascandola, Christina). Added MOTION for Reconsideration on 1/14/2019 (znmw). (Entered: 01/11/2019)
95 NOTICE of Proposed Order Granting Defendants' Motion for Clarification of the Court's Order of December 20, 2018 and Reconsideration of Its Order of December 31, 2018 by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re 94 MOTION to Clarify re Order,,,, Order on Motion to Stay. (Attachments: # 1 Certificate of Service)(Parascandola, Christina) (Entered: 01/11/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 1/11/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 01/11/2019)
96 NOTICE of Proposed Order by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Trout Perez, Tia) (Entered: 01/11/2019)
MINUTE ORDER: It is hereby ORDERED that the deadline for the parties to serve their expert disclosures and reports is extended to March 1, 2019, and that the cutoff for completing fact discovery is extended to March 1, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on January 14, 2019. (lcrc2) (Entered: 01/14/2019)
98 Unopposed MOTION for Extension of Time to produce first rolling production of ESI, by one day by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 01/16/2019)
MINUTE ORDER granting 98 Unopposed Motion for Extension of Time: It is hereby ORDERED that the motion is GRANTED. Defendants shall have until January 17, 2019 to complete the first rolling production of ESI. SO ORDERED. Signed by Judge Rudolph Contreras on January 17, 2019. (lcrc2) (Entered: 01/17/2019)
99 NOTICE DEFENDOF STATUS OF REVIEW AND PRODUCTION OF ESI by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Davila, Yamileth) (Entered: 01/18/2019)
100 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on January 11, 2019; Page Numbers: 1-20. Date of Issuance:January

01/18/2019 01/18/2019
01/18/2019 01/23/2019

18, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/8/2019. Redacted Transcript Deadline set for 2/18/2019. Release of Transcript Restriction set for 4/18/2019.(pk) (Entered: 01/18/2019)
101 STIPULATION regarding number of depositions by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Goettel, Katherine) (Entered: 01/18/2019)
MINUTE ORDER: For the reasons stated on the record at the January 18, 2019 telephone hearing, it is hereby ORDERED that the February 1, 2019 deadline for the production of ESI is tolled with respect to all documents that are not reviewable by the Active Learning application. The parties will meet and confer regarding how Defendants should prioritize review of non-excluded documents that cannot be reviewed using Active Learning, and the parties should be prepared to discuss the issue at the January 25 telephone hearing. It is FURTHER ORDERED that, by January 25, Defendants will produce all age-out forms requested by Plaintiffs. Defendants need not, however, produce the attachments at that time. SO ORDERED. Signed by Judge Rudolph Contreras on January 18, 2019. (lcrc2) (Entered: 01/18/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 1/18/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 01/18/2019)
102 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on January 18, 2019; Page Numbers: 1-16. Date of Issuance:January 23, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order

01/24/2019 01/25/2019

Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/13/2019. Redacted Transcript Deadline set for 2/23/2019. Release of Transcript Restriction set for 4/23/2019.(pk) (Entered: 01/23/2019)
103 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on October 26, 2018; Page Numbers: 1-48. Date of Issuance:January 24, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_Kaneshiro-Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/14/2019. Redacted Transcript Deadline set for 2/24/2019. Release of Transcript Restriction set for 4/24/2019.(pk) (Entered: 01/24/2019)
MINUTE ORDER: For the reasons stated on the record at the January 25, 2019 telephone hearing, it is hereby ORDERED that Defendants shall file a status report by close of business on January 28, 2019 explaining how they plan to meet the February 1 deadline for production of ESI. The status report should also address the following questions: Of the the documents that were deemed responsive by Active Learning but that are now being withheld by Defendants, what percentage is being withheld due to privilege? What percentage is being withheld due to a subsequent layer of responsiveness review beyond Active Learning? And

01/25/2019 01/28/2019 01/30/2019 01/30/2019
02/01/2019

are documents deemed responsive being withheld for any additional reasons(s)? Finally, it is FURTHER ORDERED that, before the next telephone hearing on February 1, 2019, the parties will meet and confer regarding the next group of ESI custodians to be subject to Active Learning review. SO ORDERED. Signed by Judge Rudolph Contreras on January 25, 2019. (lcrc2) (Entered: 01/25/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 1/25/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 01/25/2019)
104 STATUS REPORT Regarding ESI Review and Production by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Davila, Yamileth) (Entered: 01/28/2019)
105 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Fombonne, Jonathan) (Entered: 01/30/2019)
106 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on January 25, 2019; Page Numbers: 1-15. Date of Issuance:January 30, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/20/2019. Redacted Transcript Deadline set for 3/2/2019. Release of Transcript Restriction set for 4/30/2019.(pk) (Entered: 01/30/2019)
MINUTE ORDER: For the reasons stated on the record at the February 1, 2019 telephone hearing, it is hereby ORDERED that the deadline for production of Active-Learning-reviewed ESI from the first eighteen document custodians is extended to February 15, 2019. It is FURTHER ORDERED that, by February 11, the parties will meet and confer and

02/01/2019 02/11/2019 02/12/2019
02/15/2019 02/15/2019 02/15/2019

file a joint status report outlining their respective positions on the following: (1) the prioritization of ESI custodians to make up the next batch of documents to be subject to Active Learning review; (2) the scope and timeline for production of the supporting documents attached to the age-out worksheets already produced to Plaintiffs; and (3) the timeline for production of the documents from the first eighteen custodians that were excluded from Active Learning review. SO ORDERED. Signed by Judge Rudolph Contreras on February 1, 2019. (lcrc2) (Entered: 02/01/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 2/1/2019. Next Telephone Conference set for 2/15/2019 at 02:30 PM in Chambers before Judge Rudolph Contreras (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 02/01/2019)
107 Joint STATUS REPORT by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Trout Perez, Tia) (Entered: 02/11/2019)
MINUTE ORDER: Upon consideration of 107 the Parties' Joint Status Report, it is hereby ORDERED that, prior to the telephone conference scheduled for February 15, 2019, the parties will meet and confer regarding the comprehensive discovery proposal set forth by Plaintiffs in the Joint Status Report. The parties should then be prepared to discuss that proposal at the February 15 telephone conference. SO ORDERED. Signed by Judge Rudolph Contreras on February 12, 2019. (lcrc2) (Entered: 02/12/2019)
108 MOTION for Protective Order Concerning ESI Custodians by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Exhibit EXH A Defendants' ESI Custodian Chart, # 2 Exhibit EXH B Goettel Email)(Davila, Yamileth) (Entered: 02/15/2019)
109 Amended MOTION for Protective Order Concerning ESI Custodians by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Exhibit EXH A Defendants' ESI Custodian Chart, # 2 Exhibit EXH B Goettel Email, # 3 Exhibit EXH C Trout Perez Email, # 4 Exhibit EXH D Bates 5085-5099, # 5 Text of Proposed Order)(Davila, Yamileth) (Entered: 02/15/2019)
110 NOTICE of Filing of Custodian List by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Attachment A)(Trout Perez, Tia) (Entered: 02/15/2019)

02/15/2019 02/15/2019 02/15/2019 02/19/2019 02/22/2019
02/22/2019 02/22/2019

111 ORDER concerning the immediate production of ESI: See document for details. Signed by Judge Rudolph Contreras on February 15, 2019. (lcrc2) (Entered: 02/15/2019)
112 STIPULATED ORDER pursuant to Federal Rule of Evidence 502(d): See document for details. Signed by Judge Rudolph Contreras on February 15, 2019. (lcrc2) (Entered: 02/15/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 2/15/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 02/22/2019)
113 DISCOVERY SCHEDULING ORDER: See document for details. Signed by Judge Rudolph Contreras on February 19, 2019. (lcrc2) (Entered: 02/19/2019)
114 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on February 15, 2019; Page Numbers: 1-33. Date of Issuance:February 22, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_Kaneshiro-Miller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/15/2019. Redacted Transcript Deadline set for 3/25/2019. Release of Transcript Restriction set for 5/23/2019.(pk) (Entered: 02/22/2019)
115 STATUS REPORT on discovery by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Appendix search term report)(Kisor, Colin) (Entered: 02/22/2019)
MINUTE ORDER: It is hereby ORDERED that the March 1, 2019 telephone hearing will begin at 3:00 p.m. The parties should note the change from the normal time. SO ORDERED. Signed by Judge Rudolph Contreras on February 22, 2019. (lcrc2) (Entered: 02/22/2019)

02/22/2019
02/22/2019 02/25/2019
02/25/2019 02/27/2019 03/01/2019 03/01/2019

MINUTE ORDER: For the reasons stated on the record at the February 22, 2019 telephone hearing, it is hereby ORDERED that the deadline for Defendants to begin ESI productions from the next group of document custodians is extended to March 8, 2019. By March 1, at least one lawyer representing each party who is knowledgeable on ESI (e.g., Ms. Davila, Ms. Trout-Perez) shall meet and confer to discuss why Active Learning will need to be trained and validated again with respect to this second batch of ESI (assuming that is the case), and how long such a process will take. The parties should then be prepared to discuss the matter at the March 1 telephone hearing. SO ORDERED. Signed by Judge Rudolph Contreras on February 22, 2019. (lcrc2) (Entered: 02/22/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 2/22/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 02/22/2019)
116 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14)(Trout Perez, Tia) (Entered: 02/25/2019)
117 RESPONSE re 109 Amended MOTION for Protective Order Concerning ESI Custodians filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit 2)(Trout Perez, Tia) (Entered: 02/25/2019)
Set/Reset Hearings: Telephone Conference set for 3/1/2019 at 03:00 PM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 02/27/2019)
118 STATUS REPORT on discovery compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 03/01/2019)
119 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on February 22, 2019; Page Numbers: 1-7. Date of Issuance:March 1, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or

03/04/2019
03/06/2019 03/06/2019

purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/22/2019. Redacted Transcript Deadline set for 4/1/2019. Release of Transcript Restriction set for 5/30/2019.(pk) (Entered: 03/01/2019)
120 REPLY to opposition to motion re 109 Amended MOTION for Protective Order Concerning ESI Custodians filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit STR 2-22-19, # 2 Certificate of Service)(Davila, Yamileth) (Entered: 03/04/2019)
CORRECTED NOTICE of Hearing: Telephone Conference set for 3/8/2019 at 02:30 PM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 03/06/2019)
121 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on March 1, 2019; Page Numbers: 1-12. Date of Issuance:March 6, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/27/2019. Redacted Transcript Deadline set for 4/6/2019. Release of Transcript Restriction set for 6/4/2019.(pk) (Entered: 03/06/2019)

03/08/2019 03/08/2019 03/08/2019 03/11/2019 03/11/2019
03/11/2019

122 STATUS REPORT on discovery compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 03/08/2019)
MINUTE ORDER: For the reasons stated on the record at the March 8, 2019 telephone hearing, it is hereby ORDERED that, absent the issuance of an applicable Protective Order, Defendants shall continue making weekly productions of ESI from the second group of 17 custodians at a rate of no less than 5,000 documents per week until all responsive documents have been produced. It is FURTHER ORDERED that discovery will close in this case on May 24, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on March 8, 2019. (lcrc2) (Entered: 03/08/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 3/8/2019. (Court Reporter: Bryan Wayne.) (tj) (Entered: 03/11/2019)
Set/Reset Deadlines: Discovery due by 5/24/2019. (tj) (Entered: 03/11/2019)
123 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on March 8, 2019; Page Numbers: 1-13. Date of Issuance:March 11, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 4/1/2019. Redacted Transcript Deadline set for 4/11/2019. Release of Transcript Restriction set for 6/9/2019.(pk) (Entered: 03/11/2019)
124 RESPONSE TO ORDER OF THE COURT re Order,, submission regarding Plaintiffs' request to disclose documents designated For Attorneys Eyes Only to an unnamed consultant filed by DEPARTMENT

03/11/2019 03/11/2019 03/12/2019
03/12/2019 03/12/2019 03/14/2019 03/14/2019
03/15/2019 03/22/2019

OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 03/11/2019)
125 SEALED MOTION filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Sealed Ex. A)(Goettel, Katherine) (Entered: 03/11/2019)
126 RESPONSE TO ORDER OF THE COURT re Order,, Concerning Sharing "Attorneys' Eyes Only" Documents With Plaintiffs' Expert filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Ex. A)(Goettel, Katherine) (Entered: 03/11/2019)
127 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parascandola, Christina) (Entered: 03/12/2019)
128 NOTICE of Change of Address by Tia T. Trout Perez (Trout Perez, Tia) (Entered: 03/12/2019)
129 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Slade, Michael) (Entered: 03/12/2019)
130 ORDER permitting the sharing of "attorney's eyes only" documents with Plaintiffs' expert: See document for details. SO ORDERED. Signed by Judge Rudolph Contreras on March 14, 2019. (lcrc2) (Entered: 03/14/2019)
MINUTE ORDER: It is hereby ORDERED that no telephone hearing will be held on March 15, 2019. If the parties wish to hold a telephone hearing on March 22, they shall file a notice with the Court, along with a proposed agenda for the call, by March 20. SO ORDERED. Signed by Judge Rudolph Contreras on March 14, 2019. (lcrc2) (Entered: 03/14/2019)
131 STATUS REPORT on discovery compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 03/15/2019)
132 STATUS REPORT on Discovery Compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M.

03/25/2019
03/26/2019 03/26/2019 03/26/2019 03/26/2019 03/26/2019 03/29/2019

NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Hirst, Kevin) (Entered: 03/22/2019)
MINUTE ORDER: It is hereby ORDERED that, beginning on March 29, 2019, and continuing thereafter during the course of discovery, the parties' shall file a joint status report by the close of business on every Friday, in which (1) Defendants will explain their compliance with each aspect of the applicable discovery requirements for that week (this filing will supersede Defendants' requirement to file their own status report outlining their discovery compliance), and (2) the parties together will identify and briefly describe any unresolved discovery disputes that require the scheduling of a telephone hearing for the following week. Before identifying any such dispute, however, the parties must meet and confer in good faith in an attempt to resolve the dispute informally. If a joint status report identifies no outstanding disputes, the Court will not schedule a hearing for the following week. Thus, absent such notification by the parties, the Friday afternoon status hearings will no longer routinely take place. SO ORDERED. Signed by Judge Rudolph Contreras on March 25, 2019. (lcrc2) (Entered: 03/25/2019)
133 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. Attorney Paul F. Brinkman terminated. (Brinkman, Paul) (Entered: 03/26/2019)
134 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. Attorney Devin Allan DeBacker terminated. (DeBacker, Devin) (Entered: 03/26/2019)
135 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. Attorney Jamie R. Netznik terminated. (Netznik, Jamie) (Entered: 03/26/2019)
136 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. Attorney Kevin Ross Powell terminated. (Powell, Kevin) (Entered: 03/26/2019)
137 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. Attorney Anne K. Reser terminated. (Reser, Anne) (Entered: 03/26/2019)
138 Joint STATUS REPORT on discovery compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M.

04/01/2019
04/01/2019 04/05/2019 04/05/2019 04/05/2019 04/05/2019 04/10/2019

NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 03/29/2019)
139 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit)(Hirst, Kevin) (Entered: 04/01/2019)
140 MOTION Class Decertification by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Text of Proposed Order)(Hirst, Kevin) (Entered: 04/01/2019)
141 ENTERED IN ERROR. . . . MOTION to Withdraw Class Representative as Named Plaintiff and Dismiss her Claims Without Prejudice by ANA P. (Attachments: # 1 Text of Proposed Order)(Patton, Stephen) Modified on 4/5/2019 (ztd). (Entered: 04/05/2019)
NOTICE OF CORRECTED DOCKET ENTRY: re 141 MOTION to Withdraw Class Representative as Named Plaintiff and Dismiss her Claims Without Prejudice was entered in error per counsel. (ztd) (Entered: 04/05/2019)
142 Joint STATUS REPORT on discovery compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 04/05/2019)
143 STIPULATION of Dismissal of Plaintiff Ana P. by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Patton, Stephen) (Entered: 04/05/2019)
144 NOTICE of Appearance by Patrick T. Haney on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Haney, Patrick) (Entered: 04/10/2019)

04/10/2019 04/10/2019 04/12/2019 04/12/2019 04/15/2019
04/15/2019 04/15/2019
04/17/2019

145 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Reynolds, Erin) (Entered: 04/10/2019)
146 NOTICE OF PARTIAL COMPLIANCE DUE TO NETWORK ISSUES by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Hirst, Kevin) (Entered: 04/10/2019)
147 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Appendix Declaration)(Kisor, Colin) (Entered: 04/12/2019)
148 MOTION re 140 MOTION Class Decertification by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen). Added MOTION for Extension of Time on 4/15/2019 (tth). (Entered: 04/12/2019)
149 RESPONSE re 148 MOTION re 140 MOTION Class Decertification MOTION for Extension of Time to filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 04/15/2019)
150 MOTION to Compel by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Memorandum in Support, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit Q, # 5 Text of Proposed Order)(Patton, Stephen) (Entered: 04/15/2019)
151 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit C, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N, # 14 Exhibit O, # 15 Exhibit P, # 16 Exhibit R)(Patton, Stephen) (Entered: 04/15/2019)
152 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Alsterberg, Cara) (Entered: 04/17/2019)

04/17/2019
04/18/2019 04/18/2019
04/19/2019 04/22/2019 04/22/2019 04/22/2019 04/25/2019

153 CERTIFICATE OF SERVICE by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO re 151 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) Amended Certificate of Service. (Patton, Stephen) (Entered: 04/17/2019)
154 REPLY to opposition to motion re 148 MOTION re 140 MOTION Class Decertification MOTION for Extension of Time to filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 04/18/2019)
MINUTE ORDER denying 148 Motion for Summary Denial but granting 148 Motion for Extension of Time: It is hereby ORDERED that Plaintiffs' motion for summary denial of Defendants' motion to decertify is DENIED, but that Plaintiffs' motion for extension of time is GRANTED. Plaintiffs may have until May 15, 2019 to respond to the motion to decertify. SO ORDERED. Signed by Judge Rudolph Contreras on April 18, 2019. (lcrc2) (Entered: 04/18/2019)
155 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 04/19/2019)
156 ORDER denying 109 Motion for Protective Order: See document for details. Signed by Judge Rudolph Contreras on April 22, 2019. (lcrc2) (Entered: 04/22/2019)
157 MEMORANDUM OPINION denying 109 Motion for Protective Order: See document for details. Signed by Judge Rudolph Contreras on April 22, 2019. (lcrc2) (Entered: 04/22/2019)
MINUTE ORDER: Upon consideration of 155 the parties' Joint Status Report, it is hereby ORDERED that the parties shall include a proposal (or proposals) for completing expert discovery in the joint status report to be filed this Friday. SO ORDERED. Signed by Judge Rudolph Contreras on April 22, 2019. (lcrc2) (Entered: 04/22/2019)
158 Unopposed MOTION for Protective Order to cover HHS/ORR documents by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 04/25/2019)

04/25/2019 04/26/2019 04/26/2019 04/30/2019 04/30/2019 04/30/2019 05/01/2019
05/01/2019
05/01/2019

159 ORDER granting 158 Unopposed Motion for Protective Order concerning HHS/ORR documents: See document for details. Signed by Judge Rudolph Contreras on April 25, 2019. (lcrc2) (Entered: 04/25/2019)
160 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 04/26/2019)
MINUTE ORDER: It is hereby ORDERED that a telephone hearing is scheduled for May 2, 2019 at 4:00 pm. Once all the parties are on one line, they will jointly call chambers at (202) 354-3520. SO ORDERED. Signed by Judge Rudolph Contreras on April 26, 2019. (lcrc2) (Entered: 04/26/2019)
Set/Reset Hearings: Telephone Conference set for 5/2/2019 at 04:00 PM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 04/30/2019)
161 NOTICE of Appearance by Rebecca Wall Forrestal on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Forrestal, Rebecca) (Entered: 04/30/2019)
162 NOTICE of Pro Bono Representation Pursuant to LR83.2(g) by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (O'Callaghan, Orla) (Entered: 04/30/2019)
163 Memorandum in opposition to re 152 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit 1)(Patton, Stephen) (Entered: 05/01/2019)
164 Memorandum in opposition to re 150 MOTION to Compel filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit F, Electronic mail message between C. Kisor to K. Goettel (Apr. 25, 2019), # 2 Exhibit G, Electronic mail message between C. Alsterberg and K. Goettel (Apr. 29, 2019), # 3 Text of Proposed Order J, Proposed Order)(Alsterberg, Cara) (Entered: 05/01/2019)
165 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY,

05/02/2019
05/02/2019 05/02/2019 05/06/2019 05/08/2019

THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, Defendants Response to Plaintiffs Third Set of Requests for Production of Documents, # 2 Exhibit B, Defendants Response to Plaintiffs Second Set of Interrogatories, # 3 Exhibit C, Defendants' Response to Plaintiffs' First Set of Requests for the Production of Documents, # 4 Exhibit D, Transcript of Harper Deposition (Dec. 8, 2018), # 5 Exhibit E, ICE Bates Ranges, # 6 Exhibit H, Harper Declaration (May 1, 2019), # 7 Exhibit I, Barnes Transcript of Barnes Deposition (Feb. 28, 2019))(Alsterberg, Cara) (Entered: 05/01/2019)
MINUTE ORDER: For the reasons stated on the record at the May 2, 2019 telephone hearing, the following schedule will govern proceedings in this case: First, by May 10, 2019, Plaintiffs must serve expert predisclosure outlines that contain sufficient information of the substance and/or subject matter of each expert's testimony to allow Defendants to begin the process of securing their own experts if they deem them necessary. Second, Plaintiffs' expert reports must be served by May 31, 2019, Defendants' rebuttal expert reports must be served by July 31, 2019, and all discovery related to experts must conclude by August 30, 2019. Third, any dispositive motions must be filed by September 13, 2019, with responses due October 4, 2019 and replies due October 18, 2019. Finally, a bench trial is scheduled to commence on December 2, 2019 at 10am, and is estimated to take two to three weeks. (SO ORDERED by Judge Rudolph Contreras on May 2, 2019) (lcrc2) (Entered: 05/02/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 5/2/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 05/03/2019)
Set/Reset Deadlines and Hearings: Rebuttal expert reports due by 7/31/2019. Motions due by 9/13/2018; Responses due by 10/4/2019; Replies due by 10/18/2019; Bench trial scheduled for 12/21/19 (tj) (Entered: 05/03/2019)
166 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Hirst, Kevin) (Entered: 05/06/2019)
167 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized

05/08/2019 05/08/2019
05/10/2019 05/10/2019 05/10/2019

persons.) (Attachments: # 1 Exhibit)(Patton, Stephen) (Entered: 05/08/2019)
168 REPLY to opposition to motion re 150 MOTION to Compel filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 05/08/2019)
169 REPLY to opposition to motion re 152 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Entered: 05/08/2019)
170 NOTICE of Filing Plaintiffs' Expert Pre-Disclosure by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 05/10/2019)
171 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Hirst, Kevin) (Entered: 05/10/2019)
172 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on May 2, 2019; Page Numbers: 1-22. Date of Issuance:May 10, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Tape Number: Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 5/31/2019. Redacted Transcript Deadline set for 6/10/2019. Release of Transcript Restriction set for 8/8/2019.(pk) (Entered: 05/10/2019)

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05/16/2019 05/16/2019 05/16/2019 05/17/2019 05/17/2019

173 Memorandum in opposition to re 140 MOTION Class Decertification filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 05/15/2019)
174 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support of Plaintiffs' Opposition to Defendants' Motion to De-Certify the Class, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39)(Patton, Stephen) (Entered: 05/15/2019)
175 Unopposed MOTION for Extension of Time to File Response/Reply as to 140 MOTION Class Decertification REPLY BRIEF by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 05/16/2019)
176 NOTICE of Appearance- Pro Bono by Paul L. Quincy on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Quincy, Paul) (Entered: 05/16/2019)
MINUTE ORDER granting 175 Unopposed Motion for Extension of Time to File Response/Reply: It is hereby ORDERED that the motion is GRANTED. Defendants' reply in support of their motion to decertify the class is now due on June 5, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on May 16, 2019. (lcrc2) (Entered: 05/16/2019)
177 Joint STATUS REPORT on discovery by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 05/17/2019)
MINUTE ORDER: Upon consideration of 177 the parties' Joint Status Report, it is hereby ORDERED that the parties may have until May 31, 2019 to submit their proposal(s) regarding data cut off and supplementation under Rule 26. SO ORDERED. Signed by Judge Rudolph Contreras on May 17, 2019. (lcrc2, ) (Entered: 05/17/2019)

05/21/2019 05/21/2019 05/24/2019 05/31/2019 05/31/2019
06/03/2019 06/04/2019 06/05/2019
06/07/2019 06/14/2019 06/14/2019

Set/Reset Deadlines: proposals due by 5/31/2019. (tj) (Entered: 05/21/2019)
Set/Reset Deadlines: Reply due by 6/5/2019. (tj) (Entered: 05/21/2019)
178 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 05/24/2019)
179 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 05/31/2019)
MINUTE ORDER: Upon consideration of 179 the parties' Joint Status Report, it is hereby ORDERED that the parties may have until June 7, 2019 to submit their proposal(s) regarding data cut off and supplementation under Rule 26. Signed by Judge Rudolph Contreras on May 31, 2019. (lcrc2) (Entered: 05/31/2019)
Set/Reset Deadlines: Supplemental Memoranda due by 6/7/2019. (hs) (Entered: 06/03/2019)
180 ORDER granting in part 150 Motion to Compel, and granting 151 , 165 , and 167 Sealed Motions for Leave to File Documents Under Seal: See document for details. Signed by Judge Rudolph Contreras on June 4, 2019. (lcrc2) (Entered: 06/04/2019)
181 REPLY to opposition to motion re 140 MOTION Class Decertification filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 06/05/2019)
182 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 06/07/2019)
183 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 06/14/2019)
184 MOTION for Leave to File Plaintiffs' Sur-Reply in Opposition to Defendants' Motion to De-Certify the Class by WILMER GARCIA

06/14/2019 06/17/2019
06/17/2019 06/19/2019
06/21/2019 06/21/2019 06/21/2019 06/28/2019

RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Exhibit)(Patton, Stephen) (Entered: 06/14/2019)
185 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A)(Patton, Stephen) (Entered: 06/14/2019)
MINUTE ORDER: Upon consideration of 183 the parties' Joint Status Report, the following is hereby ORDERED: By June 21, 2019, Plaintiffs shall file a written motion regarding the discovery dispute identified in the Joint Status Report. Defendants shall respond to this motion by June 28, 2019. A telephone hearing on Plaintiffs' motion is then scheduled for July 9, 2019 at 3:00 pm. As always, once all the parties are on one line, they should jointly call chambers at (202) 354-3520. SO ORDERED. Signed by Judge Rudolph Contreras on June 17, 2019. (lcrc2) (Entered: 06/17/2019)
Set/Reset Hearings:(Telephone Conference set for 7/9/2019 at 03:00 PM in Chambers before Judge Rudolph Contreras.) ( Motions due by 6/21/2019; Responses due by 6/28/2019) (tj) (Entered: 06/17/2019)
186 RESPONSE re 184 MOTION for Leave to File Plaintiffs' Sur-Reply in Opposition to Defendants' Motion to De-Certify the Class filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Attachment A, Emails between Colin Kisor to Kate Goettel and Stephen Patton (June 17, 2019))(Alsterberg, Cara) (Entered: 06/19/2019)
187 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN. (Kisor, Colin) (Entered: 06/21/2019)
MINUTE ORDER: Upon consideration of 187 the parties' Joint Status Report, it is hereby ORDERED that the parties are excused from filing a joint status report on July 5, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on June 21, 2019. (lcrc2) (Entered: 06/21/2019)
188 MOTION to Compel by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 06/21/2019)
Set/Reset Deadlines: Status Report due by 7/5/2019 (tj) (Entered: 06/28/2019)

06/28/2019 06/28/2019 06/28/2019
07/08/2019 07/09/2019

189 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 06/28/2019)
190 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Exhibit M, # 2 Exhibit Exhibit N, # 3 Exhibit Exhibit O, # 4 Exhibit Exhibit P)(Hirst, Kevin) (Entered: 06/28/2019)
191 RESPONSE re 188 MOTION to Compel filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Text of Proposed Order)(Hirst, Kevin) (Entered: 06/28/2019)
192 MOTION to Hold in Abeyance re 140 MOTION Class Decertification by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 07/08/2019)
MINUTE ORDER granting 188 Plaintiffs' Motion to Compel and denying without prejudice 140 Defendants' Motion for Class Decertification: For the reasons stated on the record at the July 9, 2019 telephone hearing, it is hereby ORDERED that 188 Plaintiffs' Motion to Compel is GRANTED. If, however, Defendants uncover evidence of burdensomeness or duplication as they perform their supplemental productions, they may produce such evidence and request appropriate relief in a weekly status report. In the meantime, the parties shall meet, confer, and provide a proposed schedule (or competing proposals) for supplemental ESI production in their status report due this Friday, July 12, 2019. It is FURTHER ORDERED that 140 Defendants' Motion for Class Decertification is DENIED WITHOUT PREJUDICE. The motion may be refiled on the same schedule that governs dispositive motions, provided in the Court's May 2, 2019 Minute Order. SO ORDERED. Signed by Judge Rudolph Contreras on July 9, 2019. (lcrc2) (Entered: 07/09/2019)

07/09/2019 07/12/2019
07/12/2019 07/19/2019 07/26/2019 07/31/2019

Minute Entry for proceedings held before Judge Rudolph Contreras: Telephone Conference held on 7/9/2019. Status Report due by 7/12/2019. (Court Reporter: Patricia Kaneshiro Miller.) (tj) (Entered: 07/09/2019)
193 TRANSCRIPT OF PROCEEDINGS before Judge Rudolph Contreras held on July 9, 2019; Page Numbers: 1-15. Date of Issuance:July 12, 2019. Court Reporter/Transcriber Patricia A Kaneshiro-Miller, Telephone number 202-354-3243, Patricia_KaneshiroMiller@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/2/2019. Redacted Transcript Deadline set for 8/12/2019. Release of Transcript Restriction set for 10/10/2019.(pk) (Entered: 07/12/2019)
194 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Appendix A)(Hirst, Kevin) (Entered: 07/12/2019)
195 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 07/19/2019)
196 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 07/26/2019)
MINUTE ORDER: Upon consideration of the parties' respective positions as stated in 194 their joint status report, the following is hereby ORDERED: With respect to field office custodians who have left their positions since October 28, 2018, ICE shall produce responsive ESI for their successors starting on the date they assumed their new position.

08/02/2019 08/05/2019
08/09/2019

This includes the successors for one Phoenix Field Office Juvenile Coordinator, who left her position on or about January 12, 2019, and two Chicago Field Office Juvenile Coordinators, who left their positions on or about March 1, 2019. Defendants' argument that these productions will be duplicative and disproportionate to the needs of the case is unpersuasive because Defendants' de-dupe technology should reduce any burden of the productions significantly. SO ORDERED. Signed by Judge Rudolph Contreras on July 31, 2019. (lcrc2) (Entered: 07/31/2019)
197 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 08/02/2019)
MINUTE ORDER: In their 197 Joint Status Report filed on August 2, 2019, the parties stated that they believed that 152 Defendants' Motion to Strike and Re-File remained unresolved. But upon review of the docket, the Court granted that motion by sealed minute order on April 17, 2019, before Plaintiffs' filed their 163 Opposition on May 1, 2019. Having reviewed Plaintiffs' Opposition, the Court generally agrees that the blank Age-Out Review Worksheets "do not reveal an otherwise unknown law enforcement process or technique," ECF No. 163 at 5, and the Court itself has previously remarked that the blank Worksheets do not contain "highly sensitive information," ECF No. 130 at 3. The Court need not reconsider its disposition of 152 Defendants' Motion to Strike and ReFile, however, because the specific dispute is moot: the motion was related to 109 Defendants' Amended Motion for Protective Order, which the Court denied on April 22, 2019, see ECF No. 156 . And even if the Court had made a concrete determination that the blank Worksheets were protected by law enforcement sensitivity, such a determination would have limited relevance to whether deposition testimony that merely discussed the Worksheets would be protected. Accordingly, the parties are advised to treat disagreements over deposition testimony as they would any other discovery dispute: They are obligated to meet and confer in good faith to attempt to resolve or narrow the dispute informally. If the parties are unable to reach agreement on particular transcript sections, they should inform the Court in an appropriate weekly status report. SO ORDERED. Signed by Judge Rudolph Contreras on August 5, 2019. (lcrc2) (Entered: 08/05/2019)
198 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 08/09/2019)

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08/13/2019 08/14/2019 08/14/2019 08/16/2019 08/23/2019 08/30/2019 09/03/2019

199 NOTICE of Appearance by William Herrick Weiland on behalf of All Defendants (Weiland, William) (Entered: 08/12/2019)
MINUTE ORDER: Upon consideration of 198 the parties' Joint Status Report, it is hereby ORDERED that a telephone hearing is scheduled for August 15, 2019 at 2:30 pm. As always, once all the parties are on one line, they should jointly call chambers at (202) 354-3520. SO ORDERED. Signed by Judge Rudolph Contreras on August 12, 2019. (lcrc2) (Entered: 08/12/2019)
Set/Reset Hearings: Telephone Conference set for 8/15/2019 at 02:30 PM in Chambers before Judge Rudolph Contreras. (tj) (Entered: 08/13/2019)
200 NOTICE by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 08/14/2019)
MINUTE ORDER: In light of 200 Plaintiffs' Notice, it is hereby ORDERED that the telephone hearing scheduled for August 15, 2019 is VACATED. SO ORDERED. Signed by Judge Rudolph Contreras on August 14, 2019. (lcrc2) (Entered: 08/14/2019)
201 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 08/16/2019)
202 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 08/23/2019)
203 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit, # 2 Exhibit)(Kisor, Colin) (Entered: 08/30/2019)
204 NOTICE regarding Data Discrepancy Resolution by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re 203 Status Report (Attachments: # 1 Declaration, # 2 Appendix, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration, # 8 Declaration, # 9 Declaration, # 10 Declaration, # 11 Declaration, # 12 Declaration, # 13 Declaration, # 14 Declaration, # 15 Declaration, # 16 Declaration, # 17 Declaration)(Kisor, Colin) (Entered: 09/03/2019)

09/06/2019
09/06/2019 09/06/2019 09/06/2019
09/13/2019

205 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Text of Proposed Order)(Parascandola, Christina) (Entered: 09/06/2019)
206 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 09/06/2019)
MINUTE ORDER granting 205 Defendants' Motion for Leave to File Exhibits Under Seal. It is hereby ORDERED that Defendants' motion is GRANTED. SO ORDERED. Signed by Judge Rudolph Contreras on 09/06/2019. (lcrc2) (Entered: 09/06/2019)
207 SEALED DOCUMENT (Exhibit 1) filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. re 204 Notice (Other), filed by KIRSTJEN M. NIELSEN, DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14) (ztth) (Entered: 09/09/2019)
208 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support Defendants' Partial Motion for Summary Judgment, # 3 Statement of Facts, # 4 Exhibit 1, 2019 Field Office Juvenile Coordinator Training Agenda, ICE-0041329332, # 5 Exhibit 2, Current Litigation Overview, ICE-0041386-407, # 6 Exhibit 3, Current Litigation: Garcia Ramirez v. ICE/Age-Outs, ICE0041420-456, # 7 Exhibit 4, Documentation Activity: Breakout Session ICE-0041475-502, # 8 Exhibit 5, Excerpts from the Transcript of the Deposition of Officer Joe Love (October 22, 2018), # 9 Exhibit 6, Excerpts from the Transcript of the Deposition of Officer Rebecca Jones

09/13/2019

(November 20, 2018), # 10 Exhibit 7, Excerpts from the Transcript of the Deposition of Officer Lika Black, (November 28, 2018), # 11 Exhibit 8, Excerpts from the Transcript of the Deposition of Officer Geoffrey Pepple (December 19, 2018), # 12 Exhibit 9, Excerpts from the Transcript of the Deposition of Officer Linda Hyde (January 23, 2019), # 13 Exhibit 10, Excerpts from the Transcript of the Deposition of Officer Sean Reardon (January 31, 2019), # 14 Exhibit 11, Excerpts from the Transcript of the Deposition of Officer Victor Galvez (February 13, 2019), # 15 Exhibit 12, Excerpts from the Transcript of the Deposition of Officer Nancy Z. Sullivan (February 20, 2019), # 16 Exhibit 13, Excerpts from the Transcript of the Deposition of Officer Edwin Barnes (February 28, 2019), # 17 Exhibit 14, Excerpts from the Transcript of the Deposition of Officer Stephen Venegas (March 21, 2019), # 18 Exhibit 15, Excerpts from the Transcript of the Deposition of Officer Jose Munguia (March 28, 2019), # 19 Exhibit 16, Excerpts from the Transcript of the Rule 30(b)(6) Deposition of Erik Carbonneau (November 21, 2018), # 20 Exhibit 17, Excerpts from the Transcript of the Rule 30(b)(6) Deposition of Timothy Gibney (November 21, 2018), # 21 Exhibit 19, Excerpts from the Transcript of the Rule 30(b)(6) Deposition of Mellissa Harper (December 6, 2018), # 22 Exhibit 20, Excerpts from the Transcript of the Deposition of Ana B. SanchezZimak (May 3, 2019), # 23 Exhibit 22, Excerpts from the Transcript of the Deposition of Eric Ravenell (May 10, 2019))(Alsterberg, Cara) (Entered: 09/13/2019)
209 MOTION for Partial Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Exhibit List, # 4 Exhibit 1, 2019 Field Office Juvenile Coordinator Training Agenda, ICE-0041329-332, # 5 Exhibit 2, Current Litigation Overview, ICE-0041386-407, # 6 Exhibit 3, Current Litigation: Garcia Ramirez v. ICE/Age-Outs, ICE-0041420-456, # 7 Exhibit 4, Documentation Activity: Breakout Session ICE-0041475-502, # 8 Exhibit 5, Excerpts from the Transcript of the Deposition of Officer Joe Love (October 22, 2018), # 9 Exhibit 6, Excerpts from the Transcript of the Deposition of Officer Rebecca Jones (November 20, 2018), # 10 Exhibit 7, Excerpts from the Transcript of the Deposition of Officer Lika Black, (November 28, 2018), # 11 Exhibit 8, Excerpts from the Transcript of the Deposition of Officer Geoffrey Pepple (December 19, 2018), # 12 Exhibit 9, Excerpts from the Transcript of the Deposition of Officer Linda Hyde (January 23, 2019), # 13 Exhibit 10, Excerpts from the Transcript of the Deposition of Officer Sean Reardon (January 31, 2019), # 14 Exhibit 11, Excerpts from the Transcript of the Deposition of Officer Victor Galvez (February 13, 2019), # 15 Exhibit 12, Excerpts from the Transcript of the Deposition of Officer Nancy Z. Sullivan

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09/24/2019 09/24/2019 09/24/2019

(February 20, 2019), # 16 Exhibit 13, Excerpts from the Transcript of the Deposition of Officer Edwin Barnes (February 28, 2019), # 17 Exhibit 14, Excerpts from the Transcript of the Deposition of Officer Stephen Venegas (March 21, 2019), # 18 Exhibit 15, Excerpts from the Transcript of the Deposition of Officer Jose Munguia (March 28, 2019), # 19 Exhibit 16, Excerpts from the Transcript of the Rule 30(b)(6) Deposition of Erik Carbonneau (November 21, 2018), # 20 Exhibit 17, Excerpts from the Transcript of the Rule 30(b)(6) Deposition of Timothy Gibney (November 21, 2018), # 21 Exhibit 18, Excerpts from the Transcript of the Deposition of Mellissa Harper (May 2, 2019), # 22 Exhibit 19, Excerpts from the Transcript of the Rule 30(b)(6) Deposition of Mellissa Harper (December 6, 2018), # 23 Exhibit 20, Excerpts from the Transcript of the Deposition of Ana B. SanchezZimak (May 3, 2019), # 24 Exhibit 21, Excerpts from the Transcript of the Deposition of Stephen Antkowiak (May 8, 2019), # 25 Exhibit 22, Excerpts from the Transcript of the Deposition of Eric Ravenell (May 10, 2019), # 26 Exhibit 23, Plaintiffs Responses to Defendants First Set of Requests for Admissions (February 26, 2019))(Alsterberg, Cara) (Entered: 09/13/2019)
210 Joint STATUS REPORT by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Goettel, Katherine) (Entered: 09/13/2019)
MINUTE ORDER: Upon consideration of 210 the parties' Joint Status Report, it is hereby ORDERED that no further weekly status reports are necessary. As always, if a dispute arises requiring intervention by the Court, the parties are to promptly and jointly call chambers to schedule a telephone conference. SO ORDERED. Signed by Judge Rudolph Contreras on 09/16/2019. (lcrc2) (Entered: 09/16/2019)
211 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Patton, Stephen) (Entered: 09/24/2019)
212 MOTION in Limine to Exclude Certain of the Opinions of Defendants' Experts Qing Pan and Joseph Gastwirth by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Patton, Stephen) (Entered: 09/24/2019)
213 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized

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10/04/2019 10/07/2019

persons.) (Attachments: # 1 Memorandum in Support, # 2 Exhibit 2, # 3 Exhibit 6, # 4 Exhibit 7)(Patton, Stephen) (Entered: 09/24/2019)
214 MOTION in Limine to Exclude the Testimony of Defendants' Expert Gary Mead by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Patton, Stephen) (Entered: 09/24/2019)
215 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1)(Patton, Stephen) (Entered: 09/25/2019)
216 Unopposed MOTION for Extension of Time to Respond to Defendants' Motion to File Exhibits Under Seal by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 09/27/2019)
MINUTE ORDER granting 216 Plaintiffs' Unopposed Motion for Extension of Time: It is hereby ORDERED that Plaintiffs shall file their opposition to 208 Defendants' Sealed Motion for Leave to File Exhibits Under Seal on or before October 4, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 09/27/2019. (lcrc2) (Entered: 09/27/2019)
217 Unopposed MOTION for Extension of Time to File Response/Reply as to 214 MOTION in Limine to Exclude the Testimony of Defendants' Expert Gary Mead, 212 MOTION in Limine to Exclude Certain of the Opinions of Defendants' Experts Qing Pan and Joseph Gastwirth by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Proposed Order)(Weiland, William) (Entered: 10/04/2019)
218 Unopposed MOTION for Extension of Time to File Response/Reply by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 10/04/2019)
219 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19,

10/07/2019 10/07/2019 10/07/2019 10/07/2019
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# 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 45, # 45 Exhibit 46, # 46 Exhibit 49, # 47 Exhibit 51, # 48 Exhibit 52, # 49 Exhibit 53, # 50 Exhibit 54, # 51 Exhibit 55)(Patton, Stephen) (Entered: 10/07/2019)
220 RESPONSE re 209 MOTION for Partial Summary Judgment filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit 43, # 2 Exhibit 44, # 3 Exhibit 47, # 4 Exhibit 48, # 5 Exhibit 50)(Patton, Stephen) (Entered: 10/07/2019)
221 MOTION for Leave to File Excess Pages by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 10/07/2019)
222 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit A, # 3 Exhibit B)(Patton, Stephen) (Entered: 10/07/2019)
MINUTE ORDER granting 217 Defendants' Unopposed Motion for Extension of Time to Respond to Plaintiffs' Motions in Limine; 218 Plaintiffs' Unopposed Motion for Extension of Time to Respond to Defendants' Motion for Partial Summary Judgment; and 221 Plaintiffs' Motion to Enlarge Page Limits: It is hereby ordered that Defendants shall file oppositions to 212 and 214 Plaintiffs' Motions in Limine on or before October 22, 2019; and that Plaintiffs shall file their Statement of Material Facts and Opposition to Defendants' Statement of Material Facts on or before October 8, 2019. It is FURTHER ORDERED that, over Defendants' unarticulated opposition, Plaintiffs' forthcoming Opposition to Defendants' Motion for Partial Summary Judgment may be up to sixty pages in length. SO ORDERED. Signed by Judge Rudolph Contreras on 10/7/2019. (lcrc2) (Entered: 10/07/2019)
223 REDACTED DOCUMENT- Exhibits to 220 Response to motion, by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit 3, # 2 Exhibit 4, # 3 Exhibit 5, # 4 Exhibit 6, # 5 Exhibit 7, # 6 Exhibit 8, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 15, # 10 Exhibit 18, # 11 Exhibit 19, # 12 Exhibit 20, # 13 Exhibit 24, # 14 Exhibit 53, # 15 Exhibit 55)(Patton, Stephen) (Entered: 10/08/2019)

10/08/2019
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224 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Patton, Stephen) Modified on 10/9/2019 to correct filed date (zjf). (Entered: 10/09/2019)
225 REDACTED DOCUMENT- Statement of Facts & Responses to Defendants' Statement of Facts by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 9, # 6 Exhibit 11, # 7 Exhibit 12)(Patton, Stephen) (Entered: 10/10/2019)
226 Unopposed MOTION for Extension of Time to File msj reply (conditionally unopposed) by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 10/10/2019)
MINUTE ORDER granting 226 Defendants' Motion for Extension of Time: It is hereby ORDERED that the Defendants shall have up to and including November 1, 2019 to file a reply brief in support of 209 Defendants' Motion for Partial Summary Judgment. SO ORDERED. Signed by Judge Rudolph Contreras on 10/10/2019. (lcrc2) (Entered: 10/10/2019)
227 Unopposed MOTION for Extension of Time to File Response/Reply as to 222 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 10/11/2019)
228 RESPONSE to 226 Defendants' Request for a Final Pretrial Conference by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Goettel, Katherine); Modified event and text on 10/17/2019 (ztth). (Entered: 10/16/2019)
MINUTE ORDER granting 227 Defendants' Unopposed Motion for Extension of Time: It is hereby ORDERED that Defendants shall have up to and including October 16, 2019, to file a reply brief in support of

10/16/2019
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their 208 Motion for Leave to File Exhibits Under Seal. SO ORDERED. Signed by Judge Rudolph Contreras on 10/16/2019. (lcrc2) (Entered: 10/16/2019)
229 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Reply, # 2 Exhibit A, # 3 Text of Proposed Order)(Alsterberg, Cara) (Entered: 10/16/2019)
230 PRETRIAL ORDER. See document for details. Signed by Judge Rudolph Contreras on 10/17/2019. (lcrc2) (Entered: 10/17/2019)
231 MOTION in Limine by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Exhibit Plaintiffs' Response to Defendants' Requests for Admission, # 2 Exhibit Expert Report of Dr. Julie Linton, # 3 Text of Proposed Order)(Hirst, Kevin) (Entered: 10/18/2019)
Set/Reset Deadlines: Pretrial Statement due by 11/8/2019; Motion in Limine due by 11/11/2019; Responses due by 11/18/2019; Demonstrative Exhibit due by 11/20/2019; Pretrial Conference set for 11/25/2019 at 2:00 PM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 10/18/2019)
232 RESPONSE re 214 MOTION in Limine to Exclude the Testimony of Defendants' Expert Gary Mead filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Text of Proposed Order)(Alsterberg, Cara) (Entered: 10/22/2019)
233 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Weiland, William) (Entered: 10/22/2019)
234 RESPONSE re 212 MOTION in Limine to Exclude Certain of the Opinions of Defendants' Experts Qing Pan and Joseph Gastwirth, 211 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ,

10/25/2019 10/28/2019 10/29/2019 10/29/2019 10/30/2019 11/07/2019 11/07/2019 11/08/2019

SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit A - filed under seal, # 2 Exhibit B - filed under seal, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Weiland, William) (Entered: 10/22/2019)
235 RESPONSE re 231 MOTION in Limine to Exclude the Report and Testimony of Plaintiffs' Expert in Pediatrics filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit A)(Patton, Stephen) (Entered: 10/25/2019)
236 REPLY to opposition to motion re 209 MOTION for Partial Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Kisor, Colin) (Entered: 10/28/2019)
237 REPLY to opposition to motion re 214 MOTION in Limine to Exclude the Testimony of Defendants' Expert Gary Mead filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 10/29/2019)
238 REPLY to opposition to motion re 212 MOTION in Limine to Exclude Certain of the Opinions of Defendants' Experts Qing Pan and Joseph Gastwirth filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 10/29/2019)
239 REPLY to opposition to motion re 231 MOTION in Limine filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Hirst, Kevin) (Entered: 10/30/2019)
240 ORDER denying 209 Motion for Partial Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 11/7/2019. (lcrc2) (Entered: 11/07/2019)
241 MOTION for Leave to File Sur-Reply in Opposition to Defendants' Motion to Exclude The Report and Testimony of Plaintiffs' Expert in Pediatrics by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Exhibit A)(Patton, Stephen) (Entered: 11/07/2019)
242 PRETRIAL STATEMENT by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Appendix A,

11/11/2019 11/11/2019 11/12/2019 11/12/2019
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# 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 Appendix E, # 6 Appendix F)(Patton, Stephen) (Entered: 11/08/2019)
243 MOTION in Limine to exclude depo testimony where the witnesses will testify in person by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 11/11/2019)
244 MOTION in Limine Regarding Defendants' Failure to Disclose Trial Witnesses by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Patton, Stephen) (Entered: 11/11/2019)
245 Amended MOTION for Leave to File Sur-Reply in Opposition to Defendants' Motion to Exclude The Report and Testimony of Plaintiffs' Expert in Pediatrics by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Patton, Stephen) (Entered: 11/12/2019)
MINUTE ORDER Granting 245 Plaintiffs' Amended Motion for Leave to File Surreply: It is hereby ORDERED that Plaintiffs' Motion for Leave to File a Surreply in Opposition to Defendants' Motion to Exclude the Report and Testimony of Plaintiffs' Expert in Pediatrics is GRANTED. It is FURTHER ORDERED that Plaintiffs' Surreply attached to Plaintiffs' Amended Motion is deemed filed as of November 12, 2016. SO ORDERED. Signed by Judge Rudolph Contreras on 11/12/2019. (lcrc2) (Entered: 11/12/2019)
246 MOTION in Limine to exclude the opinions of Plaintiffs' expert Justin Lenzo by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Parascandola, Christina) (Entered: 11/12/2019)
247 NOTICE of Submission of Defendants' Exhibit 42 with the Court Clerk by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Hirst, Kevin) (Entered: 11/13/2019)
248 RESPONSE re 243 MOTION in Limine to exclude depo testimony where the witnesses will testify in person filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, ANA P.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10,

11/14/2019 11/14/2019
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# 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Patton, Stephen) (Entered: 11/13/2019)
249 RESPONSE re 244 MOTION in Limine Regarding Defendants' Failure to Disclose Trial Witnesses filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Appendix)(Kisor, Colin) (Entered: 11/14/2019)
250 ORDER denying 212 Plaintiffs Motion to Exclude Certain of the Opinions of Defendants Experts Qing Pan and Joseph Gastwirth; granting 214 Plaintiffs Motion to Exclude the Testimony of Defendants Expert Gary Mead; and denying 231 Defendants Motion to Exclude the Report and Testimony of Plaintiffs Expert in Pediatrics. See document for details. Signed by Judge Rudolph Contreras on 11/14/2019. (lcrc2) (Entered: 11/14/2019)
251 MEMORANDUM OPINION denying 212 Plaintiffs Motion to Exclude Certain of the Opinions of Defendants Experts Qing Pan and Joseph Gastwirth; granting 214 Plaintiffs Motion to Exclude the Testimony of Defendants Expert Gary Mead; and denying 231 Defendants Motion to Exclude the Report and Testimony of Plaintiffs Expert in Pediatrics. See document for details. Signed by Judge Rudolph Contreras on 11/14/2019. (lcrc2) (Entered: 11/14/2019)
252 RESPONSE re 246 MOTION in Limine to exclude the opinions of Plaintiffs' expert Justin Lenzo filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit 1)(Patton, Stephen) (Entered: 11/18/2019)
253 ORDER denying 243 Motion in limine to Exclude Deposition Testimony. See document for details. Signed by Judge Rudolph Contreras on 11/20/2019. (lcrc2) (Entered: 11/20/2019)
255 Supplemental PRETRIAL STATEMENT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) Modified event title on 11/21/2019 (znmw). (Entered: 11/20/2019)
256 NOTICE of Appearance by Britney Ann Lewis on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Lewis, Britney) (Entered: 11/21/2019)
257 ORDER denying 246 Motion in limine to Exclude the Opinions of Plaintiffs' Expert Justin Lenzo. See document for details. Signed by Judge Rudolph Contreras on 11/21/2019. (lcrc2) (Entered: 11/21/2019)

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258 Supplemental PRETRIAL STATEMENT by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit Horton, # 2 Exhibit Lenzo, # 3 Exhibit Vinikoor, # 4 Exhibit Sandweg, # 5 Exhibit Linton)(Patton, Stephen) Modified event title on 11/26/2019 (znmw). (Entered: 11/22/2019)
259 Supplemental PRETRIAL STATEMENT by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit 5 - Demonstrative Exhibits for Dr. Qing Pan)(Weiland, William) Modified event title on 11/26/2019 (znmw). (Entered: 11/25/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Final Pretrial Conference held on 11/25/2019. Bench trial remains scheduled to commence on December 2, 2019. Order to follow. (Court Reporter: Elizabeth Saint Loth.) (tj) (Entered: 11/25/2019)
MINUTE ORDER: For the reasons stated on the record during the November 25, 2019 Pretrial Conference, the following is hereby ORDERED: 244 Plaintiffs' Motion in limine Regarding Defendants' Failure to Disclose Trial Witnesses is DENIED AS MOOT IN PART AND DENIED IN PART. As the parties have agreed, out-of-town witnesses shall be called only once and each side shall provide notice two business days in advance of which witnesses they will call on a given day. The motion is denied with regard to the request to bar Mr. Hormiga and Ms. Lower from testifying at trial. Mr. Hormiga and Ms. Lower may testify, but Defendants shall make them available for deposition before they are called; availability shall be made at Plaintiffs convenience, at least 48 hours before their trial testimony, and on a Saturday if necessary. Defendants' objection to a portion of Plaintiffs' Exhibit 333, raised in 255 Defendants' Supplemental Pretrial Statement has been withdrawn with leave to renew. It is FURTHER ORDERED that if Defendants' expert Dr. Gastwirth does not testify at trial, Defendants shall provide cross-designations of portions of the transcript of his deposition testimony and may not inappropriately designate the entire transcript. SO ORDERED. Signed by Judge Rudolph Contreras on 11/25/2019. (lcrc2) (Entered: 11/25/2019)
260 Supplemental PRETRIAL STATEMENT by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit Lenzo)(Patton, Stephen) Modified event title on 12/2/2019 (znmw). (Entered: 12/01/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial held on 12/2/2019. Evidence entered, and Bench Trial

12/02/2019 12/03/2019 12/03/2019 12/04/2019 12/05/2019
12/06/2019
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continued to 12/3/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witness: Melissa Harper. (Court Reporter Jeff Hook (AM) / Cathryn Jones (PM).) (tj) (Entered: 12/03/2019)
261 NOTICE of Appearance - Pro Bono by Barack Echols on behalf of WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (ztth) (Entered: 12/05/2019)
Set/Reset Hearings: Bench Trial set for 12/3/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 12/03/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/3/2019. Evidence entered, and Bench Trial continued to 12/4/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witness: Melissa Harper; Deposition of Eric Ravenelle. (Court Reporter Jeff Hook (AM) / Cathryn Jones (PM).) (tj) (Entered: 12/03/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/4/2019. Evidence entered, and Bench Trial continued to 12/5/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. (Court Reporter Jeff Hook (AM)/ Cathryn Jones (PM)) Witnesses: Anna Sanchez Simak; Sulma Hernandez Alfaro. (tj) (Entered: 12/04/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/5/2019. Evidence entered, and Bench Trial continued to12/6/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Sulma Hernandez Alfaro (continued); Wilmer Garcia Ramirez; Deposition of Jose Munguia; Anthony Enriquez; Deposition of Linda M. Hyde. (Court Reporter: Jeff Hook (AM) / Cathryn Jones (PM).) (tj) (Entered: 12/05/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/6/2019. Evidence entered, and Bench Trial continued to 12/9/2019 at 10:00 AM in Courtroom 5 - 2nd Floor before Judge Rudolph Contreras in the AM only. The court will return to courtroom 14 - 4th after completion of video testimony. Witnesses: Andrea Saenz; Deposition testimony: Linda Hyde; Edwin Barnes; Geoffrey Peeble; (Court Reporter Jeff Hook (AM)/ Cathryn Jones (PM).) (tj) (Entered: 12/06/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumes and held on 12/9/2019. Evidence entered and Bench Trial continued to 12/10/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Lucy Castineda; Diana

12/10/2019 12/11/2019 12/12/2019 12/13/2019 12/15/2019 12/16/2019 12/16/2019

Tafur (Video Tape Deposition); Lisa Lehner; Sean Reardon (Deposition Transcript) (Court Reporter: Jeff Hook (AM) / Cathryn Jones (PM).) (tj) (Entered: 12/09/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/10/2019. Evidence entered, and Bench Trial continued to 12/11/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Sean Reardon (Deposition Testimony continued); Danielle Escontrias; Victor Galvez (Deposition Testimony); Lisa Horton. (Court Reporter Jeff Hook (AM) / Cathryn Jones.) (tj) (Entered: 12/10/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/11/2019. Evidence entered and Bench Trial continued to 12/12/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnessed: Stephen Vanegas (Deposition Transcript); Judge Robert Vinikoor; Dr. Justin Lenzo. (Court Reporter Cathryn Jones (am)/Jeff Hook (pm)) (tj) (Entered: 12/11/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/12/2019. Evidence entered, and bench trial continued to 12/13/2019 at 09:30 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Dr. Justin Lenzo (continued from 12/11/19); Lisa Horton (recalled); John Sandweg. (Court Reporter Jeff Hook (AM) / Cathryn Jones (PM).) (tj) (Entered: 12/12/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/13/2019. Evidence entered, and Bench Trial continued to 12/16/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Richard Hormiga (deposition); Dr. Julie Linton; Joseph Gastwirth (Deposition) (Court Reporter Jeff Hook (AM)/ Cathryn Jones (PM).) (tj) (Entered: 12/13/2019)
262 MEMORANDUM by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Patton, Stephen) (Entered: 12/15/2019)
263 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 4 (Redacted))(Patton, Stephen) (Entered: 12/16/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/16/2019. Evidence entered and

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Bench Trial continued to 12/17/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Lika Black; Andrew Kaskanlian. (Court Reporter: Jeff Hook (AM)/ Cathryn Jones (PM).) (tj) (Entered: 12/16/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/17/2019. Evidence entered, and bench trial continued to 12/18/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Andrew Kaskanlian (continued from 12/16); Jose Munguia; Stephen Venegas; Robert Mason. (Court Reporter Jeff Hook (AM) / Cathryn Jones (PM)) (tj) (Entered: 12/17/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/18/2019. Evidence entered and Bench Trial continued to 12/19/2019 at 9:30 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Robert Mason (continued); Linda Hyde. (Court Reporter Jeff Hook (AM)/ Cathryn Jones (PM)) (tj) (Entered: 12/18/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/19/2019. Evidence entered and Bench Trial continued to 12/20/2019 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Linda Hyde (continued); Qing Pan (Expert) (Court Reporter: Jeff Hook.) (tj) (Entered: 12/19/2019)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 12/20/2019. Evidence entered, and Bench Trial continued to 1/13/2020 at 09:30 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Dr. Qing Pan (continued from 12/19/19); Geoffrey Pepple; Oscar Irizarry. (Court Reporter Jeff Hook (AM)/ Cathryn Jones (PM)) (tj) (Entered: 12/20/2019)
264 CERTIFICATE OF SERVICE by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO re 263 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) . (Patton, Stephen) (Entered: 12/23/2019)
265 RESPONSE re 262 Memorandum Plaintiffs' memorandum in support of admitting Plaintiffs' Demonstratives Nos. 21A, 22A, 23A, 24A, 25A, 26A, 27A, 28A, 28B, 28C, and 68 pursuant to Federal Rule of Evidence 1006 filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION

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AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parascandola, Christina) (Entered: 01/02/2020)
266 REPLY re 265 Response to Document, filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 01/06/2020)
MINUTE ORDER admitting Plaintiffs demonstratives Nos. 21A, 22A, 25A, 26A, 27A, 28A, 28B, 28C, and 68 Pursuant to Fed. R. Evid. 1006. It is hereby ORDERED that these documents are admitted as summaries. The Government has not disputed in its briefing that the demonstratives in question qualify as accurate summaries or charts under Rule 1006, that they reflect the content of a voluminous spreadsheet produced by the Government, and that the spreadsheet is itself admissible. Neither does the government dispute that exhibits initially offered as demonstratives can be properly admitted as summaries. The Government appears to be correct in saying that these demonstratives were produced approximately two weeks after the deadline for evidentiary exhibits and that they were updated during the trial. However, to the extent that the exhibits were untimely submitted, the Court can extend that deadline for the purpose of admitting these exhibits. This is equitable because the Government also supplemented its own exhibits after the deadline, ECF No. 259 , and, more importantly, because the Government updated its production of some of the data underlying these demonstrative exhibits during the second week of trial. There is no evidence that the Government was prejudiced by any delay, as it had access to earlier, largely identical versions of the same exhibits. Although the Government argues that it may have somehow changed its cross-examination at trial depending on whether the exhibits were only demonstratives rather than substantive, nowhere does it explain how this would be so and the Court cannot surmise what such a change would entail. SO ORDERED. Signed by Judge Rudolph Contreras on 1/9/2020. (lcrc2) (Entered: 01/09/2020)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 1/13/2020. Evidence entered, and Bench Trial continued to 1/14/2020 at 9:30 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Nancy Zinello; Sean Reardon. (Court Reporter Cathryn Jones (AM) / Jeff Hook (PM) (tj) (Entered: 01/13/2020)
Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed and held on 1/14/2020. Evidence entered, and bench trial continued to 1/15/2020 at 10:00 AM in Courtroom 14 before Judge Rudolph Contreras. Witnesses: Dawnisha Helland; Rebecca Jones. (Court Reporter Bill Zaremba (A.M.)/ Jeff Hook (P.M.).) (tj) (Entered: 01/14/2020)

01/15/2020 01/16/2020
01/17/2020 02/18/2020 02/18/2020 02/18/2020 02/18/2020
02/18/2020 02/18/2020

Minute Entry for proceedings held before Judge Rudolph Contreras: Bench Trial resumed on 1/15/2020. Evidence entered, and bench trial concluded. Witness: Melissa Harper. (Court Reporter: Cathryn Jones) Order to follow. (tj) (Entered: 01/15/2020)
MINUTE ORDER clarifying deadlines. It is hereby ORDERED that the following schedule shall govern the parties' post-trial submissions: Plaintiffs and Defendants shall both file proposed findings of fact and conclusions of law, along with separate briefing on remedies, on or before February 18, 2020. The parties shall respond to one another's filings on or before March, 10, 2020. SO ORDERED. Signed by Judge Rudolph Contreras on 1/16/2020. (lcrc2) (Entered: 01/16/2020)
Set/Reset Deadlines: Proposed Findings of Fact due by 2/18/2020. Responses due by 3/10/2020 (tj) (Entered: 01/17/2020)
267 MEMORANDUM by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Appendix Astatutes, # 2 Appendix B-regulations, # 3 Appendix C-executive orders, # 4 Affidavit Declaration)(Kisor, Colin) (Entered: 02/18/2020)
268 Proposed Findings of Fact by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Main Document 268 replaced on 2/20/2020) (ztj). (Entered: 02/18/2020)
269 MOTION for Leave to File Excess Pages by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 02/18/2020)
270 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A - Plaintiffs' Proposed Findings of Fact and Conclusions of Law Concerning Liability, # 2 Exhibit B Plaintiffs' Proposed Findings of Fact and Conclusions of Law Concerning Remedies)(Patton, Stephen) (Entered: 02/18/2020)
271 Proposed Findings of Fact by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 02/18/2020)
272 Proposed Findings of Fact by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 02/18/2020)

02/18/2020 02/19/2020 02/19/2020 02/19/2020
02/19/2020 02/20/2020 02/20/2020

273 MEMORANDUM by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 02/18/2020)
274 MOTION to Clarify re Order,,,,,, re Minute Order dated January 9, 2020 by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 02/19/2020)
MINUTE ORDER granting 274 Motion to Clarify. It is hereby ORDERED that Plaintiffs' demonstratives No. 23A and 24A are admitted as summaries pursuant to Rule 1006, for the same reasons given in the Court's Minute Order of January 9, 2020, which admitted Plaintiffs' other demonstratives as summaries. SO ORDERED. Signed by Judge Rudolph Contreras on 2/19/2020. (lcrc2) (Entered: 02/19/2020)
MINUTE SCHEDULING ORDER and ORDER granting 274 Motion for Leave to File Excess Pages. It is not entirely clear to the Court that the page limit requirements in LCvR 7(e) apply to proposed findings of fact and conclusions of law, because that rule only mentions a memorandum of points and authorities filed in connection with a motion. Nonetheless, the Motion for Leave to File Excess Pages is hereby GRANTED. It is FURTHER ORDERED that the parties' shall have forty-five days to respond to one another's proposed findings of fact and conclusions of law. The parties' responses shall be filed on or before April 3, 2020. SO ORDERED. Signed by Judge Rudolph Contreras on 2/19/2020. (lcrc2) (Entered: 02/19/2020)
275 NOTICE of Filing attaching demonstrative exhibits by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Lenzo Demonstrative Exhibits, # 2 Vinikoor Demonstrative Exhibits, # 3 Sandweg Demonstrative Exhibits, # 4 Linton Demonstrative Exhibits)(Goettel, Katherine) (Entered: 02/19/2020)
276 SEALED DOCUMENT filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT(This document is SEALED and only available to authorized persons.)(Alsterberg, Cara) (Entered: 02/20/2020)
277 Unopposed MOTION to Strike 268 Proposed Findings of Fact and Leave to File Under Seal by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Redacted Findings of Fact and Conclusions of Law, # 2 Text of Proposed Order)(Alsterberg, Cara). Added MOTION for Leave to File on 2/20/2020 (ztth). (Entered: 02/20/2020)

02/20/2020 02/24/2020
02/24/2020 03/03/2020 03/30/2020
03/30/2020
03/30/2020 04/09/2020

MINUTE ORDER granting 277 Motion to Strike. It is further ORDERED that 268 Defendants Proposed Findings of Fact & Conclusions of Law shall be replaced with a redacted version found in [277-1]. (So Ordered Judge Rudolph Contreras on 2/20/2020). (tj) (Entered: 02/20/2020)
278 NOTICE Joint Notice of the Parties' Understanding of the Time in Which to Respond to One Another's Briefing Regarding Remedies by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re Order on Motion for Leave to File Excess Pages,, (Parascandola, Christina) (Entered: 02/24/2020)
MINUTE ORDER: The parties are correct in their understanding of the briefing schedule in this case, as reflected in 278 the Parties' Joint Notice. SO ORDERED. Signed by Judge Rudolph Contreras on 2/24/2020. (lcrc2) (Entered: 02/24/2020)
Set/Reset Deadlines: Responses due by 4/3/2020 (tj) (Entered: 03/03/2020)
279 Unopposed MOTION for Extension of Time to File Response/Reply findings of fact and remedies brief by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Kisor, Colin) (Entered: 03/30/2020)
MINUTE ORDER granting 279 Defendants' Unopposed Motion for a 14-Day Extension of Time. It is hereby ORDERED that both parties shall have up to and including April 17, 2020 to respond to one another's proposed findings of fact and conclusions of law concerning both liability and remedies and to one another's memoranda concerning remedies. SO ORDERED. Signed by Judge Rudolph Contreras on 3/30/2020. (lcrc2) (Entered: 03/30/2020)
Set/Reset Deadlines: Responses due by 4/17/2020. (tj) (Entered: 03/30/2020)
280 TRANSCRIPT OF BENCH TRIAL - DAY 1 - MORNING SESSION before Judge Rudolph Contreras held on December 2, 2019. Page Numbers: 1 - 126. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from th e court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
281 TRANSCRIPT OF BENCH TRIAL - DAY 1 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 2, 2019. Page Numbers: 127 - 246. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchase d from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
282 TRANSCRIPT OF BENCH TRIAL - DAY 2 - MORNING SESSION before Judge Rudolph Contreras held on December 3, 2019. Page Numbers: 247 - 364. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
283 TRANSCRIPT OF BENCH TRIAL - DAY 2 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 3, 2019. Page Numbers: 365 - 498. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchase d from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
284 TRANSCRIPT OF BENCH TRIAL - DAY 3 - MORNING SESSION before Judge Rudolph Contreras held on December 4, 2019. Page Numbers: 499 - 626. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
285 TRANSCRIPT OF BENCH TRIAL - DAY 3 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 4, 2019. Page Numbers: 627 - 712. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchase d from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
286 TRANSCRIPT OF BENCH TRIAL - DAY 4 - MORNING SESSION before Judge Rudolph Contreras held on December 5, 2019. Page Numbers: 713 - 824. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
287 TRANSCRIPT OF BENCH TRIAL - DAY 4 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 5, 2019. Page Numbers: 825 - 954. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchase d from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
288 TRANSCRIPT OF BENCH TRIAL - DAY 5 - MORNING SESSION before Judge Rudolph Contreras held on December 6, 2019. Page Numbers: 955 - 1101. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased fro m the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
289 TRANSCRIPT OF BENCH TRIAL - DAY 5 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 6, 2019. Page Numbers: 1102 - 1231. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purcha sed from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
290 TRANSCRIPT OF BENCH TRIAL - DAY 6 - MORNING SESSION before Judge Rudolph Contreras held on December 9, 2019. Page Numbers: 1232 - 1277. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased fr om the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
291 TRANSCRIPT OF BENCH TRIAL - DAY 6 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 9, 2019. Page Numbers: 1278 - 1400. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purcha sed from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
292 TRANSCRIPT OF BENCH TRIAL - DAY 7 - MORNING SESSION before Judge Rudolph Contreras held on December 10, 2019. Page Numbers: 1401 - 1541. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased f rom the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
293 TRANSCRIPT OF BENCH TRIAL - DAY 7 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 10, 2019. Page Numbers: 1542 - 1695. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purcha sed from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
294 TRANSCRIPT OF BENCH TRIAL - DAY 8 - MORNING SESSION before Judge Rudolph Contreras held on December 11, 2019. Page Numbers: 1696 - 1834. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchas ed from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
295 TRANSCRIPT OF BENCH TRIAL - DAY 8 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 11, 2019. Page Numbers: 1835 - 1992. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
296 TRANSCRIPT OF BENCH TRIAL - DAY 9 - MORNING SESSION before Judge Rudolph Contreras held on December 12, 2019. Page Numbers: 1993 - 2123. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased f rom the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
297 TRANSCRIPT OF BENCH TRIAL - DAY 9 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 12, 2019. Page Numbers: 2124 - 2289. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purcha sed from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
298 TRANSCRIPT OF BENCH TRIAL - DAY 10 - MORNING SESSION before Judge Rudolph Contreras held on December 13, 2019. Page Numbers: 2290 - 2442. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
299 TRANSCRIPT OF BENCH TRIAL - DAY 10 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 13, 2019. Page Numbers: 2443 - 2473. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purc hased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
300 TRANSCRIPT OF BENCH TRIAL - DAY 11 - MORNING SESSION before Judge Rudolph Contreras held on December 16, 2019. Page Numbers: 2474 - 2577. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased f rom the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
301 TRANSCRIPT OF BENCH TRIAL - DAY 11 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 16, 2019. Page Numbers: 2578 - 2733. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purc hased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
302 TRANSCRIPT OF BENCH TRIAL - DAY 12 - MORNING SESSION before Judge Rudolph Contreras held on December 17, 2019. Page Numbers: 2734 - 2854. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased f rom the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
303 TRANSCRIPT OF BENCH TRIAL - DAY 12 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 17, 2019. Page Numbers: 2855 - 3006. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purc hased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
304 TRANSCRIPT OF BENCH TRIAL - DAY 13 - MORNING SESSION before Judge Rudolph Contreras held on December 18, 2019. Page Numbers: 3007 - 3127. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
305 TRANSCRIPT OF BENCH TRIAL - DAY 13 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 18, 2019. Page Numbers: 3128 - 3278. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purc hased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
306 TRANSCRIPT OF BENCH TRIAL - DAY 14 - MORNING & AFTERNOON SESSIONS before Judge Rudolph Contreras held on December 19, 2019. Page Numbers: 3279 - 3554. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
307 TRANSCRIPT OF BENCH TRIAL - DAY 15 - MORNING SESSION before Judge Rudolph Contreras held on December 20, 2019. Page Numbers: 3555 - 3661. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
308 TRANSCRIPT OF BENCH TRIAL - DAY 15 - AFTERNOON SESSION before Judge Rudolph Contreras held on December 20, 2019. Page Numbers: 3662 - 3766. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purc hased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
309 TRANSCRIPT OF BENCH TRIAL - DAY 16 - MORNING SESSION before Judge Rudolph Contreras held on January 13, 2020. Page Numbers: 3767 - 3890. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchas ed from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
310 TRANSCRIPT OF BENCH TRIAL - DAY 16 - AFTERNOON SESSION before Judge Rudolph Contreras held on January 13, 2020. Page Numbers: 3891 - 3994. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
311 TRANSCRIPT OF BENCH TRIAL - DAY 17 - MORNING SESSION before Judge Rudolph Contreras held on January 14, 2020. Page Numbers: 3995 - 4158. Date of Issuance: April 9, 2020. Court Reporter: William Zaremba. Telephone number: 202-354-3249. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purch ased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
312 TRANSCRIPT OF BENCH TRIAL - DAY 17 - AFTERNOON SESSION before Judge Rudolph Contreras held on January 14, 2020. Page Numbers: 4159 - 4301. Date of Issuance: April 9, 2020. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via

PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/09/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
313 TRANSCRIPT OF BENCH TRIAL - DAY 18 - MORNING SESSION before Judge Rudolph Contreras held on January 15, 2020. Page Numbers: 4302 - 4404. Date of Issuance: April 9, 2020. Court Reporter: Cathryn Jones. Telephone number: 202-354-3246. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchas ed from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/15/2020

Redaction Request due 4/30/2020. Redacted Transcript Deadline set for 5/10/2020. Release of Transcript Restriction set for 7/8/2020.(Hook, Jeff) (Entered: 04/09/2020)
314 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Proposed Findings of Fact and Conclusions of Law Concerning Liability, ECF No. 271, and Remedies, ECF No. 272, and to Plaintiffs' Memorandum Concerning Remedies, ECF No. 273 by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 04/15/2020)

04/17/2020 04/17/2020 04/17/2020 04/17/2020 04/17/2020 04/17/2020
04/18/2020 04/18/2020

315 RESPONSE re 314 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Proposed Findings of Fact and Conclusions of Law Concerning Liability, ECF No. 271, and Remedies, ECF No. 272, and to Plaintiffs' Memorandum Concerning Remedies, ECF No. filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 04/17/2020)
316 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Plaintiffs' Response to Defendants' Findings of Fact and Conclusions of Law)(Patton, Stephen) (Entered: 04/17/2020)
317 RESPONSE re 268 Proposed Findings of Fact and Conclusions of Law filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Appendix A)(Patton, Stephen) (Entered: 04/17/2020)
318 RESPONSE re 267 Memorandum, regarding Proposed Remedies filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 04/17/2020)
319 REPLY re 273 Memorandum Regarding Proposed Remedies filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Entered: 04/17/2020)
320 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Statement of Facts regarding Defendants' Responses to Plaintiffs' Proposed Findings of Fact Concerning Liability, # 2 Statement of Facts regarding Defendants' Responses to Plaintiffs' Proposed Findings of Fact Concerning Remedies)(Alsterberg, Cara) (Entered: 04/17/2020)
321 RESPONSE re 271 Proposed Findings of Fact Concerning Liability filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Entered: 04/18/2020)
322 RESPONSE re 272 Proposed Findings of Fact Concerning Remedy filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Entered: 04/18/2020)

04/18/2020 04/20/2020 04/21/2020
04/23/2020 04/30/2020 04/30/2020 05/01/2020

VACATED AS PER MINUTE ORDER DATED 4/21/2020.........MINUTE ORDER denying as moot 314 Motion for Extension of Time to File Response/Reply. The Government's Response having been filed yesterday evening, the Motion is DENIED AS MOOT. SO ORDERED. Signed by Judge Rudolph Contreras on 4/18/2020. (lcrc2) (Entered: 04/18/2020)
323 SUPPLEMENT re 271 and 272 Proposed Findings of Fact by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) Modified event title and links on 4/21/2020 (znmw). (Entered: 04/20/2020)
MINUTE ORDER: VACATING Minute Order issued on 4/18/2020, and granting in part and denying as moot in part 314 Motion for Extension of Time to File Response/Reply. The Court's Minute order denying the Motion for Extension of Time as moot in its entirety is hereby VACATED. The Motion for Extension of Time is GRANTED IN PART with respect to Defendants Responses to Sections II.C and II.D. of 271 Plaintiffs' Proposed Findings of Fact and Conclusions of Law Concerning Liability, and Defendants' 323 Addendum to Defendants' Responses is deemed timely filed on April 20, 2020 because Plaintiffs did not oppose a limited extension of time to that date. In all other respects the Motion for Extension of Time is denied as moot. SO ORDERED. Signed by Judge Rudolph Contreras on 4/21/2020. (lcrc2) (Entered: 04/21/2020)
324 NOTICE OF CORRECTION TO PLAINTIFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING LIABILITY by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO re 271 Proposed Findings of Fact (Patton, Stephen) (Entered: 04/23/2020)
325 Consent MOTION for Extension of Time re transcript 291 , 281 , 307 , 305 , 313 , 292 , 287 , 308 , 290 , 285 , 299 , 3 12 , 310 , 283 , 304 , 300 , 302 , 311 , 298 , 303 , 301 , 296 , 289 , 282 , 2 95 , 297 , 309 , 284 , 286 , 280 , 288 , 294 , 293 , 306 by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 04/30/2020)
MINUTE ORDER granting 325 Motion for Extension of Time. It is hereby ORDERED that the parties shall have up to and including May 7, 2020 to file Trial Transcript Redaction Requests. SO ORDERED. Signed by Judge Rudolph Contreras on 4/30/2020. (lcrc2) (Entered: 04/30/2020)
Set/Reset Deadlines: Trial transcript requests due by 5/7/2020. (tj) (Entered: 05/01/2020)

05/07/2020 05/07/2020 05/07/2020 05/08/2020 05/08/2020
05/08/2020 06/22/2020 06/22/2020

326 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Trout Perez, Tia) (Entered: 05/07/2020)
327 MOTION to Redact re: Transcript 291 , 308 , 290 , 285 , 310 , 302 , 301 , 289 , 295 , 286 , 294 , 306 by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Attachments: # 1 Text of Proposed Order)(Trout Perez, Tia) (Entered: 05/07/2020)
328 Transcript Redaction Request re Transcript 291 , 303 , 301 , 296 , 289 , 281 , 307 , 305 , 295 , 292 , 287 , 308 , 309 , 284 , 286 , 290 , 288 , 285 , 312 , 310 , 294 , 293 , 304 , 300 , 302 , 298 , 306 by attorney Tia T. Trout Perez. (Trout Perez, Tia) (Entered: 05/07/2020)
MINUTE ORDER granting 326 Sealed Motion for Leave to File Document Under Seal. Upon consideration of Plaintiffs' Motion it is hereby ORDERED that Plaintiffs may file their document under seal. SO ORDERED. Signed by Judge Rudolph Contreras on 5/8/2020. (lcrc2) (Entered: 05/08/2020)
MINUTE ORDER granting 327 Motion to Redact Transcripts. It is hereby ORDERED that the items identified in Plaintiffs' motion shall be redacted. The Court directs that the court reporters shall refile the unredacted transcripts associated with the motion to redact under seal and are further directed to make the necessary redactions pursuant to Plaintiffs' motions and to file the redacted transcripts on the docket. SO ORDERED. Signed by Judge Rudolph Contreras on 5/8/2020. (lcrc2) (Entered: 05/08/2020)
329 SEALED MOTION filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (This document is SEALED and only available to authorized persons.) (ztth) (Entered: 06/18/2020)
MINUTE ORDER granting 329 Plaintiffs' Sealed Motion to Redact Trial Transcripts. It is hereby ORDERED that the items identified in Plaintiffs' motion shall be redacted. The Court directs that the court reporters shall make the necessary redactions pursuant to Plaintiffs' Motion and shall refile the redacted transcripts on the docket. SO ORDERED. Signed by Judge Rudolph Contreras on 6/22/2020. (lcrc2) (Entered: 06/22/2020)
330 NOTICE OF SUPPLEMENTAL AUTHORITY by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT

06/22/2020
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07/02/2020 07/06/2020 07/08/2020 07/17/2020 07/21/2020

(Attachments: # 1 Exhibit Exhibit A - Rodas Godinez v. ICE, No. 2:20cv-466 KWR/SMV, 2020 WL 3402059 (D.N.M. June 19, 2020))(Parascandola, Christina) (Entered: 06/22/2020)
MINUTE ORDER. It is hereby ORDERED that the items identified in 328 Plaintiffs' Transcript Redaction Request shall be redacted. The Court directs that the court reporters shall make the necessary redactions pursuant to Plaintiffs' Motion and shall refile the redacted transcripts on the docket. SO ORDERED. Signed by Judge Rudolph Contreras on 6/22/2020. (lcrc2) (Entered: 06/22/2020)
331 RESPONSE re 330 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 06/26/2020)
332 RESPONSE re 330 NOTICE OF SUPPLEMENTAL AUTHORITY, to Plaintiffs' Response to Defendants' Notice of Supplemental Authority filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Parascandola, Christina) (Entered: 06/30/2020)
333 FINDINGS OF FACT AND CONCLUSIONS OF LAW concerning liability. See document for details. Signed by Judge Rudolph Contreras on 7/2/2020. (lcrc2) (Entered: 07/02/2020)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear before the Court by videoconference for a hearing concerning remedies on July 21, 2020 at 2:00 p.m. Instructions regarding the videoconference will follow via email. SO ORDERED. Signed by Judge Rudolph Contreras on 7/6/2020. (lcrc2) (Entered: 07/06/2020)
Set/Reset Hearings: Telephone Conference set for 7/21/2020 at 02:00 PM in Telephonic/VTC before Judge Rudolph Contreras. (tj) (Entered: 07/08/2020)
MINUTE ORDER granting 263 Sealed Motion for Leave to File Document Under Seal. It is hereby ORDERED that ECF No. 262-4 shall remain under seal. SO ORDERED. Signed by Judge Rudolph Contreras on 7/17/2020. (lcrc2) (Entered: 07/17/2020)
MINUTE ORDER: It is hereby ORDERED that on or before August 4, 2020 the parties shall meet and confer and jointly submit to the Court a proposed method by which the selection and appointment of a Monitor would proceed, should the Court order that one will be appointed. It is FURTHER ORDERED that on or before August 20, 2020, Defendants shall file with the Court and share with Plaintiffs a proposed broadcast

07/21/2020 07/21/2020 08/04/2020 08/14/2020
08/17/2020
08/18/2020

message to be distributed from ICE Enforcement & Removal Operations to all ICE field offices instructing field officers that the Risk Classification Assessment tool never recommends release, that it should not be run as part of an age-out custody determination, and that its recommendations should only be considered in custody level determinations not decisions concerning whether to detain or release. It is FURTHER ORDERED that on or before September 21, 2020, Defendants shall file with the Court and share with Plaintiffs (a) proposed revisions to the Age-Out Review Worksheet; (b) proposed new and revised training materials for ICE field officers concerning age-out custody determinations; and (c) a list of materials and/or reports that Defendants would propose the Government would make available to Plaintiffs' counsel and to any Monitor that the Court might appoint. SO ORDERED. Signed by Judge Rudolph Contreras on 7/21/2020. (lcrc2) (Entered: 07/21/2020)
Minute Entr for proceedings held before Judge Rudolph Contreras: Video Conference held on 7/21/2020. Parties inform the court of the status of this action, and order to be issued by the court. (Court Reporter: Sara Wick.) (tj) (Entered: 07/21/2020)
Set/Reset Deadlines: Meet & Confer Statement due by 8/4/2020. proposed broadcast message due by 8/20/2020. (tj) (Entered: 07/21/2020)
334 Joint STATUS REPORT regarding selection of a monitor by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Goettel, Katherine) (Entered: 08/04/2020)
335 NOTICE of Proposed Broadcast Message and Acknowledgement Form by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re Order,,,,, (Attachments: # 1 Attachment 1, Draft Broadcast Message, # 2 Attachment 2, Draft Acknowledgement Form)(Alsterberg, Cara) (Entered: 08/14/2020)
MINUTE ORDER: It is hereby ORDERED that the draft broadcast message attached to 335 Defendants Notice of Proposed Broadcast Message is hereby APPROVED. It is FURTHER ORDERED that Defendants shall distribute the broadcast message from ICE ERO to all ICE field offices on or before August 21, 2020. SO ORDERED. Signed by Judge Rudolph Contreras on 8/17/2020. (lcrc2) (Entered: 08/17/2020)
Set/Reset Deadlines: Distribution of Broadcast message due by 8/21/2020. (tj) (Entered: 08/18/2020)

08/21/2020 09/04/2020 09/15/2020 09/15/2020 09/21/2020
09/22/2020 09/22/2020 09/30/2020

336 NOTICE of Compliance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT re Order, (Alsterberg, Cara) (Entered: 08/21/2020)
337 MOTION to issue interim guidance by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT (Attachments: # 1 Exhibit 1, Draft Interim Guidance, # 2 Text of Proposed Order)(Alsterberg, Cara) (Entered: 09/04/2020)
338 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H, # 6 Exhibit I, # 7 Exhibit J, # 8 Exhibit K, # 9 Text of Proposed Order)(Patton, Stephen) (Entered: 09/15/2020)
339 Memorandum in opposition to re 337 MOTION to issue interim guidance and in support of plaintiffs' proposed interim guidance filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Patton, Stephen) (Entered: 09/15/2020)
340 COMPLIANCE MEMORANDUM re Order, by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit 1, Updated Age-Out PowerPoint, # 2 Exhibit 2, Revised AORW, # 3 Exhibit 3, ATD and Bond Basics for FOJCs, # 4 Exhibit 4, Custody Determination Chart, # 5 Text of Proposed Order)(Alsterberg, Cara) (Entered: 09/21/2020)
341 RESPONSE re 340 and Correction to Defendants' "Compliance Memorandum" filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) Modified to add link on 9/24/2020 (znmw). (Entered: 09/22/2020)
342 REPLY to opposition to motion re 337 MOTION to issue interim guidance filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Attachments: # 1 Exhibit 1, August 19, 2020 E-mail Correspondence, # 2 Exhibit 2, September 11, 2020 Email Correspondence)(Alsterberg, Cara) (Entered: 09/22/2020)
MINUTE ORDER: Upon consideration of 340 Defendants' Compliance Memorandum and 341 Plaintiffs' response thereto, the parties shall abide by the following schedule: Plaintiffs shall have until October 21, 2020,

10/21/2020 11/12/2020 11/12/2020
11/12/2020 11/19/2020 11/23/2020

to review and propose revisions to Defendants' draft, updated training materials, and Age-Out Review Worksheet; The parties shall meet and confer for a period of 15 business days concerning plaintiffs' proposed revisions in an attempt to, if possible, reach agreement (the parties may jointly request an extension of this three week period); If the parties are unable to reach agreement in whole or in part after the above-referenced consultation period (or extended consultation period), no later than two weeks after such expiration date, defendants shall submit their brief supporting their position on the disputed issues and plaintiffs shall submit their response one week thereafter. The Court will hold a videoconference hearing as soon thereafter as practical. SO ORDERED. Signed by Judge Rudolph Contreras on 9/30/2020. (lcrc2) (Entered: 09/30/2020)
343 NOTICE OF COMPLIANCE by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 10/21/2020)
344 Joint MOTION for Extension of Time to Meet and Confer by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO (Patton, Stephen) (Entered: 11/12/2020)
MINUTE ORDER: granting 344 Joint Motion for Extension of Time to Meet and Confer. It is hereby ORDERED that the parties shall have up to and including November 19, 2020 to meet and confer concerning Plaintiffs' proposed revisions to Defendants' drafting training materials and Age-Out Worksheet. It is FURTHER ORDERED Defendants shall submit their statement of position on any unresolved issues on or before December 3, 2020, and Plaintiffs shall submit their statement of position on any unresolved issues on or before December 10, 2020. SO ORDERED. Signed by Judge Rudolph Contreras on 11/12/2020. (lcrc2) (Entered: 11/12/2020)
Set/Reset Deadlines: Meet & Confer Statement due by 11/19/2020. Statement due by 12/3/2020. (tj) (Entered: 11/12/2020)
345 Joint STATUS REPORT CONCERNING THE RESULTS OF THE PARTIES EFFORTS TO AGREE UPON REVISED TRAINING MATERIALS AND AN AGE OUT REVIEW WORKSHEET by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Patton, Stephen) (Entered: 11/19/2020)
346 NOTICE of Correction to Exhibit A by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO re 345 Status Report, (Attachments: # 1 Exhibit A)(Patton, Stephen) (Entered: 11/23/2020)

12/03/2020
12/08/2020 12/08/2020 12/08/2020 12/10/2020
12/11/2020 12/16/2020 12/16/2020
12/16/2020 12/16/2020

347 RESPONSE TO ORDER OF THE COURT re Order on Motion for Extension of Time to,, Defendants' statement of position on any unresolved issues filed by DEPARTMENT OF HOMELAND SECURITY, THOMAS HOMAN, KIRSTJEN M. NIELSEN, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT. (Alsterberg, Cara) (Entered: 12/03/2020)
348 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. Attorney Patrick T. Haney terminated. (Haney, Patrick) (Entered: 12/08/2020)
349 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. Attorney Barack Echols terminated. (Echols, Barack) (Entered: 12/08/2020)
350 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. Attorney Jonathan Fombonne terminated. (Fombonne, Jonathan) (Entered: 12/08/2020)
351 RESPONSE re 347 Response to Order of the Court, Plaintiffs' Submission Concerning Unresolved Issues with Respect to ICE's "AgeOut Review Worksheet" filed by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Patton, Stephen) (Entered: 12/10/2020)
MINUTE ORDER: It is hereby ORDERED that the parties shall appear before the Court by telephone for a status conference on December 16, 2020 at 11:00 am. SO ORDERED. Signed by Judge Rudolph Contreras on 12/11/2020. (lcrc2) (Entered: 12/11/2020)
352 ORDER REFERRING CASE to Magistrate Judge Harvey for mediation. See document for details. Signed by Judge Rudolph Contreras on 12/16/2020. (lcrc2) (Entered: 12/16/2020)
Minute Entry for proceedings held before Judge Rudolph Contreras: Telephonic Status Conference held on 12/16/2020. For the reasons stated on the record, the parties shall meet and confer. Case to be referred to Magistrate Judge G. Michael Harvey for mediation. (Court Reporter: Elizabeth Saint Loth.) (kt) (Entered: 12/16/2020)
CASE DIRECTLY REFERRED to Magistrate Judge G. Michael Harvey for mediation. (zsb) (Entered: 12/16/2020)
353 MEDIATION STANDING ORDER. See Order for details. Settlement Conference set for 2/2/2021 at 10:00 AM in Telephonic/VTC before

Magistrate Judge G. Michael Harvey. Signed by Magistrate Judge G. Michael Harvey on 12/16/20. (MFB) (Entered: 12/16/2020)

12/22/2020

354 TRANSCRIPT OF PROCEEDINGS, before Judge Rudolph Contreras, held on 12-16-2020. Page Numbers: 1 - 14. Date of Issuance: 12-222020. Court Reporter: Elizabeth SaintLoth, Telephone number: 202-3543242. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above . After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 1/12/2021. Redacted Transcript Deadline set for 1/22/2021. Release of Transcript Restriction set for 3/22/2021.(SaintLoth, Elizabeth) (Entered: 12/22/2020)

01/22/2021

355 Joint STATUS REPORT AND REQUEST FOR RULINGS ON UNRESOLVED ISSUES by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (Patton, Stephen) (Entered: 01/22/2021)

01/22/2021

357 MOTION for Order by WILMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO. (See Docket Entry 355 to view document) (ztth) (Entered: 01/28/2021)

01/27/2021 02/02/2021

356 NOTICE of Appearance- Pro Bono by Mark Fleming on behalf of All Plaintiffs (Fleming, Mark) (Entered: 01/27/2021)
Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Settlement Conference held on 2/2/2021. (MFB) (Entered: 02/03/2021)

PACER Service Center Transaction Receipt

02/04/2021 20:45:32

PACER Login:

CRClearinghouse Client Code: Hudson-Erdman

Description:

Docket Report

Search Criteria:

1:18-cv-00508RC

Billable Pages: 30

Cost:

3.00

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WTLMER GARCIA RAMIREZ, SULMA HERNANDEZ ALFARO, on behalf of themselves and others similarly situated,
Plaintiffs,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE); THOMAS HOMAN, Acting Director of ICE; DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, Secretary of Homeland Security,
Defendants.

)

)

) ) Case No.
) ) Class Action
)
)

) Case: 1:18-cv-00508

(D-Deck)

) Assigned To : Contreras, Rudolph
) Assign. Date: 3/5/2018 ) Description: TRO/PI )

)

)

)

)

)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. Plaintiffs are immigrant teenagers held in the custody of Defendant U.S. Immigration and Customs Enforcement (ICE). They bring this action on behalfofthemselves and other similarly situated immigrant teenagers, because ICE has failed to consider them for placement in “the least restrictive setting available” and to provide them with meaningful alternatives to detention, as required by amendments to the Trafficking Victims Protection Reauthorization Act (TVPRA). See 8 U.S.C. § 1232(c)(2)(B). 2. Congress enacted the TVPRA in 2008 to protect immigrant children who come to the United States without a parent or guardian. See Pub. L. 110-457 (codified at 8 U.S.C. § 1232). The TVPRA requires federal officials to screen these unaccompanied children for certain vulnerabilities, including whether they are victims of trafficking and whether they fear persecution in their home countries. See 8 U.S.C. § 1232(a)(4). The TVPRA also enacted procedures for

ensuring “safe and secure placements” for these children, see § 1232(c)(1), and mandated that the Department of Health and Human Service’s Office of Refugee Resettlement (ORR) promptly place them in the “least restrictive setting,” such as with a parent or family member. 8 U.S.C. § 1232(c)(2)(A).
3. In 2013, Congress enacted an amendment to the TVPRA extending many of these same protections to unaccompanied immigrant children who turn 18 and are transferred by ORR into the custody of ICE. See Pub. L. 113-4, § 1261, 127 Stat. 120-122 (Mar. 7, 2013). That amendment, which is codified as Section 1232(c)(2)(B), requires that ICE “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.” Section 1232(c)(2)(B) further requires that such children “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... with an individual or an organizational sponsor, or in a supervised group home.” 8 U.S.C. § 1232(c)(2)(B).
4. Each of the Plaintiffs recently turned 18 and was transferred by ORR to ICE. Upon their transfer to ICE, ICE did not comply with the requirements set forth in Section 1232(c)(2)(B). Specifically, it did not “consider placement in the least restrictive setting available” or make any alternative to detention programs available. Quite the opposite, it automatically placed Plaintiffs in adult detention without considering any alternatives.
5. On information and belief, ICE is routinely and systematically failing to comply with the requirements of Section 1232(c)(2)(B) with respect to unaccompanied immigrant children transferred into ICE’s custody when they turn 18. Moreover, ICE has failed to establish any policies, programs, or procedures implementing Section 1232(c)(2)(B)’s statutory requirements
2

that ICE “consider placement in the least restricted] setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight,” and that ICE provide these immigrants with “alternative to detention programs.” 8 U.S.C. § 1232(c)(2)(B). Instead, ICE automatically places unaccompanied immigrants who have turned 18 into adult detention without considering or making available the least restrictive (or other) alternatives.
6. Accordingly, Plaintiffs seek to represent a class of all unaccompanied immigrant children who have been transferred to the custody of ICE upon turning 18 and as to whom ICE has not considered placement in the least restrictive setting available and/or made alternative to detention programs available, as required by Section 1232(c)(2)(B).
7. Plaintiffs ask this Court to grant declaratory and injunctive relief to each of them individually and to the class they represent, enjoin ICE from detaining Plaintiffs and other class members without considering placement in the least restrictive setting available after taking into account their danger to themselves and others and risk offlight, and making alternative to detention programs available to them, including release to individual and organizational sponsors and supervised group homes.
JURISDICTION AND VENUE 8. This Court has jurisdiction over the claims alleged in this Complaint pursuant to 28 U.S.C. § 1331, as they arise under federal statutes, including 8 U.S.C. § 1232(c)(2)(B) and 5 U.S.C. § 706(2). 9. The Administrative Procedure Act, 5 U.S.C. § 706(2), waives the U.S. government’s sovereign immunity where, as here, federal agencies have acted in violation of the law. 10. The Court has authority to issue a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and Rule 57 of the Federal Rules of Civil Procedure.
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11. The Court has authority to grant injunctive relief pursuant to 5 U.S.C. §§ 702 and 706, and Rule 65 of the Federal Rules of Civil Procedure.
12. Venue properly lies in the District of Columbia because a substantial part of the events and omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(e)(1)(B). Defendants are headquartered in Washington, D.C., and on information and belief, Defendants’ decisions regarding the policies and procedures relating to the detention of 18 year-olds who “age out” of ORR custody are being made in the District of Columbia.
PARTIES 13. Plaintiff Wilmer Garcia Ramirez is an 18 year-old from Guatemala. He entered the United States without inspection on March 26, 2017, at the age of 17. He is currently detained at the Eloy Detention Center in Eloy, Arizona. 14. Plaintiff Sulma Hernandez Alfaro is an 18 year-old from Honduras. She entered the United States without inspection in December 2016, at the age of 16. She is currently detained at the Port Isabel Service Detention Center in Los Fresnos, Texas. 15. Defendant Department of Homeland Security (DHS) is a department of the Executive Branch of the United States government. It is located in Washington, D.C. DHS is responsible for enforcing federal laws governing border control, customs, trade, and immigration. 16. Defendant Kirstjen Nielsen is sued in her official capacity as the Secretary of the DHS. In this capacity, she directs each agency within DHS, including ICE. As a result, in her official capacity, Secretary Nielsen is responsible for the administration and enforcement of the immigration laws. 17. Defendant ICE is an agency within DHS. It, too, is located in Washington, D.C. It is in charge of the administration and enforcement of federal immigration laws, including
4

implementing and complying with 8 U.S.C. § 1232(c)(2)(B), and determining whether and where to detain Plaintiffs and other immigrants who are transferred by DHS into the custody of ICE upon turning 18.
18. Defendant Thomas Homan is sued in his official capacity as the Acting Director of ICE. In that capacity, he is responsible for the administration and enforcement of federal immigration laws, including implementing and complying with 8 U.S.C. § 1232(c)(2)(B), and determining whether and where to detain Plaintiffs and other immigrants who are transferred by DHS into the custody of ICE upon turning 18.
STATEMENT OF FACTS A. Wilmer’s Background and Immigration History 19. Wilmer Garcia Ramirez was bom in 1999, in Caserio Pinalito Matazano, within the department of Chicimula, Guatemala. He is one of six children. His family lived in poverty in Guatemala, sharing a one-room house with dirt walls, a tin roof, and no floors. 20. Wilmer began working in his family’s fields at the age of six. Wilmer walked with his father more than an hour to the fields and worked there five days per week, cutting underbrash with a machete. 21. When he was approximately 8 years old, Wilmer began working in other people’s, fields. He worked daily for 9 or more hours. He would often make the 30-minute walk to the fields by himself. 22. When Wilmer was approximately 9 years old, his father began taking him and his brothers to work at a coffee plantation in Escipulas, Guatemala. From the ages of 9 to 15, Wilmer worked at the coffee plantation in Escipulas for three months each year. 23. The working conditions in Escipulas were difficult. Wilmer worked from about 6 a.m. to about 5 p.m. with a small break for lunch. The work involved cutting coffee beans by
5

hand. He was required to stand along the row of plants all day and was not allowed to take breaks, even to use the restroom. Wilmer was required to fill about two and a half barrels of coffee beans every day. In return, he earned approximately $3.40 (25 Quetzales) daily, all of which he gave to his parents.
24. While working in Escipulas, Wilmer’s boss provided housing and food. Wilmer worked with 15 other people, with whom he stayed in a bedroom-sized open-air structure. Wilmer slept on the floor.
25. If Wilmer did not complete his work, his boss would not feed him. Even when he was fed, most meals were limited to beans and rice.
26. In 2016, when Wilmer was 16, he went to work at another coffee plantation in Honduras for three months. He traveled there alone.
27. At the coffee plantation in Honduras, Wilmer worked 11 or more hours a day, cutting coffee, cleaning plants, and removing weeds from the fields. He would work for about 20 days, take a six-hour bus ride home to visit for a night, and then return to Honduras.
28. In Honduras, Wilmer had to fill three barrels full of coffee beans each day, and was paid approximately $ 1.35 (10 Quetzales) for each barrel. Each time he returned home, he gave the money to his parents.
29. The conditions at this plantation were even worse than those in Escipulas. Again, Wilmer slept on the floor with approximately 30 other workers. And while Wilmer’s boss provided food, he withheld it whenever he was unsatisfied with a laborer’s work. In one instance, Wilmer was not fed for two days. When Wilmer and the other workers were fed, it was only beans and water.
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30. In March 2017, at the age of 17, Wilmer left Guatemala, seeking a better life in the United States.
31. Wilmer entered the United States near Andrade, California, on or about March 26, 2017.
32. Wilmer was apprehended by U.S. Customs and Border Protection officers after he crossed the border. The officers determined that he was an unaccompanied alien child and transferred him to the custody of ORR.
3 3. While in ORR custody, Wilmer petitioned the Superior Court of Arizona to declare him a dependent ofthe State due to his parent’s neglect in Guatemala. The court granted Wilmer’s petition on September 19, 2017, finding that it was not in Wilmer’s best interest to be returned to Guatemala due to the circumstances described above, including being neglected by his parents and forced to work as a minor in deplorable conditions.
34. Wilmer then filed a petition for special immigrant juvenile status (SIJS) based on the state court’s dependency order. SIJS is granted to immigrant children who demonstrate that it is not in their best interests to return to their home country and parents because of abuse, abandonment, or neglect. 8 U.S.C. § 1101(a)(27)(J). If immigrant children meet the criteria for SIJS they are eligible for lawful permanent residency. Id.
35. U.S. Citizenship and Immigration Services received Wilmer’s SIJS application on October 12, 2017. That application remains pending. This is despite the fact that Wilmer meets all of the statutory criteria for SIJ status, as evidenced by the state court’s dependency order finding he suffered parental neglect in Guatemala and that it would not be in his best interest to return there.
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36. Wilmer has a family friend in Warmister, Pennsylvania, who is willing to act as his sponsor and provide for his care and custody.
37. ORR transferred Wilmer to the custody of ICE in 2017, on his eighteenth birthday. ICE is currently detaining him at Eloy Detention Center in Eloy, Arizona.
38. On January 5, 2018, Wilmer’s attorney sent a request to ICE asking the agency to release Wilmer to the least restrictive setting available as required by 8 U.S.C. § 1232(c)(2)(B). Wilmer included information about his SIJS application, his life in Guatemala, and his potential sponsor in Pennsylvania. ICE did not respond to this request. To date, ICE has failed to consider or make any determination regarding whether Wilmer’s detention was “the least restrictive setting available after taking into account [his] danger to self, danger to the community, and risk of flight.” It has also failed to make available to Wilmer any alternative to detention programs, as required by Section 1232(c)(2)(B).
B. Sulma’s Background and Immigration History 39. Sulma Hernandez Alfaro was bom in 2000, in Corquin, Copan, Honduras. 40. Sulma is one of ten children. For the first several years of her life, she, her mother, and her siblings lived with her paternal grandparents. Her father worked in a different town. 41. Sulma was subjected to multiple forms of abuse by members ofher father’s family, primarily her uncle. Although efforts were made to protect Sulma from this abuse, they were not successful. Sulma also feared for her safety because she was threatened, including with death, by her uncle. 42. Because of the abuse she suffered and the threats she faced, Sulma left Honduras and traveled to the United States so that should would be safe. She traveled by bus, train, and car to the United States. The trip took about a month and a half.
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43. Sulma entered the United States near Eagle Pass, Texas, on or about September 19, 2016. After she arrived, she approached a Border Patrol unit and asked for help. U.S. Customs and Border Patrol agents determined she was an unaccompanied alien child and transferred her to the custody of ORR. ORR placed her in a shelter for unaccompanied immigrant children in San Benito, Texas.
44. Sulma was housed at the ORR shelter in San Benito for more than a year. She was treated well there, provided good food, and the staff was friendly and kind. She particularly enjoyed the classes she was able to take, especially English and math.
45. While in ORR custody, Sulma was diagnosed with Post-Traumatic Stress Disorder resulting from the abuse she suffered in Honduras.
46. Sulma applied for asylum on November 16, 2017, based on the abuse and harm she suffered from her father’s family, and particularly her uncle. An asylum officer interviewed her regarding her asylum claim on January 17, 2018. She is currently awaiting a decision on her asylum application.
47. When Sulma turned 18 in 2018, ORR transferred her to ICE’s custody. ICE placed her in the Port Isabel Detention Center in Los Fresnos, Texas.
48. Sulma has had a difficult time adjusting to ICE detention. She currently sleeps in a large room with up to 67 other detainees. She is not receiving counseling to address her post-traumatic stress disorder, and she is not able to take classes or continue her schooling.
49. On February 2, 2018, counsel for Sulma sent a letter to ICE requesting that Sulma be released to La Posada Providencia, a shelter home for immigrants and refugees in San Benito, Texas. An ICE deportation officer responded verbally that Sulma would not be released, but did not give any reason for that decision.
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50. ICE has failed to consider or make any determination regarding whether Sulma’s detention is “the least restrictive setting available taking into account [her] danger to self, danger to the community, and risk of flight,” or to make any alternative to detention programs available to her, as required by Section 1232(c)(2)(B).
LEGAL BACKGROUND A. Laws And Agreements Governing The Care And Custody Of
Unaccompanied Immigrant Children 51. Three key laws and agreements govern the federal government’s treatment and custody of unaccompanied immigrant children: the 1997 Flores Settlement Agreement; the Homeland Security Act of 2002; and the TVPRA. 52. The Flores Settlement Agreement resulted from a lawsuit filed by a group of immigrant children challenging their detention and seeking to be released to family members and/or sponsors within the United States. See Flores v. Sessions, 862 F.3d 863, 869 (9th Cir. 2017) (discussing the history of the Flores litigation). In 1997, the plaintiff children entered into a consent decree with the federal government that created a nationwide policy governing the custody and release of immigrant children by immigration authorities. Flores v. Reno, No. CV 85-4544, Settlement Agreement, available at https://cliniclegal.org/sites/default/files/attachments /flores_v._reno_settlement_agreementJ.pdf (“Flores Settlement Agreement”). Among other things, the agreement requires: (a) release without unnecessary delay, (b) release to an adult caregiver, with parents and other family members given priority, and (c) placement in the “least restrictive setting.” Flores Settlement Agreement ff 11, 14. 53. At the time of the Flores Settlement Agreement, a single agency—the Immigration and Naturalization Service (INS)—administered the custody, detention, and deportation of immigrant children. In 2002, Congress passed the Homeland Security Act (HSA), which abolished
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the INS, created a new Department of Homeland Security, and transferred all functions related to the care and custody of unaccompanied immigrant children to ORR, a sub-department of the Department of Health and Human Services. Pub. L. 107-296, 116 Stat. 2153 (Nov. 25, 2002).
54. Section 462 ofthe HSA extended the key terms ofthe Flores Settlement Agreement to all unaccompanied immigrant children, including the requirement that ORR place such children in the least restrictive setting. Id.
55. In 2008, Congress further strengthened protections for unaccompanied children through the TVPRA. See Pub. L. 110-457, 122 Stat. 5044 (Dec. 23, 2008). Like the Flores Settlement Agreement, the TVPRA mandates that an unaccompanied child “shall be promptly placed in the least restrictive setting that is in the best interest of the child,” Id. (emphasis added).
56. Under the TVPRA, ORR endeavors to place each unaccompanied immigrant child with a suitable sponsor, such as a parent or family member. A sponsor is suitable if he or she is “capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A); see also ORR, Children Entering the United States Unaccompanied: Section 2, available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section -2.
57. In 2013, Congress enacted a statutory provision to address the placement of unaccompanied immigrant children who have turned 18 and been transferred into ICE custody. See Violence Against Women Act in 2013, Pub. L. 113-4, 127 Stat. 156, (codified at 8 U.S.C. § 1232(c)(2)(B) (March 7, 2013). That provision, which was codified as Section 1232(c)(2)(B), requires that ICE “shall consider placement” of such 18-year olds “in the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” Id. (emphasis added).
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58. Section 1232(c)(2)(B) further requires that such children “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... with an individual or an organizational sponsor, or in a supervised group home.” Id. (emphasis added).
B. The Requirement That Immigrant Children Be Placed In The “Least Restrictive Setting”
59. The term “least restrictive setting” was first used in the Flores Settlement Agreement, which required the government to release children to the “least restrictive setting appropriate to the minor’s age and special needs ....” Flores Settlement Agreement f 11.
60. Congress subsequently codified the term “least restrictive setting” in the TVPRA, requiring that immigrant children “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
61. ORR has multiple placement options for unaccompanied children. First, if a suitable sponsor is available, ORR will release the unaccompanied child to that sponsor. See 8 U.S.C. §§ 1232(b)(2)(A); 1232(c)(3). If a suitable sponsor is not available, ORR will house the child in one of three types of facilities—shelter care, a staff secure shelter, or a secure shelter, which is “akin to a local juvenile hall.” Saravia v. Sessions, No. 17-CV-03615-VC, 2017 WL 5569838, at *3 (N.D. Cal. Nov. 20, 2017), appeal docketed No. 18-15114.
62. The TVPRA requires that a child shall not be placed in a secure facility absent a finding that he or she is a flight risk or dangerous. 8 U.S.C. § 1232(c)(2)(A). And, when ORR places a child in a secure facility, it is required to review that placement every 30 days. Id.
63. In 2013, when Congress amended Section 1232, it chose to extend the foregoing protections afforded by the TVPRA to unaccompanied children to those immigrant children who turn 18 and are transferred into ICE’s custody. See Pub. L. 113-4, § 1261. As discussed above,
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Section 1232(c)(2)(B) requires that ICE place such 18 year-olds “in the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight,” and that ICE make available to them “alternative to detention programs, utilizing a continuum of alternatives ... which may include placement... with an individual or an organizational sponsor, or in a supervised group home.” 8 U.S.C. § 1232(c)(2)(B).
64. But unlike ORR, which has multiple non-detention options for placing a child, (i.e., release to a sponsor, foster care, shelter care, staff-secure shelters, or a secure shelter), ICE maintains, and places all immigrant children who tum 18 into, only one type of placement—adult detention. ICE does not comply with any of the requirements of Section 1232(c)(2)(B). It does not make a determination as to, or place 18-year olds in, “the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” Id. Nor does it make available to such immigrants “alternative to detention programs, utilizing a continuum of alternatives” that include placement “with an individual or an organizational sponsor, or in a supervised group home.” Id.
CLASS ACTION ALLEGATIONS 65. Plaintiffs seek to represent a class under Federal Rule of Civil Procedure 23(b)(2) consisting of: All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternative to detention programs, as required by 8 U.S.C.§ 1232(c)(2)(B). 66. The class is so numerous that joinder of all class members is impracticable. In Fiscal Year 2017, 40,810 children were referred to ORR as unaccompanied alien children. Of those, 32%, or 13,059 children were age 17. Plaintiffs estimate that at the present point in time, the class contains approximately 100 18 year-olds.
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67. In addition, because class members are routinely being granted immigration relief or removed from the country, the composition of the class changes on a regular basis and the class is inherently transitory.
68. All members of the class are subject to ICE’s failure to comply with, and to establish policies and practices implementing, the requirements of Section 1232(c)(2)(B).
69. There are questions of law and fact common to the class. These questions include, but are not limited to: whether ICE has violated Section 1232(c)(2)(B) by failing to place class members in the least restrictive setting available (considering danger to self and community and flight risk); and whether ICE has violated Section 1232(c)(2)(B) by failing to consider class members for alternative to detention programs, including providing the types of alternative placements described in the statute.
70. Plaintiffs’ claims are typical of the claims of all members of the proposed class. Plaintiffs have no interests separate from those of the class, and seek no relief other than the relief sought on behalf of the class.
71. Plaintiffs will fairly and adequately represent the interests of the class because (a) they are willing and able to represent the proposed class and have every incentive to pursue this action to a successful conclusion; (b) their interests do not in any way conflict with those of absent members of the class; and (c) they have retained counsel who are competent and experienced in litigating class actions, civil rights, and immigrants’ rights litigation.
72. The named Plaintiffs are adequate representatives. They have suffered the same injury as all class members—ICE’s failure to consider their placement in the least restrictive setting under Section 1232(c)(2)(B), and ICE’s failure to make alternatives to detention available utilizing a continuum that includes release to a sponsor or placement in a group home. Named
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Plaintiffs assert the same statutory violations as each member of the class: ICE’s failure to comply with Section 1232(c)(2)(B).
73. Plaintiffs are also adequate representatives based on the relief they seek. Plaintiffs seek two forms of relief: first, a declaration that ICE is failing to comply with Section 1232(c)(2)(B) and thereby violating the unambiguous commands in the statute; and second, an injunction barring ICE from continuing to violate Section 1232(c)(2)(B). If Plaintiffs succeed in obtaining this declaratory and injunctive relief, such relief will adequately ameliorate the harm ICE is causing to each class member. Accordingly, there is no conflict of interest among named Plaintiffs and the class members they represent.
74. Plaintiffs’ counsel are experienced in class action, civil rights, and immigrants’ rights litigation. Plaintiffs and Plaintiffs’ counsel will fairly and adequately represent the interests of the class.
75. Given the commonality of the questions shared by all class members, prosecuting separate claims as to individual class members would create a risk of inconsistent individual adjudications that would establish different and potentially incompatible rules and standards for ICE to apply when ORR transfers 18 year-old unaccompanied immigrants into ICE’s custody.
76. Defendants have acted, and failed to act, on grounds that apply generally to the class, such that injunctive and declaratory relief are appropriate with respect to the class as a whole.
77. Plaintiffs and the class they seek to represent have been directly injured by the Defendants’ violations of Section 1232(c)(2)(B). They are at risk of future harm from continuation of ICE’s failure to comply with Section 1232(c)(2)(B) and failure to enact policies, programs and practices implementing and effectuating Section 1232(c)(2)(B).
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COUNT I Administrative Procedure Act—5 U.S.C. § 706(2) Defendants Are Violating 8 U.S.C. § 1232(c)(2)(B) By Failing To Consider The Least Restrictive Setting For Plaintiffs And Failing To Make Alternatives To Detention Available 78. Plaintiffs reallege and incorporate the allegations of all preceding paragraphs. 79. ICE has failed to consider the “least restrictive setting” for each Plaintiff and has failed to consider each Plaintiff for alternatives to detention. 80. ICE’s failure to consider the least restrictive setting for each Plaintiff and to make alternative to detention programs available to Plaintiffs violates § 1232(c)(2)(B), which requires that ICE “shall consider placement in the least restrictive setting available” for all immigrants who are transferred into its custody after turning 18, and that these immigrants “shall be eligible to participate in alternative to detention programs.” Id. (emphasis added). 81. Each Plaintiff specifically asked ICE to place him or her in the least restrictive setting available and to allow him or her to participate in alternative to detention programs. Their requests have been summarily denied and/or ignored. 82. ICE has no policy or procedure for placing 18 year-olds who are transferred by ORR into the “least restrictive setting available after taking into account [their] danger to self, danger to the community, and risk of flight,” assessing what the least restrictive setting would be, or governing who has authority to make such a decision. 83. ICE has no policy or procedure for making 18 year-olds eligible to participate in alternatives to detention, including placement with an individual sponsor, an organizational sponsor, or in a supervised group home as an alternative to detention. 84. ICE’s failure to make “least restrictive setting” determinations violates Section 1232(c)(2)(B), which requires that ICE “shall consider placement in the least restrictive
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setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” Id. (emphasis added).
85. ICE’s failure to make alternatives to detention available to 18 year-olds transferred from ORR custody violates Section 1232(c)(2)(B), which requires that such immigrants “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... with an individual or an organizational sponsor, or in a supervised group home.” Id. (emphasis added).
86. ICE’s disregard of Section 1232(c)(2)(B)’s requirements violates the APA in that ICE’s actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” 5 U.S.C. § 706(2)(A), and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” 5 U.S.C. § 706(2)(C).
COUNT II Administrative Procedure Act—5 U.S.C. § 706(1) Defendants Are Failing To Take Action They Arc Required To Take
Under 8 U.S.C. § 1232(c)(2)(B) 87. Plaintiffs reallege and incorporate the allegations of all the preceding paragraphs. 88. The Court may “compel agency action unlawfully withheld or unreasonably delayed . .. .” 8 U.S.C. § 706(1). To make a showing under Section 706(1), Plaintiffs must demonstrate “that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis omitted). 89. Section 1232(c)(2)(B) sets out two discrete, nondiscretionary actions that ICE is required to take with regard to all 18 year-olds transferred into its custody from ORR. First, ICE must “consider placement in the least restrictive setting.” 8 U.S.C. § 1232(c)(2)(B). Second, ICE “shall” make 18 year-olds “eligible to participate in alternative to detention programs, utilizing a
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continuum of alternatives based on the alien’s need for supervision, which may include placement.., with an individual or an organizational sponsor, or in a supervised group home.” Id.
90. As explained above, ICE has not taken, and is not taking, either of these statutorilyrequired actions.
91. Accordingly, Plaintiffs seek a court order under 5 U.S.C. § 706(1) compelling ICE to take the actions it is required to take pursuant to Section 1232(c)(2)(B).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court: A. Assume jurisdiction over this matter; B. Certify a class of unaccompanied immigrant children who have been transferred to ICE because they have turned 18, as defined in Paragraph 65 above; C. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure; D. Declare that ICE’s failure to place Plaintiffs and members of the class 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); E. Declare that ICE’s failure to make “alternative to detention programs” available to Plaintiffs and members of the class violates 8 U.S.C. § 1232(c)(2)(B) and 5 U.S.C. §§ 706(1) and 706(2); F. Order that ICE comply with 8 U.S.C. § 1232(c)(2)(B) by considering Plaintiffs and members of the class for, and placing them in, the last restrictive setting available after taking into account each individual’s danger to self, danger to community, and risk of flight; G. Order that ICE comply with 8 U.S.C. § 1232(c)(2)(B) by allowing Plaintiffs and members of the class to participate in alternative to detention programs utilizing a continuum, of
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alternatives based on tlieir need for supervision, including placement with an individual or

organizational sponsor, or in a supervised group home;

H. Award Plaintiffs their attorneys’ fees and costs; and

I. Grant such other and further relief as the^Court deems equitable, just, and proper.

Dated: March 5,2018

i ta lTTrDut D.C. Bar No. 990447 Kirkland & Ellis LLP 655 Fifteenth St., NW Washington, DC 20005 Tel.: (202) 879-5000 Fax: (202) 879-5200 tia.trout-perez@kirkland.com

Stephen R. Patton Anne K.H. Reser Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Tel: (312) 862-2000 Fax: (312) 862-2200 stephen.patton@kirkland.com anne.reser@kirkland.com

Katherine Melloy Goettel National Immigrant Justice Center 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1335 Fax: (312) 660-1505 kgoettel@heartlandalliance.org

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 Case 1:18-cv-00508-RC Document 28 Filed 04/18/18 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILMER GARCIA RAMIREZ, et al., Plaintiffs. v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Defendants.

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Civil Action No.: 18-508 (RC)

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Re Document No.: 2

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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

Case 1:18-cv-00508-RC Document 28 Filed 04/18/18 Page 2 of 42
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.

Case 1:18-cv-00508-RC Document 28 Filed 04/18/18 Page 3 of 42
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.

Case 1:18-cv-00508-RC Document 28 Filed 04/18/18 Page 4 of 42
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

Case 1:18-cv-00508-RC Document 28 Filed 04/18/18 Page 5 of 42
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

Case 1:18-cv-00508-RC Document 28 Filed 04/18/18 Page 6 of 42
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.

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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.

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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

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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 &

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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

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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

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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

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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. §§

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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.

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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.

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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.

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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.

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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

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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

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‘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.

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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

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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.

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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

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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

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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

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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

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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

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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.

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[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

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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

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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.

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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

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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 shelter7 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

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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.

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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)] decisionmaking 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

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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

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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

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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 nondetention.” 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.

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(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.

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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).

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*** 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

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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

 
 Case 1:18-cv-00508-RC Document 50 Filed 08/30/18 Page 1 of 69

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILMER GARCIA RAMIREZ, et al., Plaintiffs. v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Defendants.

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Civil Action No.: 18-508 (RC)

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Re Document Nos.: 6, 36

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MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT; GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION Plaintiffs—three immigrants teenagers who entered the United States as unaccompanied alien children—bring this putative class action against Immigration and Customs Enforcement (“ICE”), the Acting Director of ICE, the Department of Homeland Security (“DHS”), and the Secretary of Homeland Security. They allege 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. At an earlier stage of this litigation, this Court granted a motion for preliminary injunction filed on behalf of Plaintiffs Wilmer Garcia Ramirez and Sulma Hernandez Alfaro. See generally Ramirez v. ICE, 310 F. Supp. 3d 7 (D.D.C. 2018). Finding that Mr. Garcia Ramirez and Ms. Hernandez Alfaro had shown that they were likely to succeed on the merits of their claim that ICE had not complied with 8 U.S.C. § 1232(c)(2)(B) in placing them, that they

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would suffer irreparable harm absent injunctive relief, and that both a balancing of the equities and public interest considerations favored Plaintiffs, the Court ordered Defendants to comply with 8 U.S.C. § 1232(c)(2)(B) in placing Mr. Garcia Ramirez and Ms. Hernandez Alfaro. See id. at 25–34. Now before the Court are Defendants’ motion to dismiss Plaintiffs’ complaint—a filing that largely retreads ground tentatively resolved at the preliminary injunction stage—and Plaintiffs’ motion for class certification. For the reasons explained below, the Court denies Defendants’ motion to dismiss and grants Plaintiffs’ motion for class certification.
II. BACKGROUND A. Statutory and Regulatory Framework Most immigration enforcement functions are carried out by DHS, in which ICE is housed. See 6 U.S.C. §§ 111, 251, 291; 8 U.S.C. § 1103(a)(1). 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”). See 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).
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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
Plaintiffs in this case are three immigrant teenagers who were previously held in ORR
custody as unaccompanied alien children. See 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 defined as:
All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternative to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B).
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Pl.’s Mot. for Class Certification & Supp. Points of L. & Auth. ¶ 3 (“Pls.’ Mot. for Class Cert.”), ECF No. 6. This Court’s Opinion at the preliminary injunction stage of this litigation described the circumstances that led Plaintiffs Garcia Ramirez and Hernandez Alfaro to enter the United States as unaccompanied alien children and detailed the events that led up to this lawsuit. See Ramirez, 310 F. Supp. 3d at 12–16. For the sake of completeness, the Court recounts that history here. The Court also provides background details about the third named Plaintiff, Ana P., who joined this litigation after the motion for preliminary injunction had been filed and partly briefed. See id. at 12 n.1 (noting that the Court limited its consideration of Plaintiffs’ motion for preliminary injunction to Mr. Garcia Ramirez and Ms. Hernandez Alfaro); see also Docket Sheet, Civ. A. No. 18-cv-508-RC.
1. Wilmer Garcia Ramirez According to Plaintiffs’ complaint, Wilmer Garcia Ramirez was born into poverty in Guatemala in 1999. See First Am. Compl. ¶¶ 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 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
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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; Notice of Action, Ex. B, ECF No. 23. That petition remained pending at the time that this lawsuit was filed. 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 an SIJS petition. See Email from Noriana C. Hermes (Sept. 22, 2017), Ex. D at 7, 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), Ex. D at 9, 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, Ex. E, ECF No. 205. 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
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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 Hr’g, Ex. E at 9–12, ECF No. 20-5. A bond hearing was scheduled. See Notice of Custody Redetermination Hr’g 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 Hr’g, Ex. E at 15, ECF No. 205.
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. During 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
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alternatives to detention with him at any time before or after Mr. Garcia Ramirez’s eighteenth birthday. Allende-Asparó Decl. ¶ 5. Mr. Garcia Ramirez remained detained at EDC when this lawsuit was initiated in March 2018. See First Am. Compl. ¶ 38.
2. Sulma Hernandez Alfaro Sulma Hernandez Alfaro 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. See 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. 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 remained pending when this lawsuit was filed in March 2018. 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 from Deportation Officer (Jan. 15, 2018), Ex. B at 9, ECF No. 20-2. A case manager for the shelter
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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. See Email (Jan. 16, 2018), Ex. B at 8, ECF No. 20-2; see also Decl. of Jose Cortez (“Cortez Decl.”) ¶ 20, Ex. B, 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 10–11, 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 determine 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 at which she had lived 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”), Ex. H at 2–4, ECF No. 2-9; Decl. of Rosemary Gonzalez (“Gonzalez Decl.”) ¶ 7, Ex. B, ECF No. 23-2. The
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letter mentioned the special statutory protections afforded to 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 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), Ex. I, 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.”) ¶¶ 6–7, Ex. A, 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 child upon her arrival in the United States, 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
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no indication that he had independently considered any less restrictive placements than adult detention for Ms. Hernandez Alfaro. See 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 remained detained at PIDC at the time that this suit was filed in March 2018. See First Am. Compl. ¶ 14.
3. Ana P. Ana P. was born in 2000 in El Paraiso, a town in the department of Sonsonate, El Salvador. See First Am. Compl. ¶ 53. At age fifteen, she bore a child. See id. ¶ 55. Strained financially and in need of a job to support her child, Ana secured employment in a neighboring town. See id. ¶ 57. On her way home from work one day, Ana contends that she was stopped by
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two masked gang members, who demanded money from her. Id. ¶ 58. After Ana told them that she had no money to give, they purportedly ordered her not to return to the area and threatened her with death if she did so. See id. Seeking to avoid the violence in El Salvador, Ana and her child travelled by bus to the United States in January 2018. See id. ¶ 60. After the pair entered the country at a port of entry, U.S. Customs agents determined that both Ana and her child were unaccompanied alien children. See id. ¶ 61. Both mother and child were transferred to ORR custody and placed in a shelter in New York. See id.
According to Ana, on her eighteenth birthday in February 2018, she was told to report to a government office at 5 a.m. See id. ¶ 62. Officials told her not to bring her child. See id. When Ana arrived at the office, two ICE officers arrested her and transferred her to the Bergen County Jail. See id. Ana contends that, at the time that she joined this lawsuit in late March 2018, she had not seen or talked to her child since her transfer to an adult detention facility. See id. ¶ 63.
Like the other two named Plaintiffs, Ana sought to change her state of confinement. On March 15, 2018, she submitted a request for release on humanitarian parole under 8 U.S.C. § 1182(d)(5). See id. ¶ 66. That request was pending when Ana joined this lawsuit. See id. Ana also identified a willing sponsor for her and her child: friends of her child’s father’s family who live in Texas and who Ana met in 2017. See id. ¶ 65. According to Plaintiffs’ complaint, Ana had submitted the necessary paperwork to ORR and preparations for her release to the proposed sponsor had been underway when she turned eighteen. See id.
Defendants supply a declaration from Supervisory Detention and Deportation Officer Linda Hyde, who contends that she made the custody determination for Ana P. when she was transferred out of an ORR facility and into ICE custody. See Decl. of Linda Hyde (“Hyde
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Decl.”) ¶ 1–2, Ex. B, ECF No. 31-2. According to Officer Hyde, ORR contacted her on the afternoon before Ana’s eighteenth birthday, stating that Ana would need to be transferred out of ORR’s care. See id. ¶ 3. ORR informed Officer Hyde that it had declined to release Ana and her child to a proposed sponsor due to a host of concerns about that potential placement. See id. (listing concerns about, among other things, the lack of a preexisting relationship between Ana and the proposed sponsor and an “observed pattern” of the potential sponsor allowing former unaccompanied minors to leave his care after they turned eighteen). In response to that communication, Officer Hyde instructed ORR to “please go ahead, [and] release” Ana and her child, if ORR had located a different, suitable sponsor. See id. ¶ 4; see also Email from Linda Hyde (Feb. 16, 2018) (“Hyde Email”) at 9, Ex. B, ECF No. 31-2. Officer Hyde noted that if ORR had not located a viable sponsor, Ana P. would be transferred to an adult detention facility and the child would remain in ORR’s care. See Hyde Decl. ¶ 4; Hyde Email at 9.
According to Officer Hyde, based on her review of initial communications with and the facts provided by ORR, she concluded that releasing Ana to the proposed sponsor was not appropriate and, at that time, she was “unaware” of any halfway house or shelter that might accept Ana. Hyde Decl. ¶ 4. Given that Ana had no suitable fixed address and no family connections in the United States, Officer Hyde concluded that she posed a significant flight risk and that she was not eligible to participate in alternative to detention programs. Id. ¶ 5. Officer Hyde states that she could not identify other appropriate, viable measures that could alleviate Ana’s risk of flight while also ensuring her safety. Id. After considering that Ana had no criminal record or history of violence and that she did not appear to be a danger to herself or to others, Officer Hyde concluded that Ana should be transferred to an adult detention facility. Id.
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Given Ana’s lack of criminal history and the fact that she did not appear to be dangerous, DHS housed her in the least restrictive detention setting at Bergen County Jail. Id. ¶ 6.
C. Procedural History Plaintiffs Garcia Ramirez and Hernandez Alfaro filed this putative class action in March 2018, contending that ICE had not complied with 8 U.S.C. § 1232(c)(2)(B) in placing them and asserting that ICE systematically fails to abide by this statutory provision in placing former unaccompanied minors who age out of ORR’s jurisdiction. See generally Compl., ECF No. 1. Shortly after, Mr. Garcia Ramirez and Ms. Hernandez Alfaro asked this Court to enter a temporary restraining order and preliminary injunction ordering ICE to comply with the statutory provision. See Mot. Temp. Restraining Ord. & 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 Ord. Mot. Hr’g (Mar. 8, 2018) at 37:1–9, ECF No. 19. The Court noted that it would consider Plaintiffs’ motion for preliminary injunction—but only as to the two named Plaintiffs rather than as to the entire proposed class—after the parties had investigated and fully briefed the request. See Tr. of Temp. Restraining Ord. Mot. Hr’g (Mar. 8, 2018) at 37:11–19, ECF No. 19. After the Government submitted its opposition to Plaintiffs’ request for injunctive relief, Plaintiffs filed an amended complaint, which added Ana P. to this action as a named Plaintiff. See Am. Compl., ECF No. 21. On April 18, 2018, this Court granted Plaintiffs Garcia Ramirez and Hernandez Alfaro’s motion for preliminary injunction. See Ramirez v. ICE, 310 F. Supp. 3d 7, 34 (D.D.C. 2018). In doing so, the Court first rejected Defendants’ arguments that several justiciability barriers
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precluded the Court from granting the requested relief. See id. at 17–25. Specifically, the Court disagreed with Defendants’ contentions that this lawsuit was moot at the time that it was filed, that Plaintiffs had not identified a “final agency action” subject to judicial review under the Administrative Procedure Act, and that Plaintiffs had an adequate alternative remedy in the form of bond hearings through which they could seek relief for their purported injuries. See id. In assessing the merits of Plaintiffs’ request for preliminary injunction, the Court found that Plaintiffs Garcia Ramirez and Hernandez Alfaro were likely to succeed in showing that DHS had not complied with 8 U.S.C. § 1232(c)(2)(B) in placing them, that Plaintiffs had shown that they would suffer irreparable harm in the absence of a preliminary injunction, and that both a balancing of the equities and public interest considerations favored Plaintiffs. See id. at 25–34. The Court ordered Defendants to comply with 8 U.S.C. § 1232(c)(2)(B) in placing Mr. Garcia Ramirez and Ms. Hernandez Alfaro. Id. at 34. In addition, the Court required Defendants to memorialize their assessments to allow the Court to determine whether the agency had considered the factors required by statute. See id.
On May 2, 2018, Defendants responded to the Court’s Order, appending declarations from the ICE Officers charged with considering the relevant statutory factors and with placing Plaintiffs Garcia Ramirez and Hernandez Alfaro. See Defs.’ Resp. to the Court’s Ord. of Apr. 18, 2018 to Comply with 8 U.S.C. § 1232(c)(2)(B) with Regard to Two Named Plaintiffs, ECF No. 30. The first declaration memorialized the process of determining a placement for Ms. Hernandez Alfaro. See Decl. Jose A. Cortez, Ex. A, ECF No. 30-1. According to Officer Jose A. Cortez, ICE first attempted to identify potential individual and organizational sponsors who could provide a fixed, stable address and who could financially support Ms. Hernandez Alfaro. See id. ¶ 3. ICE identified five such potential sponsors, see id. ¶¶ 5, 7, 9, 11, 13, however, it
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concluded that none of the options were viable sponsors for a host of reasons. See id. ¶¶ 6 (finding the first potential sponsor unviable due to unavailability and the potential sponsor’s own risk of flight), 8 (finding the second potential sponsor unavailable), 10 (finding that a third potential sponsor could not be located), 12 (determining that a fourth potential sponsor likely would not provide sufficient oversight or accountability to reduce Plaintiff’s risk of absconding), 15–16 (finding a sixth potential sponsor unviable due to her attenuated relationship with Plaintiff and her inability to financially support Plaintiff). According to Officer Cortez, ICE also considered enrolling Ms. Hernandez Alfaro in an alternative-to-detention program. See id. ¶ 18. However, it determined that she did not qualify for such a program because she lacked a sponsor and a valid sponsor’s residential address. See id. In Officer Cortez’s declaration, he described ICE’s determinations regarding Ms. Hernandez Alfaro’s risk of flight, danger to self, and danger to others. See id. ¶¶ 19–23. According to Officer Cortez, ICE regarded Ms. Hernandez Alfaro as a significant flight risk because she lacked lawful immigration status, had minimal family and community ties, failed to provide a reliable fixed address in the United States, had no prior residence in the United States, and entered the United States without inspection by an immigration officer. Id. ¶ 19. ICE did not regard Ms. Hernandez as a danger to herself or to others. Id. ¶ 20.
Based on Officer Cortez’s assessment, he concluded that Ms. Hernandez Alfaro should remain in ICE custody. See id. ¶ 21. On April 25, 2018, after evaluating Ms. Hernandez Alfaro based on federal detention standards, ICE determined that she should remain classified as Level 1-Low Custody and, accordingly, that she should continue to be housed in the least restrictive housing unit available in an adult detention facility. See id. ¶ 25. Ms. Hernandez Alfaro ultimately remained detained for only a short time longer, though. See id. ¶ 26. On April 30,
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2018, the United States Citizenship and Immigration Service provided a copy to ICE of its decision granting Ms. Hernandez Alfaro legal immigration status in the United States. See id. Because Ms. Hernandez Alfaro was no longer subject to removal, she was released from ICE custody. See id.
The second declaration submitted by Defendants memorialized ICE Officer Andrew Swierski’s consideration of the statutory factors outlined at 8 U.S.C. § 1232(c)(2)(B) and his determination of a placement for Mr. Garcia Ramirez. See Decl. of Andrew Swierski, Ex. B, ECF No. 30-2. First, Officer Swierski explained that there was no evidence to suggest that Mr. Garcia Ramirez—who has no known criminal record and had no record of disciplinary infractions while in ICE detention—would pose a danger to himself or to the community. See id. ¶ 7. Next, Officer Swierski found that, because Mr. Garcia Ramirez had entered the United States without proper documentation and had limited family and community ties in the United States, he posed a risk of flight. See id. ¶ 8. In light of these findings, Officer Swierski next considered Mr. Garcia Ramirez for ICE’s alternative-to-detention programs, which would permit Mr. Garcia Ramirez to be released on his own recognizance subject to certain conditions. See id. ¶ 9.
According to his declaration, Officer Swierski considered a handful of possible release conditions. See id. ¶ 10. First, he considered releasing Mr. Garcia Ramirez subject only to periodic reporting. See id. Officer Swierski rejected this possibility, however, because Mr. Garcia Ramirez had no significant community or family ties, no place of employment in the United States, and had not lived in the United States for a long period of time. See id. The officer reasoned that periodic reporting would not sufficiently mitigate Mr. Garcia Ramirez’s risk of flight. See id. Next, Officer Swierski considered releasing Mr. Garcia Ramirez with both
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periodic reporting and ankle monitoring conditions. See id. ¶ 11. Officer Swierski regarded this option as the least restrictive placement available for Mr. Garcia Ramirez, and concluded that the combination of these two conditions would adequately alleviate Mr. Garcia Ramirez’s risk of flight. See id. Officer Swierski then considered additional placement options: release to an organizational sponsor or supervised group home and release on bond. See id. ¶¶ 12–13. Officer Swierski rejected these options, though, because he did not know of a viable organization or group home to which to release Mr. Garcia Ramirez and because he reasoned that, compared with the viable option of release subject to reporting and ankle monitoring, release under bond would be more restrictive. See id. In light of Officer Swierski’s analysis, on April 27, 2018, DHS released Mr. Garcia Ramirez on his own recognizance subject to ankle monitoring and periodic reporting. See id. ¶ 14.
Unrelated to the Court’s order, Ana P.’s status has also changed since the Court granted Plaintiffs’ motion for preliminary injunction. See Pls.’ Reply Supp. Mot. for Class Cert. at 7, ECF No. 37; Letter from Thomas Decker to Ana P. (May 11, 2018) (“Decker Letter”), Ex. 1, ECF No. 37-2. On May 11, 2018, Ana P. was granted humanitarian parole and released from detention pending the outcome of her immigration proceedings. See Decker Letter.
Now before the Court are Defendants’ motion to dismiss Plaintiffs’ complaint and Plaintiffs’ motion for class certification. See Defs.’ Mot. to Dismiss Pls.’ Am. Compl. (“Defs.’ Mot. to Dismiss”), ECF No. 36; Pls.’ Mot. for Class Cert., ECF No. 6. Both motions are ripe for the Court’s consideration.
III. ANALYSIS In this putative class action, Plaintiffs assert that when they turned eighteen years old and were transferred from HHS custody to DHS custody, DHS placed them in adult detention
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facilities without considering less restrictive placements in violation of 8 U.S.C. § 1232(c)(2)(B). They also contend that DHS routinely and systematically fails to abide by this statutory provision. Presently before the Court are Defendants’ motion to dismiss and Plaintiffs’ motion for class certification. For the reasons explained below, the Court denies Defendants’ motion to dismiss and grants Plaintiffs’ motion for class certification.
A. Defendants’ Motion to Dismiss The Court first considers Defendants’ motion to dismiss Plaintiffs’ complaint, which argues that (1) Plaintiffs lack standing to bring their claims, (2) Plaintiffs’ claims are moot, (3) Plaintiffs may not properly bring their claims under the Administrative Procedure Act, and (4) Plaintiffs have failed to state any claims upon which relief may be granted. Disagreeing on all fronts, this Court denies Defendants’ motion to dismiss.1
1. Legal Standards a. Federal Rules of Civil Procedure 12(b)(1) “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only the power authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, because “[w]ithout jurisdiction the court cannot proceed at all in any cause,” see Ex parte McCardle, 74 U.S. (7
1 Several of Defendants’ arguments for dismissal retread ground covered at the preliminary injunction stage of this litigation. See Ramirez, 310 F. Supp. 3d at 17–25 (rejecting arguments that Plaintiffs’ claims were moot when this action was filed; that Plaintiffs had not identified a final agency action subject to judicial review; and that bond hearings before immigration judges served as an adequate remedy for Plaintiffs, thus precluding this Court’s review of Plaintiffs’ claim). Because “[i]ssues litigated in a preliminary injunction action ‘are not . . . law of the case,’” Massey v. Am. Fed’n of Gov’t Emps., 253 F. Supp. 3d 42, 51 (D.D.C. 2017) (quoting Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 56 (D.C. Cir. 1984)), the Court does not regard its prior determinations as binding for purposes of assessing Defendants’ Motion to Dismiss. Rather, as explained below, the Court finds dismissal unwarranted based on consideration of the record and arguments presently before the Court.
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Wall.) 506, 514 (1868), “[f]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction,” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges whether a court is authorized to consider the claims presented in a lawsuit. See Fed. R. Civ. P. 12(b)(1). In assessing such a motion, a court must “presume[] that a cause lies outside [its] limited jurisdiction, and the burden on establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377 (citations omitted). However, a court “assume[s] the truth of all material factual allegations in the complaint,” and must “‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Nevertheless, a court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must a court accept plaintiff’s legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject matter jurisdiction, a court may look to materials outside of the pleadings, where appropriate. See Am. Freedom L. Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016).
b. Federal Rule of Civil Procedure 12(b)(6) The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate likelihood of success
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on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25, 28–29 (D.D.C. 2010).
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555.
2. Issues a. Standing Defendants first challenge whether Plaintiffs have standing to bring this lawsuit. See Defs.’ Mot. to Dismiss at 7–18. “[T]he question of standing in federal courts is to be considered in the framework of Article III which restricts judicial power to ‘cases’ and ‘controversies.’”
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Assoc. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151 (1970). To establish Article III standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). As “[t]he party invoking federal jurisdiction,” plaintiff “bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1997). In the class action context, a court’s standing inquiry focuses squarely on the class representatives. See O’Shea v. Littleton, 414 U.S. 488, 488 (1974). “[W]hen considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim.” Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007). And, at the motion to dismiss stage, “general factual allegations” supporting injury-in-fact, causation, and redressability suffice to establish standing. See Lujan, 504 U.S. at 561. Contrary to Defendants’ assertions, the Court finds that Plaintiffs satisfy all three elements of standing.
i. Injury in Fact “To establish injury-in-fact,”—the first element of standing—“a plaintiff must show that he or she suffered [(1)] ‘an invasion of a legally protected interest’ that is [(2)] ‘concrete and particularized’ and [(3)] ‘actual or imminent.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). Defendants contend that Plaintiffs have not met these requirements. See Defs.’ Mot. to Dismiss at 8–14. Specifically, Defendants maintain that because Mr. Garcia Ramirez and Ms. Hernandez Alfaro were deemed flight risks and because Ana P. was subject to mandatory detention pursuant to 8 U.S.C. § 1225(b), Plaintiffs were not entitled to any further consideration under 8 U.S.C. § 1232(c)(2)(B). See id. at 9–11. In addition, Defendants argue that, even if Plaintiffs were entitled to additional consideration under 8 U.S.C. § 1232(c)(2)(B),
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they have still failed to allege injury to any legally protected interest because the ultimate decision of where to place each of them is left to the discretion of the agency and is not reviewable by this Court. See id. at 11–12. The Court concludes that Plaintiffs have alleged a cognizable injury in fact.
First, Plaintiffs have alleged injuries to their own legally protected interests. The D.C. Circuit has explained that an interest is legally protected for standing purposes if it is cognizable. See Parker, 478 F.3d at 377 (“[I]n Lujan . . . , when the Supreme Court used the phrase ‘legally protected interest’ as an element of injury-in-fact, it made clear it was referring only to a ‘cognizable interest.’”); see also Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359, 363–66 (D.C. Cir. 2005) (Williams, J., concurring) (illuminating “puzzlement over the meaning of Lujan[’s] requirement that for ‘injury in fact,’ the plaintiff must show ‘invasion of a legally protected interest . . . .’” and writing in support of the view that an interest satisfies the requirement if it is cognizable (quoting Lujan, 504 U.S. at 363)). Cognizable interests run the gamut, ranging from purported injuries to economic interests, see, e.g., Clinton v. City of N.Y., 524 U.S. 417, 432 (1998), to injuries to noneconomic interests in, for example, the enjoyment of the esthetic beauty of nature, see, e.g., Lujan, 504 U.S. at 562–63 (declaring that “[o]f course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing”). Importantly, the Supreme Court has recognized that “Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of the statute.” Warth v. Seldin, 422 U.S. 490, 514 (1975); see also Spokeo, 136 S. Ct. at 1549 (acknowledging “Congress’ role in identifying and elevating intangible harms”).
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Whether a plaintiff has asserted a cognizable claim for purposes of standing does not turn on whether plaintiff’s claim has merit. See Parker, 478 F.3d at 376–77 (labelling “doctrinally quite unsound” the Ninth Circuit’s approach of beginning standing analysis by considering whether a statutory provision provides plaintiff with an individual right and explaining that “when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim”). Instead, a court must ask whether the injury asserted by plaintiff is “the sort of interest that the law protects when it is wrongfully invaded.” Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018, 1024 (7th Cir. 2006). Compare, e.g., Lujan, 504 U.S. at 562–63 (finding that plaintiffs’ desire to observe animal species for “purely esthetic purposes” would have sufficed as a legally protected interest) with, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).
Here, Plaintiffs contend that, by enacting 8 U.S.C. § 1232(c)(2)(B), Congress conferred on all former unaccompanied alien children who have been transferred from the custody of ORR to the custody of DHS (including Plaintiffs) the right to have the Secretary of DHS “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.” See Am. Compl. ¶¶ 3–4, 99–101. Plaintiffs further assert that the statute makes such immigrants “eligible to participate in alternative to detention programs.” See id. According to Plaintiffs, Defendants’ inaction—the purported failure to consider them for the least restrictive setting available and to make them eligible for alternative to detention programs as required by statute—invaded their legally protected interests. See id. Plaintiffs insist that they “do not complain about, or seek, release from detention (or any other outcome) in individual immigration cases.” Pls.’ Opp’n to Mot. to
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Dismiss at 6. “Rather, they complain about ICE’s systematic and widespread failure to comply with Section 1232 in making those individual placement decisions.” Id.2
Plaintiffs’ asserted injury—in essence, that they have suffered due to the loss of the opportunity to be considered for a type of benefit or relief for which Congress made them eligible—is the type of injury that courts in this jurisdiction have recognized as cognizable for purposes of standing. Indeed, Judge Boasberg recently addressed the same issue in a case quite like this one. See Nat’l Venture Capital Ass’n v. Duke, 291 F. Supp. 3d 5 (D.D.C. 2017). In National Venture Capital Association v. Duke, foreign entrepreneurs challenged DHS’s decision to delay the implementation of an immigration rule that would have permitted certain foreign entrepreneurs to obtain immigration parole, arguing that the agency had promulgated the delay rule without abiding the APA’s strictures. See id. at 8. The agency contended, among other things, that the plaintiffs lacked standing to sue because “parole is an immigration action granted at the sole discretion of DHS, and aliens have no legally protected interest in a discretionary immigration determination.” Id. at 13 (internal quotation marks omitted) (quoting Opp. at 20). The agency likewise asserted that no action from the court could redress plaintiffs’ purported injuries because they needed “a favorable exercise of DHS discretion,” as well as a favorable inspection, to benefit from the planned immigration rule. Id. at 13 (quoting Opp. at 18).
2 One aspect of Plaintiffs’ complaint does not quite align with this characterization of their purported injuries and the relief that they seek in this case. Among Plaintiffs’ “prayer[s] for relief” is a request that this Court “[d]eclare that ICE’s failure to place Plaintiffs and members of the class 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).” Am. Compl. at 23. As it appears that Plaintiffs have abandoned arguments that they—or other members of the putative class—were entitled to any particular placement, see Pls.’ Opp’n to Mot. to Dismiss at 6, the Court need not linger on whether Plaintiffs have established standing to pursue this relief.
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Judge Boasberg rejected these arguments, explaining first that the Government had “fail[ed] to engage with Plaintiffs’ actual asserted injury: the lost opportunity to obtain parole status.” Id. Citing CC Distributors, Inc. v. United States, 883 F.2d 146 (D.C. Cir. 1989), and other cases, Judge Boasberg observed that courts in this district have regarded the loss of the opportunity to obtain a discretionary benefit as a cognizable injury for standing purposes. See Nat’l Venture Capital Ass’n, 291 F. Supp. 3d at 13. Furthermore, Judge Boasberg noted that “[a]lthough the D.C. Circuit has not considered whether a ‘lost opportunity’ qualifies as a cognizable injury in the immigration context, other courts of appeals have unanimously concluded that it does.” Id. at 13–14 (citing cases). For standing purposes, it did not matter that DHS might deny parole or that the Court could not review any such denial; plaintiffs’ “claim that they ha[d] lost even the opportunity to obtain that immigration benefit” sufficed to establish a cognizable injury. Id. at 14; cf., e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (concluding that an applicant for admission had standing to challenge a university’s affirmative action admissions program even though the applicant “had been unable to prove that he would have been admitted in the absence of the special program”); CC Distribs., Inc., 883 F.2d at 150 (“[A] plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit . . . even though the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded the lost opportunity”); Nat’l Habor GP, LLC v. Gov’t of Dist. of Columbia, 121 F. Supp. 3d 11, 12, 18 (D.D.C. 2015) (concluding that a company had standing to bring claims alleging that the District of Columbia “deprived it of [a] fair chance” to compete for a contract to provide certain government services). Finding this
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reasoning persuasive, this Court concludes that Plaintiffs have identified cognizable injuries in
the form of the loss of opportunity for consideration guaranteed by statute.3
Second, Plaintiffs have asserted injuries that are “concrete” and “particularized,”
satisfying the next components of injury in fact. These requirements ensure that “the party
seeking review [is] himself among the injured.” Lujan, 504 U.S. at 563. “For an injury to be
‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.” Spokeo, Inc., 136
3 Plaintiffs’ substantive interest in “opportunity” is not the only interest at play. The Court also construes Plaintiffs’ complaint as alleging a procedural injury and finds that such allegations are also sufficient to establish standing, at least at this stage of the litigation. Cf. Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 474, 479 (D.C. Cir. 2009) (assessing plaintiffs’ standing under a procedural standing theory where statutory rights at issue were “essentially procedural in character” (internal quotation marks and citation omitted)). As the Supreme Court explained in Lujan v. Defenders of Wildlife, a plaintiff may have standing to bring a claim concerning a procedural injury if the plaintiff can show that an agency failed to abide by a procedural requirement that was “designed to protect some threatened concrete interest” of the plaintiff. Lujan, 504 U.S. at 573 n.8. However, allegations of “a bare procedural violation” do not suffice. See Spokeo, 136 S. Ct. at 1549–50. Instead, the alleged procedural injury “must be tethered to some concrete interest adversely affected by the procedural deprivation.” WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013). Importantly, “[a] plaintiff who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.” Sugar Cane Growers Coop v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002).
Here, Plaintiffs allege that Defendants failed to follow procedures mandated by 8 U.S.C. § 1232(c)(2)(B)—namely, according to Plaintiffs, Defendants did not assess each Plaintiffs’ danger to self, danger to community, and risk of flight and did not then consider each Plaintiff for placement in the least restrictive setting available. See Am. Compl. ¶¶ 98–101. Plaintiffs’ complaint asserts that Congress enacted Section 1232(c)(2)(B) to extend protections to a certain group—unaccompanied immigrant children who turned 18 and were transferred by ORR to the custody of ICE—based on Congress’s judgment that kneejerk placement of former unaccompanied minors into adult detention facilities is inappropriate and injurious to those young adults. See Am. Compl. ¶¶ 3, 74, 80. And Plaintiffs have alleged real harm flowing from the alleged procedural violations. Specifically, according to Plaintiffs, “[i]n many, if not most, cases [DHS’s] failure [to comply with Section 1232(c)(2)(B)] in turn also results in ICE detaining the former [unaccompanied minor] in adult detention for weeks or months when they should have been placed with a sponsor, in a shelter or group home or some other less restrictive setting.” Pls.’ Opp’n to Mot. To Dismiss at 5. At least at this early stage of this litigation, these contentions suffice to establish Plaintiffs’ standing to assert claims based on procedural injuries.
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S. Ct. at 1548. Accordingly, “a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Lujan, 504 U.S. at 573–74; see also, e.g., Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (concluding that plaintiffs who failed to show any injury to “a particular right of their own, as distinguished from the public’s interest in the administration of the law” lacked standing). To be concrete, the “injury must be ‘de facto’; that is, it must actually exist.” Id. (citing Black’s Law Dictionary 479 (9th ed. 2009)). Stated otherwise, “[a] concrete injury is ‘direct, real, and palpable—not abstract.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015). This does not, however, mean that an injury must be tangible, as it is well established that Congress may “identif[y] and elevat[e] intangible harms” to the status of legally cognizable injury. Spokeo, Inc., 136 S. Ct. at 1549; see also, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (“[A] person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact.”); Schnitzler v. United States, 761 F.3d 33, 40 (D.C. Cir. 2014) (prisoner had sufficiently alleged injury in fact for standing purposes by alleging that he was “being required to continue his association with the United States against his wishes.”).
Plaintiffs contend that Defendants failed to consider each of them for placement in the least restrictive placement available as required by 8 U.S.C. § 1232(c)(2)(B). See Am. Compl. ¶¶ 40, 52, 67. These allegations concern personal and individual injuries purportedly suffered by each Plaintiff, thus, they are particularized. Furthermore, the Court concludes that Plaintiffs’ alleged injury—the loss of the opportunity for consideration guaranteed by statute—is
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sufficiently concrete to establish standing. Assuming the truth of Plaintiffs’ allegations that
Defendants failed to consider them for less restrictive placements—instead sending them straight
to adult detention facilities despite Congress’s explicit mandate—the Court has little difficulty
concluding that Plaintiffs’ injuries are not abstract, but direct, real, and palpable. Cf., e.g., Patel
v. USCIS, 732 F.3d 633, 638 (6th Cir. 2013) (concluding that plaintiff’s loss of “a significant
opportunity to receive an immigrant visa” due to agency’s purported arbitrary denial of his
request “is itself a concrete injury”); Nat’l Venture Capital Ass’n, 291 F. Supp. 3d at 14
(explaining that “[g]iven that [plaintiffs] meet the criteria” to be considered for an immigration
benefit, the “claim that they have lost even the opportunity to obtain that immigration benefit” “would be far from illusory” (internal quotation marks and citation omitted)).4
Finally, Plaintiffs must show that their alleged injuries are “actual or imminent, not
conjectural or hypothetical” to establish that they have suffered an injury in fact. See Lujan, 504
U.S. at 560. At the motion to dismiss stage, “general factual allegations of injury resulting from
the defendant’s conduct may suffice.” Lujan, 504 U.S. at 561. However, the complaint must
still “clearly and specifically set forth facts sufficient to satisfy” Article III. Whitmore v.
4 Though the Court is mindful that, at the pleading stage, the standing inquiry is concerned with the presence of injury, causation, and redressability at the time that a complaint was filed, it bears mentioning that events since the Court granted Plaintiffs’ motion for preliminary injunction perhaps best illustrate how real, palpable, and direct the purported loss of opportunity was for Plaintiffs. After this Court ordered DHS to provide Plaintiffs Garcia Ramirez and Hernandez Alfaro with the consideration required by 8 U.S.C. § 1232(c)(2)(B), the agency contacted potential sponsors, explored alternative-to-detention options, and, based on its analysis, released Mr. Garcia Ramirez on his own recognizance subject to reporting and ankle monitoring. See Decl. of Andrew Swierski ¶¶ 10–14, Ex. B, ECF No. 30-2. Nowhere in the agency’s submissions to this Court is there any hint that the information used to make that determination would not have been available to or used by the agency at the time that it first placed Mr. Garcia Ramirez in a detention facility or at the time that it refused his requests for consideration. That DHS’s “consideration” resulted in one Plaintiff’s release from a detention facility hardly squares with Defendants’ suggestion that Plaintiffs are harmed in only abstract ways by the denial of consideration.
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Arkansas, 495 U.S. 149, 155 (1990). The “actual or imminent” condition bars a plaintiff from relying on a remote or speculative theory of injury. See, e.g., Lujan, 504 U.S. at 562–64 (vague plans to return to an area to view purportedly-threatened animal species were not sufficient to make the possibility of injury to plaintiffs’ esthetic interests “actual or imminent”); O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974) (finding that plaintiffs who challenged a city’s alleged pattern of violating its citizen’s civil rights without “identif[ying] [themselves] having suffered any injury in the manner specified” failed to establish that they endured an injury in fact); Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814, 821–22 (10th Cir. 1999) (climbers challenging the National Parks Service’s request that they voluntarily refrain from climbing in a park during a period in which American Indians typically used the park for religious practice had not suffered any actual or imminent injury based on the “remote and speculative possibilities” of either mandatory closure of the park or the imposition of an outright ban on climbing). In cases like this one, “where the plaintiffs seek declaratory and injunctive relief, past injuries alone are insufficient to establish standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Instead, plaintiffs “must show [they are] suffering an ongoing injury or face[] an immediate threat of injury.” Id.
According to Plaintiffs, at the time that they filed their complaint, DHS had placed each of them in adult detention facilities and had denied or failed to act on requests from each of them for consideration of placement in less restrictive environments. See Am. Compl. ¶¶ 39–40, 51– 52, 65–67. At that time, all three Plaintiffs were housed in adult detention facilities. See id. Plaintiffs supply declarations from attorneys who represented Plaintiffs Garcia Ramirez and Hernandez Alfaro that support their contentions that ICE had placed them without considering less restrictive settings and had not taken action to provide such consideration any time before
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this Court granted Plaintiffs’ motion for preliminary injunction. See Decl. of Néstor AllendeAsparó (“Allende-Asparó Decl.”) ¶¶ 1, 4–7, Ex. A, ECF No. 23-1; Decl. of Rosemary Gonzalez (“Gonzalez Decl.”) ¶¶ 1, 6–7, 10–19 Ex. B, ECF No. 23-2. The Court concludes that Plaintiffs have supplied specific facts establishing that their purported injury—the loss of the opportunity for the consideration guaranteed by 8 U.S.C. § 1232(c)(b)(2)—is actual and not merely speculative, and that it was ongoing at the time that they filed their complaint.
Defendants’ arguments that Plaintiffs have not established that they have suffered an injury in fact are unavailing. Defendants first argue that 8 U.S.C. § 1232(c)(2)(B) must be construed as mandating consideration only when DHS has concluded that a former unaccompanied minor does not pose a flight risk and is not dangerous. See Defs.’ Mot. To Dismiss. at 9–11. According to Defendants, because each named plaintiff was either deemed to pose a risk of flight or was subject to mandatory detention under 8 U.S.C. § 1225(b), none was entitled to consideration under 8 U.S.C. § 1232(c)(2)(B), thus no named plaintiff could have been injured by any alleged agency inaction. See Defs.’ Mot. to Dismiss at 9–11. Defendants argue that any other construction of the statute would “make no sense,” that alternative constructions would render meaningless statutory references to the order in which DHS is supposed to conduct its inquiry, and that a contrary reading would conflict with the broad discretionary authority Congress granted to the agency to determine whether to detain or to release an alien during removal proceedings. See id. at 9–11.
Nothing in the text or context supports Defendants’ argument that only a subset of former unaccompanied minors who were transferred to DHS custody are entitled to consideration under 8 U.S.C. § 1232(c)(2)(B). For starters, the plain text of the statute reveals no such limitation.
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Under the statutory provision, “[i]f a minor described in subparagraph (A)[5] reaches 18 years of age and is transferred to the custody of the Secretary of Homeland Security, the Secretary 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.” 8 U.S.C. § 1232(c)(2)(B). Furthermore, “[s]uch aliens shall be eligible to participate in alternative to detention programs.” Id. The only conditions for entitlement to “consider[ation]” are described in the first clause. When an individual meets these conditions—that is, when an individual is “a minor described in subparagraph (A)” who, upon turning 18, was transferred to DHS custody—the statute imposes on the Secretary of DHS a nondiscretionary duty to “consider” the least restrictive placement available for that individual. Thus, per the plain language of the provision, all who meet those conditions—regardless of the agency’s flight risk or dangerousness determinations and irrespective of the provision under which the individual has been detained—are entitled to consideration. Full stop. See Bd. of Cty. Com’rs of Kay Cty., Okla. v. Fed. Hous. Fin. Agency, 754 F.3d 1025, 1029 (D.C. Cir. 2014) (“When a statute’s language is plain, we ‘must enforce it according to its terms.’” (quoting Jimenez v. Quarterman, 555 U.S. 113, 118 (2009))).6
Resisting the plain-as-day meaning of the provision, Defendants suggest that the Court infer limitations from two parts of the statutory provision, from the broader discretionary authority typically afforded to the Executive Branch in the immigration context, or from the fact that Plaintiffs have no right under the statute to actually be placed in the least restrictive setting
5 Subparagraph (A) applies to “an unaccompanied alien child in the custody of the Secretary of Health and Human Services.”
6 Defendants suggest that, if this Court finds the statutory language ambiguous, it should defer to the agency’s interpretation consistent with Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). See Defs.’ Mot. to Dismiss at 1 n.1. Because the Court concludes that the language it not ambiguous, it has no occasion to entertain any argument that deference to the agency’s interpretation might be warranted.
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available and DHS’s judgment regarding whether such a placement is appropriate is not reviewable by this Court. See Defs.’ Mot. To Dismiss at 9–13. None of these arguments warrant more than brief discussion.
First, Defendants note that before providing the mandated consideration, the Secretary of DHS must take into account the alien’s danger to self, danger to the community, and risk of flight. See Defs.’ Mot. To Dismiss at 9. Defendants suggest that the existence of this requirement means that those deemed by the Secretary to pose a risk of flight or those deemed dangerous are not entitled to any further consideration under the statute. See id. But Congress’s stipulation that the Secretary must “tak[e] into account” certain factors before evaluating placements for each former unaccompanied minor in no way limits who is entitled to consideration. Second, Defendants posit that “[s]uch aliens” refers to some subset of former unaccompanied minors. See Defs.’ Mot. to Dismiss at 10. This interpretation, though, runs counter to basic rules of English grammar. It is plain that “[s]uch aliens” is shorthand for the “alien[s]” previously specified—that is, again, all former unaccompanied minors who have been transferred to the custody of DHS—and not to some never-mentioned subset of that group. See Webster’s Third New International Dictionary 2283 (indicating that “such” is “used to avoid repetition” and that it means “of the sort or degree previously indicated”).
Third, Defendants contend that an interpretation of Section 1232(c)(2)(B) as affording consideration to all former unaccompanied minors now in DHS custody might “undermine the broad discretionary authority conferred on the Attorney General in § 1226(a)” or might conflict with § 1225(b), which subjects certain arriving aliens to mandatory detention. See Defs.’ Mot. To Dismiss at 11. This Court is not convinced that any such conflicts exist. An interpretation of Section 1232(c)(2)(B) as extending to all former unaccompanied minors “consider[ation]” of less
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restrictive placements—which is, as explained above, the plain meaning of the provision—in no way restricts the agency’s authority to ultimately decide to detain or to release any immigrant facing removal proceedings. Furthermore, that an agency has broad authority in a realm does not give it license to ignore Congress’s specific directions or restrictions on its authority. Cf. Nat’l Venture Capital Ass’n, 291 F. Supp. 3d at 20 (noting that though “[a]gencies obviously have broad discretion to reconsider a regulation at any time . . . [t]o do so, however, [they] must comply with the Administrative Procedure Act” (internal quotation marks and citations omitted)).7
Finally, Defendants contend that Plaintiffs suffered no injury in fact because they have no statutorily or constitutionally protected right to placement in the least restrictive setting available, and DHS’s placement decisions are not reviewable by this Court. See Defs.’ Mot. to Dismiss at 12–13. But Plaintiffs could not have been clearer that they complain about DHS’s failure to consider them for less restrictive placements, and they do not assert a right to any particular placement. See Pls.’ Opp’n to Mot. to Dismiss at 6 (“Plaintiffs do not complain about, or seek, release from detention (or any other outcome) in individual immigration cases.”). Plaintiffs’ complaint clearly asserts that they have a protected interest in receiving the consideration due to them under 8 U.S.C. § 1232(c)(2)(B). See Am. Compl. ¶ 4. Defendants make the same mistake
7 It also bears mentioning that Defendants offer what appear to be inconsistent arguments regarding the treatment of Plaintiff Ana P. On the one hand, Defendants say that Ana could not have been considered for anything other than placement in an adult detention facility because she was subject to mandatory detention pursuant to § 1225(b). See Defs.’ Mot. to Dismiss at 9–10. But, on the other hand, Defendants contend that Ana was in fact considered for placement in less restrictive settings, including release to a sponsor, and a declaration submitted by an ICE Officer responsible for placing Ana suggests that she could have been released to a viable sponsor. See Email from Linda Hyde at 9, ECF No. 31-2 (instructing ORR to “please go ahead, [and] release” Ana and her child, if ORR had located a different, suitable sponsor). This further undermines Defendants’ argument that its obligations under 8 U.S.C. § 1232(c)(2)(B) might conflict with § 1225(b).
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here as the defendants in National Venture Capital Association v. Duke, 291 F. Supp. 3d 5 (D.D.C. 2017), conflating plaintiffs’ interest in the opportunity to be considered for a type of relief with a demand for that relief. See id. at 13–14. As in that case, Defendants get no points for raising a straw man then knocking it down. In short, Plaintiffs have established that they suffered an injury in fact.
ii. Causation Having determined that Plaintiffs have adequately alleged that they suffered an injury in fact, the Court next considers whether Plaintiffs have satisfied the causation requirement. “The causation element requires evidence of a substantial probability that ‘the challenged acts of the defendant’ caused their injury.” Utility Workers Union of Am. Local 464 v. Fed. Energy Reg. Comm’n, 2018 WL 3542631, at *3 (D.C. Cir. 2018). Here, Defendants contend that Plaintiffs cannot establish causation because “Plaintiffs cannot show beyond mere speculation that the alleged failure of ICE to consider least restrictive settings resulted in them being detained and not placed in such settings.” Defs.’ Mot. to Dismiss at 13. But this argument misapprehends the conduct challenged in this case. As explained above, Plaintiffs assert that DHS denied them an opportunity to be considered for less restrictive placements. See Am. Compl. ¶ 4; see also Pls.’ Opp’n to Mot. to Dismiss at 6 (“Plaintiffs do not complain about, or seek, release from detention (or any other outcome) in individual immigration cases.”). This challenged conduct is inarguably linked to Defendants’ purported inaction, and, thus, the Court concludes that Plaintiffs have satisfied the causation requirement.
iii. Redressability Finally, to establish that they have standing to bring this action, Plaintiffs must show “redressability—a likelihood that the requested relief will redress the alleged injury.” Steel Co.
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v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998). Plaintiffs’ complaint asks this Court to (1) “[d]eclare that ICE’s failure to make ‘alternative to detention programs’ available to Plaintiffs and members of the class violates 8 U.S.C. § 1232(c)(2)(B) and 5 U.S.C. §§ 706(1) and 706(2); (2) “[o]rder that ICE comply with 8 U.S.C. § 1232(c)(2)(B) by considering Plaintiffs and members of the class 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 (3) “[o]rder that ICE comply with 8 U.S.C. 1232(c) by allowing Plaintiffs and members of the class to participate in alternative to detention program 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.”8 Am. Compl. at 23. Plaintiffs’ cognizable interest in the opportunity to be considered for placement in the least restrictive setting available would be redressed by an order requiring DHS to consider them for such placements.
Defendants maintain otherwise, arguing that (1) “[i]t is unlikely that even if the Court did exactly as the Plaintiffs ask . . . that ICE would use its discretion to reach a different result”; (2) because this Court lacks jurisdiction to review DHS’s decisions to detain Plaintiffs under Section 1226(a) and DHS’s flight risk determinations, the Court has no power to redress Plaintiffs’ alleged injuries; and (3) that this Court’s Opinion at the preliminary injunction stage of this litigation demonstrates that the only alleged injury capable of redress is one regarding
8 Plaintiffs’ complaint asked this Court to “[d]eclare that ICE’s failure to place Plaintiffs and members of the class 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).” Am. Compl. at 23. But, as explained above, Plaintiffs appear to no longer seek such relief. See Pls.’ Opp’n to Mot. to Dismiss at 6 (“Plaintiffs do not complain about, or seek, release from detention (or any other outcome) in individual immigration cases.”). And, to the extent that Plaintiffs continue to press for such a relief, the Court concludes that they lack standing to do so. As Plaintiffs appear to recognize, they have no legally protected interest in any particular placement, thus, this Court could not grant the requested relief.
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documentation of ICE’s consideration, and Plaintiffs have no protected interest in having ICE’s determination memorialized. See Defs.’ Mot. to Dismiss at 14–16. The Court disagrees.
Defendants’ first argument misapprehends the nature of the relief Plaintiffs seek. Because Plaintiffs seek the “consider[ation]” entitled to them under 8 U.S.C. § 1232(c)(2)(B)— and do not request that DHS reach any particular decision about where to place each of them— Plaintiffs need not show that DHS would have placed them differently if it afforded them the consideration that they are due under the statute. Cf., e.g., Bakke, 438 U.S. at 280–81 (concluding that an applicant for admission had standing to challenge a university’s affirmative action admissions program even though the applicant “had been unable to prove that he would have been admitted in the absence of the program”); CC Distribs., Inc., 883 F.2d at 150 (“[A] plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit . . . even though the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded the lost opportunity”). Furthermore, Defendants’ argument that it is unlikely that Plaintiffs would be placed any differently if DHS afforded them consideration as required by the statute is significantly undermined by events in this case. After the Court ordered DHS to afford Plaintiffs Garcia Ramirez and Hernandez Alfaro the consideration that they are due, DHS determined that Mr. Garcia Ramirez should be released on his own recognizance subject to ankle monitoring and reporting, rather than placed in adult detention. See Decl. of Andrew Swierski ¶¶ 10–14, Ex. B, ECF No. 30-2.
Defendants’ other arguments fare no better. Questions about whether this Court has jurisdiction to review DHS’s placement decisions under 8 U.S.C. § 1226(a) or DHS’s flight risk determinations are non-sequiturs. Nowhere do Plaintiffs ask this Court to conduct any such review. And Defendants have not articulated why the Court’s power to order DHS to comply
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with 8 U.S.C. § 1232(c)(2)(B) hinges on it having the authority to review any detention decision or other determination the DHS might make regarding an immigrant who is in removal proceedings. Relatedly, Defendants’ contention that this Court’s Opinion at the preliminary injunction stage “highlights the standing issues posed by Plaintiffs’ complaint,” Defs.’ Mot. to Dismiss at 16, are off base. The reason that the Court did not “order that ICE change its decision on whether to detain under § 1226(a)” and did not seek to review ICE’s flight risk determinations is simple—neither determination is at issue in this case. Ordering ICE to comply with 8 U.S.C. § 1232(c)(2)(B) does not amount to a review of flight risk determinations or to a review of any placement decision. The Court concludes that Plaintiffs’ actual asserted injury—the loss of the opportunity to be considered for a type of relief as required by statute—would be redressable by this Court.
*** In sum, the Court concludes that Plaintiffs have met all three requirements of standing— injury in fact, causation, and redressability. Accordingly, the Court declines to dismiss this suit based on Plaintiffs’ purported lack of standing.
b. Mootness Having determined that Plaintiffs have standing to pursue this lawsuit, the Court next considers Defendants’ arguments that Plaintiffs’ claims are moot. Specifically, Defendants assert that Plaintiffs’ claims are moot because (1) 8 U.S.C. § 1232(c)(2)(B) does not require consideration of any setting less restrictive than adult detention for former unaccompanied minors who are deemed flight risks; (2) the record demonstrates that Plaintiffs received any consideration to which they were entitled before this lawsuit was filed; and (3) all three Plaintiffs have now been released from adult detention—and two Plaintiffs now have legal status in the
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United States—rendering their claims moot now, even if they were not moot at the time that this suit was filed. See Defs.’ Mot. to Dismiss at 18–28; Defs.’ Reply at 14, ECF No. 39. Plaintiffs disagree, contending that the record demonstrates that they had not received all the consideration due to them at the time that they filed this lawsuit, and that, even if the named Plaintiffs’ claims no longer present live controversies, mootness does not bar this class action because the inherently transitory and voluntary cessation exceptions to mootness apply here. See Pls.’ Opp’n at 19–24. The Court concludes that Plaintiffs’ claims were not moot at the time that this suit was filed and that the inherently transitory exception to mootness applies to this case. Accordingly, the Court declines Defendants’ invitation to dismiss this suit on mootness grounds.
The Court must first consider whether Plaintiffs presented live claims at the time that this lawsuit was filed. 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, 761 F.3d at 37 (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))). A “party’s
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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). Instead, a court must ask whether the dispute at issue is still “embedded in any actual controversy about the plaintiffs’ particular legal rights.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009). “[T]he burden of establishing mootness rests on the party raising the issue, and it is a heavy burden.” Fund for Animals v. Williams, 311 F. Supp. 2d 1, 6 (D.D.C. 2004).
Naturally, Plaintiffs insist that, at the time that this suit was filed, they had not received the consideration due to them under 8 U.S.C. § 1232(c)(2)(B), and that they brought this suit to compel Defendants to comply with the statutory provision in considering where to place each of them. See Am. Compl. ¶¶ 39–40, 51–52, 65–67; Pls.’ Opp’n at 19. In support of their position, Plaintiffs point to this Court’s rejection of Defendants’ mootness arguments at the preliminary injunction stage of this litigation. See Pls.’ Opp’n at 19; see also Ramirez, 310 F. Supp. 3d at 17–19. Defendants maintain that Plaintiffs’ claims were moot when this suit was filed. See Defs.’ Mot. to Dismiss at 18–28; Defs.’ Reply at 11–18. Just as the Court did at the preliminary injunction stage, it rejects Defendants’ contentions that Plaintiffs’ claims were moot at the time that this suit was filed.
First, Defendants contend that 8 U.S.C. § 1232(c)(2)(B) “is unambiguous and does not require that Plaintiffs be considered for lesser restrictive settings than they were, as they were deemed flight risks.” Defs.’ Mot. to Dismiss at 21. This follows, Defendants say, from (1) the fact that the Secretary is required to consider placing former unaccompanied alien children in the least restrictive setting available only after assessing flight risk, danger to self, and danger to the
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community; (2) common sense; (3) the broad discretion afforded to the Executive Branch in determining whether to detain an immigrant during the pendency of removal proceedings; and (4) purported conflicts between Section 1232(c)(2)(B) and the larger statutory scheme governing the detention of immigrants who are subject to removal. See Defs.’ Mot. to Dismiss at 21–23. Having rejected these very same arguments in the context of discussing Plaintiffs’ standing to bring this suit, the Court need not linger long.
Contrary to Defendants’ contentions, Section 1232(c)(2)(B) does not limit “consider[ation]” or “eligib[ility] to participate in alternative to detention programs” to those who DHS has determined pose no risk of flight. Rather, assessment of a former unaccompanied minor’s risk of flight—along with assessment of whether he or she poses any danger to himself or herself or to the community–—is only the beginning of the Secretary’s inquiry. By the plain and unambiguous language of the statute, after accounting for these factors, the Secretary “shall consider placement in the least restrictive setting available.” 8 U.S.C. § 1232(c)(2)(B). Furthermore, the statute makes clear that all former unaccompanied minors who are now in DHS custody “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.” Id. That is, the statute calls for an individualized assessment of the proper placement for each former unaccompanied minor in light of DHS’s assessment of his or her danger to self, danger to the community, and risk of flight. It includes no provision permitting DHS to short-circuit this inquiry based on a finding that a former unaccompanied alien poses some risk of flight.9 Accordingly, the
9 Of course, after conducting the assessment required by statute, DHS may conclude that a particular former unaccompanied minor should be housed in an adult detention facility. But nothing in the statutory language permits DHS to avoid performing the entire inquiry that
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Court rejects Defendants’ contention that its determination that each Plaintiff posed some risk of flight sufficed to satisfy 8 U.S.C. § 1232(c)(2)(B).
Second, Defendants contend that each Plaintiff was, in fact, considered for the least restrictive setting available before this suit was filed, and thus, this suit is moot. See Defs.’ Mot. to Dismiss at 23–28; Defs.’ Reply at 11–18. But as this Court explained at the preliminary injunction stage of this litigation, this argument misunderstands the nature and purpose of the mootness doctrine. See Ramirez, 310 F. Supp. 3d at 19. Whether Defendants indeed complied with the statutory provision in placing each of the named Plaintiffs—that is, whether the Court should accept Defendants’ view of what the law required and whether there is no genuine dispute that the factual record shows that Defendants acted as required by law—is a merits question, not an issue of mootness. See id.; see also Schnitzler, 761 F.3d at 39 n.8 (noting that “prospects of success” are “not pertinent to the mootness inquiry” (internal quotation marks omitted) (quoting Chafin, 568 U.S. at 174). Defendants cannot wish away the existence of an actual controversy by insisting that Plaintiffs are wrong about what the law requires and about whether the record shows compliance with the law.
This differs from the situation presented in a case like Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828 (D.C. Cir. 2006). In that case, a plaintiff sued District of Columbia Public Schools, alleging that it had violated the Individuals with Disabilities Education Act by, among other things, failing to provide her child with an individualized education plan (“IEP”). See id. at
Congress required of it. Indeed, the experience of Plaintiffs in this case reveals that DHS’s preinquiry judgments about the appropriate placement for a former unaccompanied minor may differ from its judgments after considering the factors outlined in 8 U.S.C. § 1232(c)(2)(B). Contrary to Defendants’ bald assertions, see Defs.’ Reply at 11–18, the record does not prove that this suit was moot when it was filed. See Ramirez, 310 F. Supp. 3d at 26–30 (finding that Plaintiffs Garcia Ramirez and Hernandez Alfaro were likely to succeed on the merits of their claim that DHS had not complied with 8 U.S.C. § 1232(c)(2)(B) in placing them).
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832–33. The school district argued that claims related to its purported failure to provide an IEP were moot, pointing to evidence in the record showing that an IEP had been created and observing that plaintiff and her representative had acknowledged receiving and reviewing the IEP, though they declined to accept it. See id. at 832. The Circuit rebuffed plaintiff’s contentions that a live controversy remained regarding whether the school district had developed an IEP. See id. The record left “no doubt” that the school district had already given the plaintiff the relief that she sought in the lawsuit before the Court. Not so here. As the Court explained at the preliminary injunction stage, at the time that this suit was filed, there was plenty of doubt regarding whether Defendants had complied with 8 U.S.C. § 1232(c)(B)(1). Indeed, Plaintiffs had marshalled evidence showing it likely that Defendants had not complied with the statutory provision. See Ramirez, 310 F. Supp. 3d at 26–30. Thus, this Court concludes that this suit was not moot at the time that it was filed.
The Court must next consider whether subsequent events have rendered Plaintiffs’ claims moot. Ordinarily, a named plaintiff must present live claims to litigate on behalf of a class. See Sosna v. Iowa, 419 U.S. 393, 402–03 (1975). However, mootness doctrine “is riddled with exceptions,” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 n.11 (1980), and decades worth of Supreme Court precedents explain that a class action “does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs,” Sosna, 419 U.S. at 401. Under the “inherently transitory” exception to mootness, a named plaintiff whose claims became moot before the court certified a proposed class may nonetheless litigate on behalf of the class after certification if “(1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class, and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint.” Olson v. Brown, 594
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F.3d 577, 582 (7th Cir. 2010) (citing Gerstein, 420 U.S. at 110 n.11); Zurak v. Regan, 550 F.2d 86, 91–92 (1977); see also, e.g., Thorpe v. District of Columbia, 916 F. Supp. 2d 65, 66–67 (D.D.C. 2013) (applying this test). Courts in this district and others have recognized that claims arising out of pretrial detention, and similar conditions, may qualify as inherently transitory. See, e.g., Olson, 594 F.3d at 582 (“[T]he length of incarceration in a county jail generally cannot be determined at the outset and is subject to a number of unpredictable factors, thereby making it inherently transitory.”); R.I.L.-R, 80 F. Supp. 3d at 183 (concluding that claims that a class of asylum seekers had been unlawfully detained qualified as inherently transitory). Importantly, the Supreme Court has clarified that the “inherently transitory” exception does not apply outside of the class action context. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018).
Plaintiffs contend that their claims are inherently transitory because former unaccompanied minors are typically detained for only weeks or months before subsequent events in the government’s detention process may result in their release. See Pls.’ Opp’n at 21. As a result, the “[t]he length of any individual’s’ detention, therefore, ‘is impossible to predict, so even though there are certainly individuals whose claims will not expire within the time it would take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will be those individuals.’” Id. (quoting Thorpe, 916 F. Supp. 2d at 67). Defendants agree that “claims arising out of pretrial detention or detentions for sentences of one year or less are inherently transitory.” Defs.’ Reply at 9. Furthermore, Defendants observe that Plaintiffs’ claims are inherently transitory “by operation of 8 U.S.C. § 1232(c)(2)(B), which requires DHS to reconsider an alien’s placement after the alien is placed in its custody.” Id. at 10. Despite these concessions, Defendants insist that the named Plaintiffs’ claims do not qualify as inherently transitory. Defs.’ Reply at 10. This is so, Defendants say, because Plaintiffs have not met the requirements for class certification, and
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thus, they are not entitled to rely on an exception to mootness that is reserved for the class action context. See Defs.’ Reply at 10–11.
The Court agrees with both parties that Plaintiffs’ claims are inherently transitory in nature. Neither party disputes that it is uncertain whether any potential named plaintiff in the putative class of former unaccompanied minors would have a live claim long enough for a district court to certify a class. Rather, the period of detention for any former unaccompanied minor is typically weeks or months and is subject to a host of unpredictable factors. Cf. R.I.L-R, 80 F. Supp. 3d at 183 (recognizing that the period of detention between ICE’s initial screening of asylum seekers and a custody redetermination by an immigration judge is typically weeks or months). Furthermore, there is a constant class of persons suffering the deprivation complained of in the complaint, as Plaintiffs show in their motion for class certification. See Pls.’ Mot. for Class Cert. ¶ 5, ECF No. 6 (estimating that between 1,100 and 1,200 children were transferred from ORR custody to ICE custody in Fiscal Year 2017 and that there are approximately 100 18-year-olds currently in ICE custody). As explained in detail later in this Opinion, the Court rejects Defendants’ contentions that the named Plaintiffs have not satisfied the other requirements for class certification. See infra III.B.). Accordingly, the Court concludes that this case meets the requirements of the inherently transitory exception and that this class action suit is not moot.10
c. Administrative Procedure Act The Court must next address Defendants’ contentions that Plaintiffs may not 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
10 In light of the Court’s determination that the inherently transitory exception to mootness applies here, the Court need not consider Plaintiffs’ arguments that other exceptions to mootness might also apply.
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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). Defendants contend that Plaintiffs’ claims are not reviewable by this Court under the APA because (1) the actions challenged in this lawsuit were committed to agency discretion by law and are not subject to judicial review; (2) Plaintiffs have not challenged any final agency action; and (3) Plaintiffs had available to them another adequate remedy at law. See Defs.’ Mot. to Dismiss at 28–38. Defendants asserted—and this Court rejected—substantially similar arguments at the preliminary injunction stage of this litigation. See Ramirez, 310 F. Supp. 3d at 20–25. As in its prior Opinion, this Court concludes that Plaintiffs’ claims are reviewable under the APA.
i. Judicial Review Defendants first contend that Plaintiffs’ challenges are not subject to judicial review under the APA because (1) the decision to detain Plaintiffs under 8 U.S.C. § 1226(a) is committed to ICE’s discretion by law, and (2) ICE’s discretionary determination as to whether to place Plaintiffs in the least restrictive setting is precluded from review by 8 U.S.C. § 1252(a)(2)(B)(ii). Defs.’ Mot. to Dismiss at 29–32. Plaintiffs contend that Defendants’ nonreviewability arguments are premised on the mistaken notion that Plaintiffs challenge individual detention decisions. See Pls.’ Opp’n to Mot. to Dismiss at 25–26. Plaintiffs assert that the agency action that they challenge in this suit—DHS’s purported failure to consider them for placement in the least restrictive settings available after taking into account statutorily
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enumerated factors—is not committed to agency discretion and no statute precludes judicial review of Defendants’ compliance with it. See id. As explained below, the Court concludes that Plaintiffs’ claims are subject to judicial review under the APA.
The APA “applies, according to the provisions thereof, except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). The Supreme Court has illuminated the difference between § 701(a)(1) and (a)(2), stating that:
The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely.
Heckler v. Chaney, 470 U.S. 821, 830 (1985). In assessing whether either exception to judicial review applies, courts begin “with the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667, 670 (1986). This presumption “like all presumptions used in interpreting statutes, may be overcome by inter alia, specific language or specific legislative history that is a reliable indicator of congressional intent, or a specific congressional intent to preclude judicial review that is fairly discernible in the detail of the legislative scheme.” Id. at 673 (internal citation omitted) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)). The government bears a “heavy burden of overcoming the strong presumption” in favor of judicial review. Dunlop v. Bachowski, 421 U.S. 560, 567 (1975). In particular, the presumption may be overcome “upon a showing of clear and convincing evidence of a contrary legislative intent [to] restrict access to
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judicial review.” Id. (internal quotation marks and citation omitted). Courts “turn[] to the statute’s ‘language, structure and purpose, its legislative history, and whether the claims can be afforded meaningful review.’” Amgen, Inc. v. Smith, 357 F.3d 103, 112 (D.C. Cir. 2004) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 206 (1994)). To determine “whether a matter has been committed solely to agency discretion, [courts] consider both the nature of the administrative action at issue and the language and structure of the statute that supplies the applicable legal standards for reviewing that action.” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006) (citation omitted). Importantly, “[t]his ‘very narrow exception’ to the general rule applies only ‘in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.’” Cook v. FDA, 733 F.3d 1, 6 (D.C. Cir. 2013) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)).
Defendants have fallen well short of rebutting the presumption that DHS’s compliance with 8 U.S.C. § 1232(c)(2)(B) is judicially reviewable. First, the language of the statutory provision features no terms either expressly or impliedly precluding judicial review. Compare 8 U.S.C. § 1232(c)(2)(B), with, e.g., 8 U.S.C. § 1226(e) (stating that “discretionary judgment regarding the application of [Section 1226] shall not be subject to review”). Second, Defendants have not pointed to any legislative history showing congressional intent to preclude judicial review. Third, the consideration mandated by 8 U.S.C. § 1232(c)(2)(B) does not fall into the “categories of administrative decisions” that the Supreme Court and the D.C. Circuit have held are unreviewable. Twentymile Coal Co., 456 F.3d at 156; see also Watervale Marine Co. Ltd. v. U.S. Dep’t of Homeland Sec., 55 F. Supp. 3d 124, 138 (D.D.C. 2014) (“[I]t is established in this circuit that ‘executive branch decision[s] involving foreign policy matters or sensitive matters of
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national security are nonjusticiable by nature.” (second alteration in original) (internal quotation marks and citations omitted)); Capital Area Immigrants’ Rights Coalition v. U.S. Dep’t of Justice, 264 F. Supp. 2d 14, 22 (D.D.C. 2003) (“Categories of actions committed to agency discretion include: (1) agency decisions to institute enforcement proceedings; (2) an agency’s refusal to grant reconsideration of an action; (3) a decision by the CIA to terminate an employee in the interests of national security; and (4) an agency’s allocation of funds from a lump-sum appropriation.”).
Fourth, contrary to Defendants’ contentions, the statutory text is not “drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park, 401 U.S. at 410. Rather, Congress provided meaningful standards against which to judge whether DHS has complied with 8 U.S.C. § 1232(c)(2)(B). Specifically, Congress required that for each former unaccompanied minor, DHS must take account of “the alien’s danger to self, danger to the community, and risk of flight” and must then “consider placement in the least restrictive setting available.” Id. And Congress mandated that former unaccompanied minors “shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives.” Id. These standards provide courts with criteria to evaluate whether the agency complied with its statutory duty. As the D.C. Circuit has explained, “[i]f Congress is not indifferent to the choices an agency makes, within a sphere of action delegated to it, and does not reserve oversight exclusively to itself by precluding judicial review, then we presume the legislature expected the courts to review those choices with a degree of scrutiny calibrated to the issues involved.” Nat’l Treas. Emps. Union v. Horner, 854 F.2d 490, 495 (D.C. Cir. 1988). To be sure, 8 U.S.C. § 1232(c)(2)(B) features permissive and indeterminate language, but the Circuit has repeatedly found that statutes providing similar standards are subject to judicial review under
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the APA. See, e.g., Cody v. Cox, 509 F.3d 606, 608 (D.C. Cir. 2007) (concluding that statutory provision mandating that defendant agency “shall provide for the overall health care needs of residents in a high quality and cost-effective manner” contained a meaningful standard against which to judge the agency’s exercise of discretion); Marshall Cnty Health Care Auth. v. Shalala, 988 F.2d 1221, 1223–25 (D.C. Cir. 1993) (finding that a statute directing an agency’s Secretary to provide “exceptions” to payments “as the Secretary deems appropriate” was not entirely unreviewable because “Congress ha[d] provided a rather specific norm . . . to guide the Secretary’s judgment”); Nat’l Treas. Emps. Union, 854 F.2d at 495 (identifying statutory provisions that, “viewed together, provide a meaningful—not a rigorous, but neither a meaningless—standard against which to judge” an agency’s action).
Defendants’ invocation of other statutory provisions that afford deference to the Executive Branch on immigration matters does not counsel a different result. Defendants first contend that the fact that the decisions whether to detain each Plaintiff under 8 U.S.C. § 1226(a) are committed to ICE’s discretion by law might bear on the reviewability of DHS’s compliance with 8 U.S.C. § 1232(c)(2)(B). See Defs.’ Mot. to Dismiss at 30. And Defendants also contend that 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review of discretionary decisions made under the Immigration and Nationality Act, might somehow preclude this Court’s review of Defendants’ compliance with 8 U.S.C. § 1232(c)(2)(B). Defs.’ Mot. to Dismiss at 31 (arguing that this Court is precluded from reviewing ICE’s discretionary determination as to whether to place Plaintiffs in the least restrictive setting). The Court disagrees on both counts. As the Court explained above, Plaintiffs do not dispute that the decisions of whether and where to detain each of them are not reviewable by this Court. And Plaintiffs explicitly disclaim any suggestion that they seek review of any aspect of DHS’s ultimate choice of placements. Instead, they seek to
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compel DHS to comply with 8 U.S.C. § 1232(c)(2)(B), which specifies that DHS must take account of certain factors and must consider certain placements before making its discretionary placement decisions. The Court agrees with Plaintiffs that it need not have the authority to review every aspect of DHS’s placement decisions to have the authority to review aspects for which there are meaningful standards for judicial review and for which Congress did not preclude such review. Cf. Kucana v. Holder, 558 U.S. 233, 248–49 (2010) (explaining that federal court review of administrative decisions denying motions to reopen removal proceedings are not precluded by statute because, among other things, “[a] court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing”); Geneme v. Holder, 935 F. Supp. 2d 184, 192 (D.D.C. 2013) (concluding that because 8 U.S.C. § 1252(a)(2)(B)(ii) “does not specify that [U.S. Citizenship and Immigration Services] shall have discretion to decide whether and when to adjudicate applications for adjustment of status, . . . the court retains jurisdiction over [plaintiff’s] claim that it has unreasonably delayed the adjudication”). In sum, the Court is not persuaded that 8 U.S.C. § 1232(c)(2)(B) is not subject to judicial review.
ii. Final Agency Action Defendants next question—just as they did at the preliminary injunction stage of this litigation—whether Plaintiffs have identified final agency action that is subject to review under the APA. See Defs.’ Mot. to Dismiss at 32–36; see also Ramirez, 310 F. Supp. 3d at 19–23 (rejecting Defendants’ arguments that Plaintiffs had failed to identify final agency actions reviewable under the APA). Specifically, Defendants assert that (1) the plain meaning of “consider” indicates only a mental process and demands no action on the part of the agency; (2)
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consideration of less restrictive placements does not mark the consummation of any agency decisionmaking process; (3) no legal consequences flow from any consideration afforded under 8 U.S.C. § 1232(c)(2)(B); and (4) allegations that, as a matter of course, ICE fails to comply with 8 U.S.C. § 1232(c)(2)(B) constitute generalized complaints about agency behavior, not subject to review under the APA. The Court stands by its prior conclusion. Plaintiffs have identified final agency action reviewable under the APA.
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 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.
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, 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
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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.” Id. at 177–78 (internal quotation marks and citations omitted). 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).
As the Court explained at the preliminary injunction stage of this litigation, Plaintiffs have challenged final agency action subject to review under the APA. See Ramirez, 310 F. Supp. 3d at 19–23. According to Plaintiffs, DHS placed them in adult detention facilities without considering them for less restrictive placements as required by 8 U.S.C. § 1232(c)(2)(B). Plaintiffs have not lodged a generalized attack, seeking wholesale change to a federal program. They instead seek to compel Defendants to conduct the inquiry mandated by statute before determining where to place each former unaccompanied minor now in DHS’s care and custody. See Ramirez, 310 F. Supp. 3d at 20–21. Approaching finality pragmatically, this Court reasoned that Defendants had consummated a decisionmaking process by failing to consider each Plaintiff for less restrictive placements as required by the statutory provision and that legal consequences flowed from those failures. Id. at 22–23. The Court observed that Defendants had placed Plaintiffs in adult detention facilities and had likely done so without complying with 8 U.S.C. § 1232(c)(2)(B), had affirmatively rejected Plaintiffs’ request for additional consideration of less restrictive placements, and had offered no other indications that they planned to reconsider the factors outlined in 8 U.S.C. § 1232(c)(2)(B). See Ramirez, 310 F. Supp. 3d at 22–23. Furthermore, because of Defendants’ inaction, Plaintiffs were left to “bear detention in more restrictive settings than Defendants might otherwise deem appropriate” had they considered the
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mandated statutory factors. See id. at 23. Defendants’ current arguments merely repeat or repackage arguments that this Court rejected at the preliminary injunction stage. See id. at 19– 23. Although this Court is not bound by its prior conclusions, Defendants have not provided any arguments that undermine the logic of those prior determinations. Thus, the Court again concludes that this suit concerns final agency action reviewable under the APA.
iii. Adequate Remedy at Law Defendants revive another challenge that they first lodged at the preliminary injunction stage of this litigation. Specifically, Defendants assert once again 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.’ Mot. to Dismiss at 36–38; see also Ramirez, 310 F. Supp. 3d at 23–25. Once again, this Court rejects Defendants’ arguments. “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 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, 487 U.S. at 903). 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.
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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. Ramirez, 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).
At the preliminary injunction stage, this Court rejected Defendants’ arguments that the availability of bond hearings qualified as an adequate, alternative remedy for Plaintiffs’ challenges. See Ramirez, 310 F. Supp. 3d at 23–25. The Court explained that prompt action on a request for a bond hearing is not necessarily guaranteed, and that, though 8 U.S.C. § 1232(c)(2)(B) includes no explicit temporal requirement, it is likely that Congress intended DHS to consider such placements soon after the transfer of a former unaccompanied minor to DHS custody. Ramirez, 310 F. Supp. 3d at 24–25. The Court also observed that while Section 1232(c)(2)(B) requires affirmative action of DHS and imposes no financial obligation on the former unaccompanied minors entitled to consideration under the statutory provision, an immigration judge may require payment before any non-citizen may be released to a setting less restrictive than adult detention. See Ramirez, 310 F. Supp. 3d at 24–25.
At this stage of the litigation, Defendants do not offer any new evidence—let alone clear and convincing evidence—of legislative intent showing that bond hearings serve as a forum
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through which a former unaccompanied minor can seek adequate relief for DHS’s failure to comply with 8 U.S.C. § 1232(c)(2)(B). Instead, Defendants primarily restate and repackage arguments rejected at the preliminary injunction stage. See Defs.’ Mot. to Dismiss at 36–38 (arguing that bond hearings provide an adequate remedy). And, to the extent that Defendants offer arguments that were not rejected at that stage, this Court has already rejected in this Opinion arguments that other provisions of immigration law deprive this Court of the authority to review DHS’s compliance with 8 U.S.C. § 1232(c)(2)(B). See Defs.’ Mot. to Dismiss at 37– 38. Again, although not bound by its prior holdings, the Court stands by its prior analysis, and again concludes that Defendants have not shown that there exists an adequate alternative remedy for Plaintiffs’ challenges precluding review under the APA.
d. Failure to State a Claim Finally, Defendants seek dismissal on the grounds that (1) Plaintiffs cannot demonstrate that ICE is uniformly failing to consider the least restrictive settings with respect to former unaccompanied minors who are now in DHS care, and (2) Plaintiffs fail to establish either that ICE does not have any, or has only insufficient, policies and procedures implementing 8 U.S.C. § 1232(c)(2)(B). See Defs.’ Mot. to Dismiss at 38–44. Defendants contend that because of these purported deficiencies, Plaintiffs have failed to state claims upon which relief can be granted. See id. Plaintiffs disagree, arguing that Defendants’ contentions are premised on a misreading of the statutory text. See Pls.’ Opp’n to Mot. to Dismiss at 32. Plaintiffs also argue that, in any event, Defendants’ contentions provide no basis for dismissal as they challenge the merits of Plaintiffs’ claims, not the adequacy of Plaintiffs’ complaint. The Court finds no basis for dismissal.
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“[U]nder Federal Rule 12(b)(6), a plaintiff can overcome a motion to dismiss by simply alleging facts sufficient to state a claim that is plausible on its face.” Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1334 (D.C. Cir. 2015) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A well-pleaded complaint ‘may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable.’” Abbas, 783 F.3d at 1334 (quoting Twombly, 550 U.S. at 556)). In short, “the Federal Rules do not require a plaintiff to show a likelihood of success on the merits in order to avoid pre-trial dismissal.” Abbas, 783 F.3d at 1334. Instead, “[d]ismissal under Rule 12(b)(6) is proper when a plaintiff has failed to plead ‘enough facts to state a claim to relief that is plausible on its face’ and to nudge his claims ‘across the line from conceivable to plausible.’” Abbas, 783 F.3d at 1338 (quoting Twombly, 550 U.S. at 570). Here, Defendants’ additional arguments for dismissal focus on purported inadequacies in the proof marshaled by Plaintiffs. Defendants also speculate that Plaintiffs will not be able to prove the truth of any of their claims. See Defs.’ Mot. to Dismiss at 38–44. But, as Plaintiffs argue, these attacks focus on the merits of Plaintiffs’ suit and such considerations are not properly addressed on a motion to dismiss. The Court declines to dismiss Plaintiffs’ complaint.
B. Plaintiffs’ Motion for Class Certification Having rejected Defendants’ arguments for dismissal of this action, the Court next considers Plaintiffs’ motion for class certification. See generally Pls.’ Mot. for Class Cert., ECF No. 6. Plaintiffs seek certification of a class defined as:
All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternatives to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B).
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Id. at ¶ 3. Upon consideration of the parties’ submissions and the rest of the record in this case, the Court concludes that class certification is warranted and, accordingly, it grants Plaintiffs’ motion.
1. Legal Standard “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). Federal Rule of Civil Procedure 23 governs class certification. A party seeking certification of a proposed class must first demonstrate that the proposed class satisfies the four requirements of Rule 23(a), that:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). In addition to meeting these requirements, a proposed class must satisfy at least one of the three subsections of Rule 23(b). Plaintiffs in this case seek certification under subsection (b)(2), which applies to cases where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Motions for class certification “have their own distinct burdens and fact finding requirements.” Parker v. Bank of America, N.A., 99 F. Supp. 3d 69, 80 (D.D.C. 2015). The burden of proving each of the requisite elements of Rule 23 is on the party seeking certification,
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and the failure to prove any element precludes certification. See In re Rail Freight Fuel Surcharge Antitrust Litig.–MDL No. 1869, 725 F.3d 244, 249 (D.C. Cir. 2013). “The D.C. Circuit has not yet spoken to the precise burden of proof applicable to establishing that the requirements of Rule 23 have been met; however, courts in this Circuit have routinely applied a preponderance of the evidence standard.” Parker, 99 F. Supp. 3d at 80. As the Supreme Court has explained, “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). “[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Id. at 351 (quoting Gen. Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). Moreover, “[t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent— that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen, Inc. v. Conn. Retirement Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
2. Certification Requirements Plaintiffs insist that they have met all of the requirements for certification of their proposed class. See generally Pls.’ Mot. for Class Cert., ECF No. 6. Defendants concede that Plaintiffs satisfy the numerosity and adequacy of representation requirements set out in Rule 23(a). See Defs.’ Opp’n to Class Cert. at 14 n.3, ECF No. 31. However, Defendants dispute that Plaintiffs have met the commonality and typicality requirements and that Plaintiffs have shown
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that Defendants acted or refused to act on grounds generally applicable to the proposed class, as required for certification under Rule 23(b)(2). See id. at 15–24. Finding that Plaintiffs have satisfied all of the requirements for certification, the Court grants their motion.
a. Numerosity Plaintiffs have established that their proposed class is so numerous as to warrant class certification. Because of the general rule confining litigation to only named parties, see Comcast Corp., 569 U.S. at 33, a class action is appropriate only when “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). To meet this requirement, a plaintiff need not meet any “specific threshold,” though “courts in this jurisdiction have observed that a class of at least forty members is sufficiently large to meet this requirement.” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007). In addition, a plaintiff may satisfy the requirement by supplying estimates, rather than a precise number, of putative class members. See Pigford v. Glickman, 182 F.R.D. 341, 347–48 (D.D.C. 1998). Though “[m]ere conjuncture, without more, is insufficient to establish numerosity,” id. at 347, a plaintiff need only provide “a reasonable basis for the estimate provided.” Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999). Relying on statistics setting out the number of children referred to ORR as unaccompanied alien children in Fiscal Year 2017, the number of those children who were seventeen years old when they entered ORR custody, and the average length of a child’s stay in ORR custody during Fiscal Year 2017, Plaintiffs estimate that between 1,000 and 1,200 former unaccompanied minors were transferred from ORR custody to the custody of DHS during Fiscal Year 2017. Pls.’ Mot. for Class Cert. ¶ 5. Plaintiffs also estimate that approximately 100 eighteen-year-old, former unaccompanied minors are currently in ICE custody. See id. In
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addition, Plaintiffs explain that the putative class members lack geographic proximity and are spread across the country. See id. ¶ 6. Former unaccompanied minors who were recently transferred to DHS custody may be housed in any of ICE’s approximately 200 detention facilities. See id. Moreover, Plaintiffs assert that most members of the proposed class lack financial resources and the ability to bring individual lawsuits regarding their respective placements. See id. ¶ 7. Finally, Plaintiffs note that the class at issue is inherently transitory. See id. ¶ 8. There is no telling how long each member of the proposed class will be detained in an adult facility, and the class regularly adds new members as individuals age out of ORR’s jurisdiction. See id.
Defendants do not dispute that Plaintiffs’ class is sufficiently numerous to warrant certification. See Defs.’ Opp’n to Class Cert. at 14 n.3. The Court agrees. Plaintiffs have ably demonstrated that the proposed class likely contains at least forty members and that lack of geographic proximity of the proposed members and the inherently transitory nature of the class would make joinder impracticable. Accordingly, the Court concludes that Plaintiffs have satisfied the numerosity requirement.
b. Commonality Plaintiffs have also established that there are questions of law and fact common to the proposed class, meeting the commonality requirement. See Fed. R. Civ. P. 23(a)(2); see also Dukes, 564 U.S. at 350. To satisfy this requirement, plaintiffs must “demonstrate that the class members have suffered the same injury.” Dukes, 564 U.S. at 350 (internal quotation marks and citation omitted). This requires more than the identification of the purported violation of the same provision of law. Id.; see also DL v. District, 713 F.3d 120, 127–30 (D.C. Cir. 2013) (vacating an order certifying a class composed of students who were purportedly each denied a
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free appropriate public education on the ground that plaintiffs had identified only sufferers of a violation of the same provision of law and had not met the commonality requirement). Instead, plaintiffs’ claims “must depend upon a common contention . . . of such a nature that is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. Importantly, “[w]hat matters to class certification . . . [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id.
Here, Plaintiffs theorize that Defendants have denied all former unaccompanied minors consideration due to each of them under 8 U.S.C § 1232(c)(2)(B). See Pls.’ Mot. for Class Cert. ¶ 9; see also Am. Compl. According to Plaintiffs, all members of the putative class are “subject to ICE’s failure to comply with, and to establish policies and practices implementing, the requirements of Section 1232(c)(2)(B).” Pls.’ Mot. for Class Cert. ¶ 9. As Plaintiffs argue, this action raises common questions of law and fact regarding, among other things, whether, as a matter of course, ICE disregards the requirements of 8 U.S.C. § 1232(c)(2)(B), and whether, as a matter of course, ICE has or does not have policies properly implementing the statutory requirements. See Pls.’ Mot. for Class Cert. ¶ 9.
Defendants dispute that Plaintiffs have met the commonality requirement, arguing that Plaintiffs’ proposed class lacks commonality because it “includes individuals in different procedural postures in their immigration proceedings and who are detained under different statutory sources of authority.” Defs.’ Opp’n to Mot. for Class Cert. at 16. According to Defendants, this “distinction is material because where an alien falls within this statutory scheme determines whether detention is mandatory or discretionary as well as the process available for contesting his or her detention.” Id. Defendants also suggest there may be alternative remedies
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available for certain former unaccompanied minors, and the availability of such remedies turns on the statutory scheme under which each individual is detained. See id. But the Court disagrees that differences in procedural postures and in the authority under which individuals are detained are material to whether Defendants must comply with 8 U.S.C. § 1232(c)(2)(B). As the Court explained above, the obligation to place former unaccompanied minors consistent with 8 U.S.C. § 1232(c)(2)(B) arises upon their transfer to DHS custody and does not turn on the statutory authority under which a particular former unaccompanied minor is detained.
Unlike in Wal-Mart Stores, Inc. v. Dukes, where the Supreme Court reversed the decision to certify a class of half a million women who alleged discrimination under Title VII, on the basis that no “glue” held together the reasons for each of the purported acts of discrimination, 564 U.S. at 352, Plaintiffs in this case have identified a single alleged practice—the refusal to comply with 8 U.S.C. § 1232(c)(2)(B)—that provides the basis for every class member’s injury. Courts in this district have certified classes under similar circumstances. See, e.g., D.L. v. District of Columbia, 860 F.3d 713, 723–26 (D.C. Cir. 2017) (affirming district court’s certification of “three subclasses . . . each defined by reference to a ‘uniform policy or practice’ governing a specific stage of the special education process”); Thorpe, 303 F.R.D. 120, 145–47 (D.D.C. 2014) (finding the commonality requirement met where “[t]he gravamen of plaintiffs’ case [wa]s their contention that the District [wa]s violating the integration mandate and injuring each and every class member by virtue of its failure to implement an effective system of transition assistance”). Accordingly, the Court concludes that Plaintiffs have satisfied Rule 23(a)(2)’s commonality requirement.
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c. Typicality Contrary to Defendants’ arguments, Plaintiffs have also met the typicality requirement set out in Rule 23(a)(3). Rule 23(a)(3) requires a plaintiff to show that “the claims or defense of the representative parties are typical of the claims or defense of the class.” Fed. R. Civ. P. 23(a)(3). Usually, “[t]he commonality and typicality requirements . . . tend to merge.” Dukes, 564 U.S. at 349 n.5 (internal quotation marks and citation omitted). “Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Typicality “screen[s] out class actions in which the legal or factual position of the representatives is markedly different from that of other members of the class even though common issues of law or fact are present.” 7A Charles Wright & Arthur Miller, Federal Practice & Procedures § 1764 (3d ed. 2017). “Generally speaking, ‘typicality is . . . satisfied when the plaintiffs’ claims arise from the same course of conduct, series of events, or legal theories of other class members.’” Daskalea v. Wash. Humane Soc’y, 275 F.R.D. 346, 358 (D.D.C. 2011) (quoting In re Satellite Radio Holdings Sec. Litig., 237 F.R.D. 13, 18 (D.D.C. 2006)). But “[t]he facts and claims of each class member do not have to be identical to support a finding of typicality; rather, typicality refers to the nature of the claims of the representative, not the individual characteristics of the plaintiff.” Id. Here, Plaintiffs explain that, like the other members of the putative class, the named Plaintiffs are former unaccompanied minors who, upon reaching their respective eighteenth birthdays, were transferred from ORR custody to DHS and placed in adult facilities. See Pls.’s Mot. for Class Cert. ¶ 10. Plaintiffs contend that they suffered the exact same injury as the other
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class members: ICE failed to take account of the factors enumerated in 8 U.S.C. § 1232(c)(2)(B), failed to consider them for the least restrictive placement available, and failed to make them eligible for alternative to detention programs. See Pls.’ Mot. for Class Cert. ¶ 10. Seeking to refute Plaintiffs’ contentions, Defendants offer only that the proposed class includes individuals in different procedural postures in their immigration proceedings and who are detained under different statutory sources of authority. See Defs.’ Opp’n to Class Cert. at 16. But, as explained above, Defendants’ obligation to consider Plaintiffs for less restrictive placements does not turn on the source of statutory authority under which they are detained or on the stage of the immigration proceedings. Plaintiffs have shown that their claims are typical of the claims asserted by the rest of the class members.
d. Adequacy Plaintiffs have also met Rule 23(a)’s final requirement: adequacy of representation. Adequacy of representation imposes two criteria on plaintiffs seeking to represent a class: “(1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997). The requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Defendants do not dispute that this requirement is met. See Defs.’ Opp’n to Mot. for Class Cert. at 14 n.3. And the Court agrees. Plaintiffs’ counsel have supplied declarations attesting to their willingness and abilities to take an active role in this litigation and to protect the interests of absent plaintiffs. See Exs. A-D, ECF No. 6. Furthermore, nothing in the record before the Court suggests that the named Plaintiffs have interests that might compete
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with those of unnamed members of the class. Accordingly, the Court concludes that the adequacy-of-representation requirement is met.
e. 23(b) Requirement Having determined that Plaintiffs meet the requirements of Rule 23(a), the Court must next determine whether they meet the requirements of Rule 23(b). Plaintiffs seek certification of a Rule 23(b)(2) class. Such a class may be maintained when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (internal quotation marks and citations omitted). “As a corollary to this principle, certification is generally inappropriate in actions raising significant individual liability or defense issues,” Lightfoot v. District of Columbia, 273 F.R.D. 314, 329 (D.D.C. 2011), or “when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Dukes, 564 U.S. at 360. Contrary to Defendants’ contentions, the Court finds that Plaintiffs have satisfied the requirements of 23(b)(2). Plaintiffs contend that their requested relief—declaratory and injunctive relief requiring Defendants to comply with 8 U.S.C. § 1232(c)(2)(B)—would remedy the injuries of all class members. See Defs.’ Mot. for Class Cert. ¶¶ 14–15. Defendants disagree arguing that (1) the inquiry under 8 U.S.C. § 1232(c)(2)(B) requires individualized determinations and thus classwide relief is not appropriate; (2) the proposed class definition does not meet the requirements of Rule 23(b)(2) because it is administratively infeasible; (3) Plaintiffs appear to
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allege that DHS has “unreasonably delay[ed]” in conducting the inquiry required by 8 U.S.C. § 1232(c)(2)(B), but they have not indicated what length of time constitutes unreasonable delay; and (4) this Court lacks jurisdiction to grant class-wide relief. See Defs.’ Opp’n to Class Cert. at 17–24. The Court disagrees on all fronts.
First, Defendants’ argument that classwide relief is not appropriate because Defendants’ compliance with 8 U.S.C. § 1232(c)(2)(B) entails making individualized determinations about each former unaccompanied minor is unpersuasive. While it is true that the statute demands such individualized determinations, in this suit Plaintiffs challenge Defendants’ practice of failing to comply with the statutory provision at all. They seek injunctive relief requiring only such compliance. They do not seek a court order mandating any particular outcome with respect to any particular former unaccompanied minor. That individualized determinations must be made under the statute does not preclude class certification. Indeed, the D.C. Circuit implicitly rejected this same argument in DL v. District of Columbia, finding that a subclass of special education students—who each required individualized assessments and specially designed educational programming tailored to their respective needs—was properly certified under 8 U.S.C. § 1232(c)(2)(B). See DL, 860 F.3d at 726. The D.C. Circuit has explained that the purpose of Rule 23(b)(2) is to “avoid piecemeal litigation when common claims arise from systemic harms that demand injunctive relief.” DL, 860 F.3d at 726. This litigation avoids the need for each former unaccompanied minor to bring his or her own lawsuit seeking that, as a matter of course, DHS comply with 8 U.S.C. § 1232(c)(2)(B) in placing those who have recently aged into DHS’s jurisdiction.
Second, the Court disagrees with Defendants that Plaintiffs have failed to define an ascertainable class. Defendants’ administrative infeasibility argument centers on the notion that
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“there exists an ‘implied requirement’ that a class be ‘adequately defined’ and ‘clearly ascertainable’ before it can be certified.” Defs.’ Opp’n to Class Cert. at 19 (citing Thorpe, 303 F.R.D at 139). According to Defendants, one aspect of ascertainability is that the class definition cannot depend on the merits of the underlying claim—that is, a plaintiff cannot permissibly define a class by reference to success or failure in proving their claims. This is so, Defendants argue, because permitting what is known as a “fail-safe class” “is unfair to defendants, it prevents an adverse judgment being entered against plaintiffs, and it is unmanageable because the members of the class could only be known after a determination of liability.” Defs.’ Opp’n to Class Cert. at 19–20. The Court disagrees that Plaintiffs’ class definition fails on the basis of a lack of ascertainability.
As an initial matter, the Court observes that it is far from clear that there exists in this district a requirement that a class certified under Rule 23(b)(2) must demonstrate ascertainability to merit certification. See Pls.’ Reply in Supp. Mot. for Class Cert. at 16–18 (citing cases), ECF No. 37; Hoyte v. District of Columbia, 2017 WL 3208456, at *3 n.3 (D.D.C. July 27, 2017) (noting that “[t]he ascertainability requirement, while adopted by some courts in this district, has been recently disavowed by four federal appellate courts” and explaining that “the D.C. Circuit has not opined on the requirement”). To the extent that a showing of ascertainably is required, the Court is not convinced that Plaintiffs’ class definition fails to meet the requirement solely because it is defined—superficially, at least—by reference to success on the merits of Plaintiffs’ claims. Contrary to Defendants’ arguments, Plaintiffs have identified clear and objective criteria on which to show membership in the proposed class—namely, status as a former unaccompanied minor who has been transferred from ORR custody to DHS custody. Plaintiffs’ argument—that, as a matter of course, Defendants fail to afford any members of this group with the consideration
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due under the statutory provision—reveals entirely the bounds of this group. And those bounds are neither vague nor subjective. Moreover, it is not clear why Defendants might be harmed or at all disadvantaged by Plaintiffs’ reliance on a fail-safe class definition in the context of this particular case. As Plaintiffs explain, DHS has an obligation under 8 U.S.C. § 1232(c)(2)(B) independent of the status of this litigation. See Pls.’ Reply Supp. Class Cert. at 17–18; see also Thorpe, 303 F.R.D. at 139–40 (observing that classes certified under Rule 23(b)(2) “will not require individualized notice, opt-out rights, or individual damage assessments, and the defendant will be required to comply with the relief ordered no matter who is in the class”). Thus, to the extent that Plaintiffs rely on a fail-safe definition, the Court concludes that the class proposed is none the less ascertainable and meets any such requirement for certification. Cf. Thorpe, 303 F.R.D. at 140 (certifying a class where “not every resident who has been in a facility for over 90 days necessarily needs transition assistance, but that criteria is an adequate proxy to ‘accurately articulate[] the general demarcations of the class of individuals who are being harmed by the alleged deficiencies under Rule 23(b)(2)’”).
Third, this Court disagrees that Plaintiffs must identify a time period within which Defendants must comply with 8 U.S.C. § 1232(c)(2)(B) to warrant class certification. Plaintiffs’ arguments center not on the notion that consideration under the statute is late coming, but that it is denied all together. See Pls.’ Mot. for Class Cert. ¶ 14 (asserting that “[f]or each class member, ICE has failed to consider their placement in the least restrictive setting and failed to make them eligible to participate in alternative to detention programs”). Finally, the Court disagrees that it lacks jurisdiction to certify the proposed class. Defendants argue that 8 U.S.C. § 1252(f)(1)—which prohibits any “court (other than the Supreme Court” from “enjoin[ing] or restrain[ing] the operation of the provision of part IV of this subchapter . . . other than with
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respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated,”—prohibits certification of the proposed class. See Defs.’ Opp’n to Class Cert. at 22. Conforming to the practice of other courts, this Court concludes that class certification is not precluded where, as here, an injunction “‘will only require the government to comply’ with the statute in question, not to restrain it.” Pls.’ Reply at 19 (quoting Reid v. Donelan, 22 F. Supp. 3d 84, 90 (D. Mass. 2014)); see also, e.g., Diaz v. Hott, 297 F. Supp. 3d 618, 627–28 (E.D. Va. 2018) (concluding that the prohibition against class certification under 8 U.S.C. § 1252(f)(1) “is limited to injunctions against the operation of the relevant [statutory] provisions” and not “an injunction requiring [the government] to comply with the terms of the [statute]”). In sum, the Court concludes that Plaintiffs have met the requirement for certification under 8 U.S.C. 1232(c)(2)(B).

IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 36) is DENIED,
and Plaintiffs’ Motion for Class Certification (ECF No. 6) is GRANTED. The following class is
hereby CERTIFIED under Rule 23(b)(2):
All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternatives to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B).
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 30, 2018

RUDOLPH CONTRERAS United States District Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILMER GARCIA RAMIREZ, et al., Plaintiffs, v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Defendants.

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Civil Action No.:

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18-508 (RC)

FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING LIABILITY

This case concerns alleged violations of the Administrative Procedure Act (“APA”) by

the U.S. Immigration and Customs Enforcement (“ICE” or “the Agency”) in connection with

ICE’s processing of eighteen-year-olds who came to the United States as unaccompanied alien

children (“UACs”). Plaintiffs—immigrant teenagers who entered the United States as UACs—

bring this class action against ICE, the Acting Director of ICE, the Department of Homeland

Security (“DHS”), and the Secretary of Homeland Security (collectively “Defendants” or “the

Government”). When minors lacking immigration status arrive in the United States without

parents or other guardians, they are placed in the custody of the Department of Health and

Human Services, Office of Refugee Resettlement (“HHS” and “ORR”). If they are still in

custody on their eighteenth birthday, the now-adult immigrants “age out” of HHS and ORR

custody and are transferred to ICE custody. Immigrants who undergo this transfer from HHS to

ORR are referred to by the parties as “age-outs” and a subset of these age-outs make up the

plaintiff class in this case. A provision of a 2013 statute amending the Trafficking Victims

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Protection Reauthorization Act (“TVPRA”)1 codified at 8 U.S.C. § 1232(c)(2)(B), requires that when ICE receives custody of an age-out it must “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.” 8 U.S.C. § 1232(c)(2)(B). In short, the plaintiffs argue that a significant number of ICE field offices and officers automatically place many age-outs in adult detention settings without giving less-restrictive settings the consideration required.
In their Amended Complaint, plaintiffs allege that ICE’s failure to consider the least restrictive placement violates the APA. In Count One, the Plaintiffs argue that it is arbitrary, capricious, or an abuse of discretion for ICE not to consider placement in the least restrictive setting. In Count Two, they argue that ICE is unlawfully withholding consideration of placement in the least restrictive setting and they ask the Court to compel the Agency to undertake such consideration. The Counts, though legally distinct, challenge the same conduct and both are focused on what ICE is actually doing with each age-out it encounters. Neither is about what official policy ICE might have written down. In both Counts, the Plaintiffs are alleging that ICE is not fulfilling its obligation to actually consider placement in the least restrictive setting for each age-out that comes into its custody.
The Court conducted a bench trial over the Course of eighteen days between December 2, 2019 and January 15, 2020. Following the trial, the parties submitted proposed findings of fact and conclusions of law, as well as subsequent briefs in opposition. The Court now makes its
1 These amendments to the TVPRA were made as part of a broader set of amendments to the Violence Against Women Act (“VAWA”). See Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 1261, 127 Stat. 54, 56 (codified at 8 U.S.C. § 1232(c)(2)(B)). As a result, the statute governing ICE’s handling of age-outs is sometimes referred to as the TVPRA and sometimes referred to as VAWA.
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Findings of Fact and Conclusions of law, as required by Rule 52(a)(1) of the Federal Rules of Civil Procedure.
For the reasons discussed in detail below, the Court will enter judgment in favor of Plaintiffs. The statute requires that ICE field officers take into account the statutory risk factors of danger to self, danger to community, and risk of flight, and that they consider placing age-outs in the least restrictive setting available. To consider placing an age-out in the least restrictive setting available, ICE officers must be able to identify what available setting would be least restrictive. This requires making an inquiry into available placements for age-outs that ICE officers throughout the country frequently do not undertake. ICE headquarters does not train officers on proper decisionmaking, and in fact gives guidance that is contrary to the statute in several ways. ICE does not require any number of practices that could facilitate compliance with the statute, but leaves it up to field officers’ discretion whether, for example, to review age-outs’ files in detail, to contact group homes and shelters, or to respond to communications from ageouts’ attorneys suggesting settings for them that are less restrictive than adult detention. Many officers choose not to take these steps, with the result that in many of ICE’s largest field offices, age-outs are detained nearly automatically. In the most extreme cases, this means that ICE field officers refuse to release age-outs to organizational sponsors who have said they would be happy to take them in, see infra ¶ 187, or to eighteen-year-olds’ own parents living in the United States, infra ¶ 200, when nothing in the age-outs’ records indicated they posed a flight risk or a danger to themselves or to the public. These are not the decisionmaking processes that Congress required. By failing to make decisions in the way Congress dictated, and based on the factors Congress identified as relevant, ICE fails to fulfill its obligations under the statute and therefore violates the APA.
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I. BACKGROUND For clarity in following the Court’s specific findings of fact and conclusions of law, the Court first provides a brief overview of the facts underlying this case and a summary of the case’s procedural history and current posture.
A. Factual Overview Most immigration enforcement functions in the United States are carried out by the DHS, in which 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 certain exceptional circumstances, unaccompanied minors apprehended by immigration officials are transferred to the custody of HHS. 8 U.S.C. § 1232(b)(3). ORR, an office within 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
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Security, the Secretary [of DHS] shall consider placement in the lease 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—that is to say, ICE—must “tak[e] into account” specified statutory factors and must “consider” placement in the least restrictive setting available for those who aged out of HHS’s jurisdiction. See id. But, unlike unaccompanied minors, these young adults are not promised placement in the least restrictive setting. Compare 8 U.S.C. § 1232(c)(2)(A) (“shall promptly be placed”), with id. § 1232(c)(2)(B) (“shall consider placement”).
B. Procedural History Plaintiffs filed this lawsuit on March 5, 2018. Compl., ECF No. 1. The plaintiffs were three immigrant teenagers who had previously been held in ORR custody as unaccompanied alien children. See Mem. Op. Denying Defs.’ Mot. Dismiss and Granting Pls.’ Mot. for Class Cert. (“MTD and Class Cert. Op.”), ECF No. 50 (citing First Am. Compl. (“Am. Compl.”) ¶¶ 1, 33, 46, 61, ECF No. 21). Each turned eighteen, was transferred to ICE custody, and was placed in an adult detention facility, purportedly without receiving the statutorily mandated consideration of less restrictive placement options. Id. (citing Am. Compl. ¶¶ 1, 4, 13–15). 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 after taking into account [their] danger to self, danger to community, and risk of flight” and by failing to make available to Plaintiffs any alternatives to detention. Am. Compl. ¶¶ 98–106. Second, Plaintiffs contend that Defendants
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have ‘‘failed to take a discrete agency action that [the agency] is required to take,’’ in violation of Section 706(1) of the APA. Id. ¶¶ 107–11; 5 U.S.C. § 706(1).
Plaintiffs moved for class certification, ECF No. 6, and shortly thereafter filed an Amended Complaint, ECF No. 21. The Amended Complaint, which remains the operative complaint today, alleges that ICE’s handling of age-outs violates the APA in two ways. Count One alleges a violation of Section 706(2), which says that a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be” among other things “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). Count Two is similar. It alleges a violation of Section 706(1) which says that a reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). The two counts focus on the same conduct. Count One alleges that ICE’s lack of compliance with Section 1232(c)(2)(B) makes its detention of age-outs arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, while Count Two alleges that ICE’s failure to take required action under Section 1232(c)(2)(B) amounts to the unlawful withholding of required agency actions. See Am. Compl. ¶¶ 98–111.
Defendants moved to dismiss arguing that the plaintiffs lacked standing to bring their claims, that their claims were moot, that ICE’s relevant actions were not reviewable under the APA, and that Plaintiffs failed to state claims upon which relief could be granted. MTD and Class Cert. Op. at 18. The Court disagreed and denied the motion to dismiss. Id. Among the Court’s conclusions in that opinion was that “Section 1232(c)(2)(B) does not limit ‘consider[ation]’ or ‘eligib[ility] to participate in alternative to detention programs’ to those who DHS has determined pose no risk of flight.” Id. at 40. Instead, DHS and ICE must account for
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an age-out’s flight risk, danger to self, and danger to community and then “consider placement in the least restrictive setting available” no matter what the level of flight risk or danger has been assessed to be. Id. “[T]he statute calls for an individualized assessment of the proper placement for each former unaccompanied minor in light of DHS’s assessment of his or her danger to self, danger to the community, and risk of flight. It includes no provision permitting DHS to shortcircuit this inquiry . . . .” Id.
In the same opinion that denied Defendants’ motion to dismiss, the Court granted Plaintiffs’ motion for class certification, allowing Plaintiffs to proceed on behalf of a class defined as:
All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternatives to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B). MTD and Class Cert Op. at 56–57. The case then proceeded to discovery. After the close of discovery, the Government moved for partial summary judgment. Mot. Partial Summ. J. (“MSJ”), ECF No. 209. The Court denied partial summary judgment because the same dispute of fact that the Government conceded precluded summary judgment on Count Two was equally central to the Plaintiffs’ case on Count One. Order Denying Mot. for Partial Summ. J. (“MSJ Order”), 2019 WL 7370368 at *1–2, ECF No. 240. Specifically, as the Government recognized, there was a genuine dispute concerning “whether ICE Officers in the field are indeed considering the least restrictive setting available.” Id. at *1, ECF No. 240 (citing MSJ at 8 n.3). This issue would have to be resolved at trial.
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C. Bench Trial The Court conducted a bench trial over the Course of eighteen days between December 2, 2019 and January 15, 2020. Transcript of Bench Trial (“Trial Tr.”), ECF Nos. 280–313.2 Plaintiffs presented testimony from twenty-three witnesses at trial, calling some to the stand for live testimony and reading deposition testimony into the record for others. They also provided the Court with designated deposition testimony from a number of additional witnesses. Defendants called fourteen witnesses, some of whom had also been presented, in one form or another, by Plaintiffs. Both parties introduced a substantial volume of exhibits and designated significant deposition testimony for the Court’s consideration. Following the close of trial, each party submitted proposed findings of fact and conclusions of law to the Court. At the Court’s instruction, they have divided their arguments across two sets of briefs, with liability and remedies addressed separately. Defs.’ Proposed Findings of Fact and Conclusions of Law Concerning Remedies3 (“Defs.’ Remedies Br.”), ECF No. 267; Defs.’ Proposed Findings of Fact & Conclusions of Law [Concerning Liability] (“Defs.’ Br.”), ECF No 268; Pls.’ Proposed Findings of Fact and Conclusions of Law Concerning Liability (“Pls.’ Br.”), ECF No. 271; Pls.’ Proposed Findings of Fact and Conclusions of Law Concerning Remedies (“Pls.’ Remedies Br.”), ECF No. 272; Pls.’ Mem. Concerning Remedies (“Pls.’ Remedies Mem.”), ECF No. 273. Plaintiffs also filed a series of demonstrative exhibits that they had referred to during trial. Notice of Filing Demonstrative Exs. (“Pls.’ Demonstratives”), ECF No. 275. The parties then filed responses to each other’s
2 The Trial Transcript has been consecutively paginated. Accordingly, the Court will only reference page and line numbers when citing to the transcript, rather than identifying the particular date of the cited testimony or the Electronic Case Filing Number assigned to that portion of the testimony.
3 The Court has supplied this title because Defendants did not title this document.
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proposed findings of fact and conclusions of law. Pls.’ Resp. to Defs.’ Br. (“Pls.’ Resp.”), ECF No. 317; Pls.’ Resp. to Defs.’ Remedies Br. (“Pls.’ Remedies Resp.”), ECF No. 318; Defs.’ Reply to Pls.’ Remedies Mem. (“Defs.’ Remedies Mem. Resp.”), ECF No. 319; Defs.’ Resps. to Pls.’ Br. (“Defs.’ Resp.”), ECF Nos. 321, 3234; Defs.’ Resp. To Pls.’ Remedies Br. (“Defs.’ Remedies Resp.”), ECF No. 322.
Both parties redacted certain information in their briefing and each has filed unredacted versions of these documents under seal.5 See Pls.’ Proposed Findings of Fact and Conclusions of Law Concerning Liability (“Pls.’ Sealed Br.”), ECF No. 270-1; Pls.’ Proposed Findings of Fact and Conclusions of Law Concerning Remedies (“Pls.’ Sealed Remedies Br.”), ECF No. 270-2; Defs.’ Proposed Findings of Fact & Conclusions of Law [Concerning Liability] (“Defs.’ Sealed Br.”), ECF No. 276; Pls.’ Resp. to Defs.’ Br. (“Pls.’ Sealed Resp.”), ECF No. 316-1; Defs.’ Resps. to Pls.’ Br. (“Defs.’ Sealed Resp.”), ECF No. 320-1; Defs.’ Resps. To Pls.’ Remedies Br. (“Defs.’ Sealed Remedies Resp.”), ECF No. 320-2. The Court will cite primarily to the publiclyfiled versions of these documents.
Here, the Court only reaches findings of fact and conclusions of law concerning liability. The Court will address remedies in the near future.
4 Defendants responded to Plaintiffs’ findings of fact and conclusions of law in two separate filings. ECF No. 323 contains paragraphs 218 through 257 of Plaintiffs’ responses to Defendants’ proposed findings of fact concerning liability. Responses to all of Defendants’ other proposed findings of fact and conclusions of law concerning liability are found in ECF No. 321.
5 The parties each filed motions seeking the Court’s leave to make sealed filings pursuant to the Protective Order governing this case, ECF No. 63. Pls.’ Mot. to File Pls.’ Proposed Findings of Fact and Conclusions of Law Concerning Liability and Remedies Under Seal, ECF No. 270; Pls.’ Mot. To File Resp. to Defs.’ Br. Under Seal, ECF No. 316; Defs.’ Unopposed Mot. For Leave to File Under Seal, ECF No. 320. All three motions will be granted and the attached sealed briefings will be deemed filed.
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II. LEGAL STANDARDS A. Rule 52(a) of the Federal Rules of Civil Procedure Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, in an action tried without a jury, the Court “must find the facts specifically and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). The Court’s “[f]indings and conclusions may be incorporated in any opinion or memorandum of decision the court may file.” Defenders of Wildlife, Inc. v. Endangered Species Scientific Auth., 659 F.2d 168, 176 (D.C. Cir. 1981); see also Fed. R. Civ. P. 52(a)(1) (“The findings and conclusions . . . may appear in an opinion or memorandum of decision filed by the court.”). The Court’s findings must be “sufficient to indicate the factual basis for the ultimate conclusion.” Kelley v. Everglades Drainage Dist., 319 U.S. 415, 422 (1943); see also Lyles v. United States, 759 F.2d 941, 943–44 (D.C. Cir. 1985) (“One of [Rule 52(a)’s] chief purposes is to aid the appellate court by affording it a clear understanding of the ground or basis of the decision of the trial court.” (internal quotation omitted)). “But the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of detail or particularization of facts.” Fed. R. Civ. P. 52(a) advisory committee’s note to 1946 amendment; accord Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. DE C.V., 188 F. Supp. 3d 22, 34 (D.D.C. 2016); Wise v. United States, 145 F. Supp. 3d 53, 57 (D.D.C. 2015); Moore v. Hartman, 102 F. Supp. 3d 35, 65 (D.D.C. 2015). The Court is neither “require[d]” nor “encourage[d]” “to assert the negative of each rejected contention as well as the affirmative of those which they find to be correct.” Schilling v. Schwitzer-Cummins Co., 142 F.2d 82, 84 (D.C. Cir. 1944); Paleteria La Michoacana, 188 F.
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Supp. 3d at 34. Similarly, “the court need not ‘address every factual contention and argumentative detail raised by the parties,’ or ‘discuss all evidence presented at trial.’” Moore, 102 F. Supp. 3d at 65 (quoting Mayagüez v. Corporación Para El Desarrollo Del Oeste, 824 F. Supp. 2d 289, 295 (D.P.R. 2011); Wachovia Bank N.A., Nat’l Ass’n v. Tien, 598 F. App’x 613, 617–18 (11th Cir. 2014)) (internal citation omitted); see also Wise, 145 F. Supp. 3d at 57 (“[T]he Court need not address all the evidence presented at trial, and must simply make findings sufficient to allow the appellate court to conduct a meaningful review.”); Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1058 (2d Cir. 1992) (“All that is required by Rule 52(a) is that the trial court provide findings that are adequate to allow a clear understanding of its ruling.”); 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2579 (3d ed. 2008).
In accordance with these standards, the Court has cited portions of the record, including trial testimony, trial exhibits, and designated deposition testimony, to support its findings of fact. The Court has not, however, exhaustively identified every portion of the record upon which it has relied to make its findings of fact, and the omission of a citation to a particular portion of the record does not necessarily mean that the Court did not rely on that portion to make its findings of fact. Rather the Court has considered the record in its entirety, including the Court’s own determination of witnesses’ credibility, and its citations to portions of the record are primarily intended to provide helpful references for the basis of its findings.
The Court has not noted every instance in which a finding it adopts was purportedly disputed by a party but in which that disputing party failed to make a substantive argument against the finding. The Court has addressed those substantive arguments that present a material dispute of fact. The Court therefore has not addressed most instances in which a party purported
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to dispute a proposed finding but only raised legal arguments concerning the legal consequences or implications of the proposed finding, without actually challenging the validity of the fact. Legal arguments are addressed in the Court’s conclusions of law section.
Finally, the Court notes that Rule 52 provides that the Court’s “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6); see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–76 (1985) (discussing the “clearly erroneous” standard).
B. Administrative Procedure Act Under 5 U.S.C. § 706(2)(A), a reviewing court must set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The touchstone of arbitrary-and-capricious review is reasoned decisionmaking. Harry T. Edwards, Linda A. Elliott & Marin K. Levy, The Requirement of Reasoned Decisionmaking: Arbitrary and Capricious Review Under the APA, Federal Standards of Review Ch. XV (Apr. 2013) (“Federal Standards of Review Ch. XV”) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Thus, a court cannot set aside an agency action that is “rational, based on consideration of the relevant factors[,] and within the scope of the authority delegated to the agency by the statute.” State Farm, 463 U.S. at 42–43. Although this is a deferential standard, it still requires a reviewing court to take a “hard look” at an agency’s reasoning. See Federal Standards of Review Ch. XV (quoting Nat’l Lime Ass’n v. EPA, 627 F.2d 416, 451 n.126 (D.C. Cir. 1980)). The agency must provide at least a “‘brief statement’” of its reasoning that “explains ‘why it chose to do what it did,’” so that “the court can ‘reasonably discern[ ]’ the agency’s path.” Coe v. McHugh, 968 F. Supp. 2d 237, 240
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(D.D.C. 2013) (quoting Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001); Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)) (alteration in original). The agency’s decision should be upheld “so long as the agency ‘engaged in reasoned decision making and its decision is adequately explained and supported by the record.’” Clark County v. FAA, 522 F.3d 437, 441 (D.C. Cir. 2008) (quoting N.Y. Cross Harbor R.R. v. Surface Transp. Bd., 374 F.3d 1177, 1181 (D.C. Cir. 2004)).
The APA also authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1). “Unlike the provision that instructs courts to ‘set aside’ unlawful agency action, id. § 706(2), the [Section] 706(1) provision ‘provides relief for a failure to act[.]’” Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 11, 19–20 (D.D.C. 2017) (citing Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62 (2004)). However, “a claim under [Section] 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.” SUWA, 542 U.S. at 64. A plaintiff who asks a court to “compel agency action . . . unreasonably delayed” under § 706(1) must pinpoint an agency’s failure to take an action that is both discrete and mandatory. See SUWA, 542 U.S. at 61, 64. “[Section] 706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’” Id. (quoting Attorney General's Manual on the Administrative Procedure Act 108 (1947) (emphasis added)).
The Court discusses the applicability of both provisions of the APA in more detail in its conclusions of law.
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C. Burden of Proof In the typical civil trial, plaintiffs bear the burden of proving their case “by a preponderance of the evidence.” Escamilla v. Nuyen, 227 F. Supp. 3d 37, 47 (D.D.C. 2017) (citing Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 885 F. Supp 2d 156, 181 (D.D.C. 2012)); see also, e.g., Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 285 (1966) (referencing the “burden of proof . . . generally imposed in civil cases and administrative proceedings” as being “the duty of prevailing by a mere preponderance of the evidence”). The parties have not discussed the burden of proof in their briefing in any detail, and Defendants do not appear to dispute that the preponderance of the evidence standard applies here. “[T]he preponderance of the evidence standard ‘simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before [the trier of fact] may find in favor of the party who has the burden.’” Barhoumi v. Obama, 609 F.3d 416, 424 (D.C. Cir. 2010) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)). “In the simplest of terms, preponderance of the evidence means more likely than not[.]” La Botz v. Fed. Election Comm’n, 889 F. Supp. 2d 51, 59 (D.D.C. 2012). The standard “demands only 51% certainty.” Nat’l Lime Ass’n, 627 F.2d at 453 n.139. For this bench trial, the preponderance of the evidence standard dictates that the Plaintiffs were required to convince the trier of fact—the Court—that it was, at a minimum, slightly more likely than not that ICE failed to comply with Section 1232(c)(2)(B). Plaintiffs are not required to disprove compliance, or to present evidence to counter every alternative theory Defendants may suggest to account for some fault or other in their compliance. See, e.g., infra ¶¶ 290 & n.37, 298 (discussing unfounded theories presented by Defendants relating to the parties’ expert statistical analysis). If the trier of fact is sufficiently convinced that it is more likely than not that
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a violation occurred, the party with the burden of proof is under no obligation to present evidence—or even argumentation—to counter unpersuasive theories and speculation from the other side. See Dennis v. Ford Motor Co., 332 F. Supp. 901, 903 (W.D. Pa. 1971) (observing that a party bearing the burden of proof by a preponderance of the evidence “is not required to disprove every possibility conceived by [opposing] counsel’s inventive mind”), aff’d, 471 F.2d 733 (3d Cir. 1973); Miles v. Sec’y of Health & Human Servs., 142 Fed. Cl. 136, 146 (2018), aff’d, 769 F. App’x 925 (Fed. Cir. 2019) (“Respondent is not required to disprove a theory of causation that the Special Master has already determined to be insufficient.”).
III. FINDINGS OF FACT A. Plaintiffs
1. Named Plaintiffs6 a. Sulma Hernandez Alfaro 1. Sulma Hernandez Alfaro was born on January 19, 2000 in Honduras. Trial Tr. at 689:7–9 (Alfaro). Her eighteenth birthday was January 19, 2018. Id. at 697:12–18 (Alfaro). 2. Ms. Alfaro left Honduras for the United States late in 2016, and arrived in the United States in December, 2016. Id. at 694:7–10; 694:22–695:5 (Alfaro). 3. Ms. Alfaro turned herself in to immigration officials, was identified as an unaccompanied alien child, and was placed in the custody of ORR, in a shelter in San Benito, Texas. Id. at 695:6–19, 696:20–697:1 (Alfaro); see also DX-7 at 2–3, 17. 4. At some time before her eighteenth birthday, Ms. Alfaro filed an application for asylum. Trial Tr. at 706:11–13 (Alfaro).
6 In April 2019, the parties stipulated to the dismissal of a third named Plaintiff, who had been identified as Ana P. She took no further part in this case. See Stipulation to Dismiss Plaintiff Ana P. Under Federal Rule of Civil Procedure 41(a)(1)(A), ECF No. 143.
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5. On or before January 17, 2018, La Posada Providencia (“La Posada”), “a transitional shelter for people in crisis . . . who are seeking legal refuge in [the United States]” agreed to shelter Ms. Alfaro when she turned eighteen. Id. at 706:14–19 (Alfaro); DX-7 at 23.
6. On her eighteenth birthday, Ms. Alfaro was taken into ICE custody. She was picked up by ICE and taken from the ORR shelter where she was being housed to an ICE office for processing, and was then taken to the Port Isabel ICE Detention Center in Harlingen, Texas. Trial Tr. at 697:23–698:17 (Alfaro); DX-7 at 2, 17.
7. No immigration officer ever spoke with Ms. Alfaro about release to La Posada or to any other sponsor, or any other alternative to detention (i.e. release on bond or with an ankle monitor). Id. at 706:20–707:18 (Alfaro). She did not bring up La Posada with the ICE officers processing her because she was not asked. Id. at 730:24–31:1 (Alfaro).
8. On February 2, 2018, Ms. Alfaro’s immigration counsel contacted ICE and unsuccessfully requested that Ms. Alfaro be released to La Posada Providencia. Ltr. from ProBAR to ICE (Feb. 2, 2018), ECF No. 2-9; see also Mem. Op. Granting Prelim. Injunction (“P.I. Op.”) at 9, ECF No. 28.
9. On March 21, 2018, an Immigration Judge granted Ms. Alfaro a bond in the amount of $10,000, but she and her family were unable to pay this amount so she remained in ICE detention. Trial Tr. at 707:19–708:2 (Alfaro); DX-8.
10. On April 18, 2018, this Court granted Plaintiffs’ Motion for a Preliminary Injunction and ordered ICE to comply with § 1232(c)(2)(B) in placing Ms. Alfaro. Order, ECF No. 27.
11. On April 24, 2018, Ms. Alfaro was granted Asylum and she was released from ICE custody. Trial Tr. at 690:1–2, 708:3–4 (Alfaro).
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b. Wilmer Garcia Ramirez 12. Wilmer Garcia Ramirez was born on September 23, 1999 in Guatemala. Trial Tr. at 739:23–740:13 (Ramirez). His eighteenth birthday was September 23, 2017. Id. at 749:1–3 (Ramirez). 13. Mr. Ramirez left Guatemala for the United States in early 2017, and arrived in the United States on March 26, 2017. Id. at 743:20–21, 744:9–11 (Ramirez). 14. Mr. Ramirez was apprehended by immigration officials, was identified as an unaccompanied alien child, was placed in the custody of ORR, and was taken to ORR’s Southwest Key Glendale shelter, located in Glendale, Arizona. Id. at 744:14–745:2 (Ramirez); see DX-11. 15. On September 19, 2017, a state court in Arizona granted a petition declaring Mr. Ramirez a dependent of the state due to his parents’ neglect of him in Guatemala and found that it was not in Mr. Ramirez’s best interest to be returned to Guatemala. Order Regarding Child’s Eligibility for Special Immigrant Juvenile Status at 3, ECF No. 2-4. Based on this, he then filed a petition for Special Immigrant Juvenile Status (“SIJS”), seeking lawful permanent residency in the United States. Petition, ECF no. 2-3; see also P.I. Op. at 4. 16. On September 22, 2017—the day before Mr. Ramirez’s eighteenth birthday—Mr. Ramirez’s immigration counsel wrote to ICE explaining that Mr. Ramirez’s removal proceedings had been administratively closed, and that he had a petition for SIJS pending. His counsel requested that Mr. Ramirez be released on his own recognizance to stay with a family friend in Pennsylvania. DX-11 at 1. The request was denied, and ICE explained to Mr. Ramirez’s counsel that it intended to reopen removal proceedings, though it had not yet done so. Id. at 3–5. 17. On his eighteenth birthday, Mr. Ramirez “had understood that” he would be going to live with his family friend in Pennsylvania. He was instead picked up from his ORR facility by
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ICE and taken to an ICE adult detention facility in Eloy, Arizona. Trial Tr. at 749:1–14 (Ramirez).
18. ICE did not explain why it rejected the possibility of his living with the family friend, nor did it discuss any alternative sponsors or other alternatives to detention with Mr. Ramirez. Id. at 751: 13–25 (Ramirez).
19. On January 5, 2018, Mr. Ramirez’s counsel again requested that Mr. Ramirez be released from custody “to the least restrictive setting available.” DX-17 at 1. Albert Carter, ICE Deputy Field Office Director for the Phoenix Field Office, denied the request, indicating, “I find the totality of circumstances do not support a favorable exercise of discretionary authority in this case.” DX-18.
20. On April 18, 2018, this Court granted Plaintiffs’ Motion for a Preliminary Injunction and ordered ICE to comply with § 1232(c)(2)(B) in placing Mr. Ramirez. Order, ECF No. 27.
21. Shortly after that Order was issued, in April 2018, Mr. Ramirez was released from ICE detention with instructions to appear periodically for hearings. He went to live with an uncle in Bessemer, Alabama. Trial Tr. at 740:18–23, 753:8–23 (Ramirez); see also P.I. Op., at 35–36 (indicating Mr. Ramirez was still in custody at the time of the Court’s Order).
2. Class 22. The Court certified a class under Federal Rule of Civil Procedure 23(b)(2) and defined it as consisting of:
All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternatives to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B). MTD and Class Cert. Op. at 69.
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3. Harm to Class Members 23. Plaintiffs’ expert Dr. Julie Linton presented unrebutted expert testimony concerning the forms of harm that eighteen-year-olds may suffer as a result of detention. Dr. Linton is a pediatrician, a professor and assistant dean for admission as the University of South Carolina School of Medicine in Greenville, South Carolina, and medical director of PASOs, a program that “connects Latino or Hispanic families to community-based resources.” Trial Tr. at 2390:10– 19 (Linton). She has published papers on pediatrics and on care for immigrant children specifically. Id. at 2396:12–24. The Court found her to be well-qualified as an expert, and Defendants did not object at trial to her qualifications as an expert. Id. at 2404:6–9. She reached and testified to “three core opinions” in this case. Id. at 2404:23. 24. Dr. Linton’s first expert opinion was that “because youth from ages 15 to 24 are still undergoing critical brain development in response to their environment and their experiences . . . the experience of detention for 18-year-old immigrant youth would be particularly detrimental to this continuing development. Id. at 2404:24–2405:3; see id. at 2405:12–2419:6 (elaborating on this opinion in more detail and explaining Dr. Linton’s basis for reaching it). 25. Dr. Linton also provided the expert opinion that “detention, particularly in adult settings, is physically and psychologically harmful to children and youth, and threatens both their short- and long-term health and well-being.” Id. at 2405:4–7; see id. at 2419:19–2422:7, 2425:15–2426:13 (elaborating on this opinion in more detail and explaining Dr. Linton’s basis for reaching it). 26. Dr. Linton’s third expert opinion was that “alternatives to detention, including placement in community settings . . . while awaiting court cases are markedly better for the
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health and well-being of youth.” Id. at 2405:8–11; see id. at 2426:14–2428:23 (elaborating on this opinion in more detail and explaining Dr. Linton’s basis for reaching it).
27. This testimony was not rebutted by Defendants. Defendants briefly cross-examined Dr. Linton, id. at 2429:2–2437:7. During Dr. Linton’s direct testimony, the Court observed that “there’s case law that says deprivation of liberty is irreparable [harm] in and of itself,” and lead counsel for Defendants agreed, commenting that “this is not going to be a contested issue” and that Defendants were “not contesting that as a legal position.” Id. at 2423:6–2424:9.
B. Defendants 1. ICE Structure 28. ICE has 24 field offices nationwide and many more sub-field offices. Trial Tr. at 4311:15–21 (Harper). 29. Mellissa Harper has been the unit chief of ICE’s Juvenile and Family Residential and Management Unit (“JFRMU”) since the fall of 2017. Id. at 46:6–17 (Harper). 30. JFRMU is an ICE headquarters unit within Enforcement and Removal Operations (“ERO”) that—among other duties—oversees implementation of § 1232(c)(2)(B). Id. at 46:6– 11, 279:11–12 (Harper); see also DX-4 at 12 (“Introduction to JFRMU”). This involves providing advice, training, and guidance to ICE field officers regarding age-out custody determinations, collecting data, responding to inquiries from the field, and dealing with related issues. Trial Tr. at 46:24–48:2 (Harper). 31. Beyond Chief Harper, other JFRMU personnel who testified in this case were National Juvenile Coordinators Ana Sanchez-Zimak and Eric Ravenell, and Section Chief Dawn Helland. Sanchez Dep. Desig. at 9:18–10:1; Ravenell Dep. Desig. at 9:15–20; Trial Tr. at 4004:4–6 (Helland).
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32. The term “age-out” is used to refer to a UAC who reaches the age of 18 while in ORR custody and is then transferred to ICE custody. E.g. Trial Tr. at 46:18–23 (Harper).
33. JFRMU’s instructions to ICE field officers come in the form of “broadcasts” or “guidance,” which are understood by field officers to constitute orders from ICE headquarters. Id. at 4388:9–4389:2 (Harper). These are sometimes transmitted via e-mail. E.g. DX-6.
34. Field Office Juvenile Coordinators (“FOJCs”) are ICE officers who work in the Juvenile Units of ICE field offices. See Galvez Dep. Tr. at 7:19–8:6; DX-19 at 2. FOJCs serve as local points of contact for all juvenile-related issues in ICE field offices and Areas of Responsibility (“AORs”). This includes requesting ORR placements for UACs, screening apprehended UACs, processing age-outs, and conducting site visits. DX-23 at 4.
35. FOJCs are responsible for making “recommendations” of custody determinations for age-outs, and those recommendations are approved by their supervisors, called SDDOs (Supervisory Deportation and Detention Officers). Trial Tr. at 54:12–54:24 (Harper); see DX-4 at 9 (list of acronyms). JFRMU and Chief Harper do not to make custody determinations in ordinary cases. Trial Tr. at 54:25–55:9 (Harper). Chief Harper testified that “[g]enerally speaking,” it is true that “JFRMU defers to the field office with regards to detention decisions.” Id. at 56:13–15 (Harper).
36. There has been “significant rotation” of field officers into and out of the FOJC position, with FOJCs in many field offices rotating out of the role every one or two years. Trial Tr. at 149:19–150:8 (Harper).
37. The following forms of training are available to new FOJCs: annual in-person training held by JFRMU once a year, monthly calls, access to online resources, and on-the-job training from an outgoing FOJC. Id. at 150:11–151:2 (Harper); see id. at 489:7–10 (Officer
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Ravenell agreeing that “the only training that officers receive when they become FOJCs is on the job training”).
2. Age-Out Placement Alternatives 38. ORR caseworkers sometimes prepare post-18 plans for UACs in ORR custody who are approaching their eighteenth birthday. Id. at 72:14–73:17 (Harper). There is no set format for these and they can range from a single sentence to a longer document. Id. 72:23–24 (Harper). They may include various types of information, including the age-out’s history, including medical and mental health history. Id. 72:20–23 (Harper). Most importantly for Section 1232(c)(2)(B), post-18 plans sometimes include names and contact information for potential sponsors, including potential sponsors that ORR has contacted but did not place an age-out with (if a UAC were placed with a sponsor by ORR, they would not become an age-out). Id. 73:3–5, 73:21–74:2 (Harper). 39. Placement with a sponsor is one of several options ICE FOJCs have for placing an age-out. Section 1232(c)(2)(B) explicitly references two options for placement. It says that ageouts “shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the [age-out]’s need for supervision, which may include placement of the [age-out] with an individual or an organizational sponsor, or in a supervised group home.” 8 U.S.C. § 1232(c)(2)(B). 40. Releasing an age-out to live with a sponsor is one option available to FOJCs processing age-outs. This entails releasing the age-out to reside at the address provided by a sponsor where the sponsor will also live and provide support to the age-out, and where the ageout will be able to receive immigration court notices and similar communications. See, e.g., Trial Tr. 434:24–435:7 (Harper); Munguia Dep. Desig. at 193:20–195:11.
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41. Release to an organizational sponsor or supervised group home is another option available. See PX-1 at 8 (age-out review worksheet asking “[a]re any individual or organizational sponsors or supervised group home available to this age-out for placement?”). Like individual sponsors, organizational sponsors also provide a support for age-outs and help ensure their appearance at any future immigration proceedings. Id. at 4339:19–25 (Harper) (reading into the record ERO guidance from DX-108 at 2); see also id. at 844:20–25 (Enriquez) (testimony from a third-party legal services provider that “an institutional sponsor might be a homeless shelter or an organization that provides housing services to youth”).
42. Organizational sponsors did not need to be in an office’s AOR, as some shelters accepted age-outs from across the country. See Trial Tr. at 845:20–847:14 (Enriquez) (testifying that Catholic Charities has always been able to identify a potential sponsor organization for ageouts by first reaching out to local shelters and then expanding the search to organizations around the country); id. at 1317:14–25 (Lehner) (Miami-area legal services provider testifying that she was able to find placement for age-outs from the Miami AOR with shelters in Chicago and Texas); see also DX-88 (AORW for a Miami office age-out form whom Officer Reardon recommended placement in a Texas shelter).
43. Age-outs can be released under an Order of Supervision (“OSUP”) or on their own recognizance (“OREC”). See, e.g. PX-1 at 8 (age-out review worksheet listing these as among the “Discretionary Release Action(s)” available). In practical terms these are the same—the age out is released—but release on an Order of Supervision is appropriate when the age-out is under an existing order of removal and is being supervised by an immigration court, whereas release on the age-out’s own recognizance is appropriate when no order of removal has been issued. See Trial Tr. at 942:7–943:2, 1107:1–22.
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44. ICE’s Alternatives to Detention (“ATD”) program provides ICE officers with a number of other means for tracking age-outs who are not placed in detention. Carbonneau Dep. Des. at 7:5–8:5.7 These include tracking by ankle bracelet monitor or by smartphone application, telephonic reporting, or ICE’s Intensive Supervision Appearance Program, a program through which outside service providers conduct office visits, home visits, residence visits, orientation enrollment and other forms of tracking. Id. at 10:5–10, 11:4–12:7, 56:10–57:5; see also Trial Tr. at 146:13–147:1 (Harper). ICE field officers can release age-outs on ATD anywhere in the country, with the exception of certain rural or sparsely populated areas. Carbonneau Dep. Desig. at 80:12–21; Trial Tr. at 3697:23–3698:11 (Irizzary).
45. ICE’s ATD Unit Chief Eric Carbonneau confirmed that age-outs are eligible to participate in the ATD program. Carbonneau Dep. Desig. at 115:13–16; see also id. at 75:20– 76:14, 77:8–10. He also explained that the ATD program is “an effective flight risk mitigation tool,” and that it “has demonstrated great success in improving compliance rates for those aliens assigned to the program.” Carbonneau Dep. Des. at 27:11–13; see also PX-21 (memo from Carbonneau to field officers making the same claims about the ATD program’s effectiveness).
46. ICE officers can also release age-outs on an ICE bond. Similar to a criminal bond, this entails the age-out “pay[ing] a bond as collateral for their release from ICE custody.” Trial Tr. at 159:12–20 (Harper). The minimum amount for an ICE bond is $1,500. Trial Tr. at 3143:12–16 (Hyde).
7 When referring to ICE’s ATD program, the Court uses the acronym ATD, or capitalizes the term (“Alternatives to Detention”). Section 1232(c)(2)(B) uses the term “alternatives to detention” in lowercase, more generically. When referring to placements other than detention, the court sometimes uses this phrase without capitalizing or, to avoid confusion, refers to “detention alternatives.”
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47. Finally, ICE can also take an age-out into ICE custody. When ICE does this, the eighteen-year-old age-out is placed in an adult detention facility. Id. at 83:17–84:15. ICE has adult detention facilities with several different levels of security. Id.at 83:21–23 (“We have low, low-medium, medium, medium high.”).
3. Documentation of Age-Out Custody Determinations 48. In discovery in this case ICE produced evidence of age-out custody determinations between April 2016 and May 2019. See, e.g., id. at 18:12–13, 311:13–15 (Plaintiffs’ counsel representing that this is “the period for which ICE has provided data”). Plaintiffs summarized these records in PX-334, as well as in other exhibits. See id. at 1657:16–1665:24 (introducing PX-334 and explaining its contents), 2120:16–2121:25 (describing revisions from PX-334 to PX334A); see also id. at 2169:8–2171:2 (counsel discussing admissibility of PX-334A and explaining the data sources provided by ICE from which Plaintiffs’ counsel constructed summary charts); id. at 4223:12–4228:12 (testimony concerning ICE’s responses to Freedom of Information Act Requests, see PX-505, reflecting that the earliest data ICE could compile concerning age-out custody determinations was from April 2016). 49. For the time period from April 2016 through October 2018, ICE tracked age-out custody determinations through an informal monthly age-out report in the form of a spreadsheet. Id. at 284:2–13; Harper 12/6/18 Dep. Desig. at 27:19–21. 50. Monthly age-out reports tracked the name and A-number (alien number) of each ageout, the field office and/or AOR in which they were processed, their date, and country of birth. Id. at 284:18–285:13. From April 2016 through approximately January 2018 the report also included a column tracking the “Reason for Detention,” but around January 2018, at Chief Harper’s instruction, the spreadsheet was changed to instead ask, “If not detained, reason why?”
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Id. at 285:18–286:21. This subtle change shifted the administrative burden on the field office decisionmaker from justifying the reason an age-out was detained to subsequently justifying the reason an age-out was released.
51. On October 17, 2018, after this court had granted Plaintiffs’ motions for a preliminary injunction and to certify the class, JFRMU / ERO announced to field officers that they would be using a new system to document age-out custody determinations. The new system involved uploading documentation to a SharePoint database and filling out an Age-Out Review Worksheet (“AORW”) for each age-out that was processed by ICE. PX-1; Trial Tr. at 250:20–251:6 (identifying PX-1 as a memorandum from Chief Harper dated October 17, 2018 “announcing . . . the new worksheet and SharePoint documentation system”); id. at 524:22–525:22 (same).
52. The memorandum announcing the new system went to all field office directors and deputy directors and announced that “[t]he process consists of a standardized worksheet that the FOJCs will use to document their considerations and a SharePoint site to track the entire population of age-outs.” PX-1 at 1.
53. The SharePoint database required FOJCs to fill out the same basic information regarding each age-out that they had entered into the monthly age-out reports under the earlier system, including the revised entry for “Non-Detention Reason . . . If not detained reason why[.]” It also allowed for uploading of completed AORWs. See id. at 3–4. The database would also “serve as the repository for the completed worksheets and other documentation supporting ICE’s custody determinations for individual age-outs.” Id. at 1.
54. The AORW / SharePoint documentation system was designed only to document decision processes that were already in place. It was not intended to change anything about the decisionmaking processes. The JFRMU / ERO guidance emphasized that “The new worksheet
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and tracking system are critical to ensure that ICE’s compliance with the law is properly captured. It is imperative that FOJCs ensure that all age-outs, and the considerations in [FOJCs’] custody determinations for each age-out, are documented in the SharePoint site within 24 hours of the transfer or release from ORR custody.” PX-1 at 1.
Defendants apparently dispute this at one point in their response. They argue that the new documentation system was “not intended to change how officers made custody determinations so long as they were doing it properly,” implicitly suggesting that it was intended to change or correct improper determination practices. Defs.’ Resp. ¶ 47. The Court finds otherwise because this new suggestion, in support of which Defendants cite no testimony or evidence, is at odds with Chief Harper’s testimony at trial and with the text of the guidance introducing the worksheet. Trial Tr. at 251:18–252:13 (Harper), 526:1–22 (Harper) (“[T]he process still remained the same, it just added documentation . . . .”); see also PX-1 at 1 (“The new process merely helps document the work that officers already do regarding custody determinations.”). FOJCs understood this as well. Munguia Dep. Desig. at 36:22–37:3; Trial Tr. at 2771:21–2772:2 (Munguia); Hyde Dep. Desig. at 102:13–103:5; Barnes Dep. Desig. at 56:16– 57:20; Reardon Dep. Desig. at 36:1–37:16; Galvez Dep. Desig. at 149:21–150:16; Venegas Dep. Desig. at 50:8–51:10; Black Dep. Desig. at 73:23–74:17; Trial Tr. at 2646:15–2647:14 (Black); Zanello Dep. Desig. at 168:24–169:9.8 Moreover, despite apparently disputing Plaintiffs’ proposed finding of fact on this point, Defendants then do not dispute Plaintiffs’ subsequent proposed findings that “the evidence is undisputed that the AORW and SharePoint “documentation system” were not intended to change how officers made custody determinations,
8 Officer Nancy Zanello’s name was Nancy Sullivan at the time of her deposition, but the Court uses her current last name for consistency with her testimony at trial. See Trial Tr. at 3770:24–3771:2 (Zanello).
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or to ensure that those decisions were made in compliance with the statute” or that “[t]he officers in the field implementing the new documentation system understood the system in the same way.” Defs.’ Resp. ¶¶ 48, 49.
55. The new documentation system was intended to capture and record all the information an FOJC considered in making a custody recommendation. PX-1 at 1 (“[I]t is imperative that FOJCs ensure that all age-outs, and the considerations in their custody determinations for each age-out, are documented . . . .”); Trial Tr. at 4367:13–16 (Harper) (testifying that any sponsor considered by an FOJC is “supposed to” be documented on an AORW); see also Defs.’ Resp. ¶ 54 (not disputing this).
56. The October 2018 AORW asked for basic information concerning an age-out (AOR, age-out’s name, date of birth, alien number, time in custody, gender) and for the FOJC’s name, and then included 16 items, which were as follows, see PX-1 at 6–8:
a. Item 1 asked whether the age-out’s identity and citizenship had been sufficiently determined and provided boxes which could be checked Yes or No.
b. Item 2 asked about the “Health and Notoriety” of the age-out: whether the age-out was “a public figure,” whether there was “Congressional or media interest” in the age-out, and whether the age-out had “[k]nown or reported medical issues.” Again these were yes-or-no questions.
c. Item 3 was headed “Database Queries” and asked whether there were positive or negative results to a search for the age-out in each of a variety of databases, including “Benefits Pending” and “Asylum Pending.” This item also included a space for remarks from the FOJC explaining the results.
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d. Item 4 was headed “Current ORR Facility Type” and asked whether the age-out was coming from a shelter, foster care, or a staff secure or secure facility.
e. Item 5 asked whether the age-out had certain types of underlying charges. f. Item 6 asked whether any Significant Incident Reports9 were provided by ORR
and included boxes to be checked for Yes, No, and Not Applicable. g. Item 7 asked whether behavioral information was provided, and provided boxes
for Yes, No, and Not Applicable, along with space for the FOJC to “briefly describe” the behavioral information. h. Item 8 asked first “Is this age-out a flight risk, danger to the community, or danger to themselves?” and provided boxes for Yes or No responses. Below that question, Item 8 read “NOTE: If Yes, check and explain the reason(s) why in the remarks.” Below this were five possible reasons: Terrorist Affiliation or Ties; Criminal/Delinquency History; Gang Affiliation; Escapes/Non-compliance History; and Other Credible Threat. Each of these was followed by Yes and No check boxes, and there was space for remarks below. i. Item 9 asked whether the age-out had an attorney and provided space to record the attorney’s information. j. Item 10 asked whether a post-18 plan has been provided and provides space for the names and relationships of any potential sponsors. k. Item 11 asked whether certain types of post-18 plan documentation was provided.
9 Item 6 reads “SIR(s) Provided?” SIR is an acronym for Significant Incident Report and these are provided by ORR. The fact that a UAC has an SIR does not necessarily mean the UAC did something wrong. Trial Tr. at 563:19–25.
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l. Item 12 asked whether “any individual or organizational sponsors or supervised group homes [are] available to this age-out for placement” and then provides space for remarks with the instruction “if No, briefly explain in the Remarks which of these options were evaluated and why they were not used.”
m. Item 13 asks for the Risk Classification Assessment (“RCA”) Recommendation for the age-out.10
n. Item 14 is headed “Discretionary Release Action(s).” It instructs “Check all of the options that were evaluated. If any options were not evaluated, or were evaluated and not used, briefly explain why in the Remarks.” It asks about four types of discretionary release actions: OSUP, OREC, see supra ¶ 43, Bond, and ATD. There is also space for remarks.
o. Item 15 reads “Detention Decision, Considering Least Restrictive Setting Available” and has boxes to be checked for Detain or Not Detain. It also asks for a custody classification, if the age-out will be detained. The response to item 15 reflects the FOJC’s custody recommendation. Trial Tr. at 518:12–21.
p. Item 16 provides space for the FOJC’s supervising officer (SDDO) to indicate approval of the FOJC’s recommendation. See also Trial Tr. at 518:18–21. It asks whether the SDDO approves or disagrees with the recommendation, and provides space for remarks along with instructions to “Briefly justify the recommendation in the Remarks, to include alternatives if supervisor disagrees.”
10 The RCA tool is a program used by field officers that makes recommendations as to whether to release or detain an individual and, if the recommendation is to detain, as to what appropriate level of ICE custody detention (e.g. low, medium, high) would be for that individual. See Ravenell Dep. Desig. at 84:3–23; Harper 12/6/18 Dep. Desig. at 168:3–169:4; see also infra ¶¶ 125–130.
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57. At an April 2019 JFRMU training in San Antonio, FOJCs were trained on how to fill out an April 2019 version of the AORW that was different from the October 2018 AORW that had been in use for almost six months. Trial Tr. 416:20–419:2 (Harper); see also PX-197 (completed April 2019 version of the AORW); PX-203 at 4–5 (illegible April 2019 version of the AORW appearing in a PowerPoint presentation from the April 2019 training); infra ¶¶ 83– 100 (discussing the April 2019 training).
58. In August 2019 JFRMU/ERO issued another guidance to field officers announcing the implementation of another updated version of the AORW to be used effective September 1. DX-6; see Trial Tr. at 242:3–9, 253:12–19 (Harper). As in the October 2018 guidance, ERO/JFRMU emphasized that the system was “critical to ensure that ICE’s compliance with the law is properly captured,” and stated that it was “imperative” that materials be documented and uploaded “within 24 hours of the age-out’s transfer or release from ORR custody.” DX-6 at 2 (emphasis in original); see also Trial Tr. at 256:16–258:6 (Harper) (comparing similar language in the October 2018 Guidance (PX-1) and the August 2019 Guidance (DX-6).
59. The April 2019 version of the AORW that had been used at the April 2019 JFRMU training in San Antonio was never used in the field. Trial Tr. at 419:24–420:3 (Harper); id. at 546:16–547:2 (Sanchez).
60. The new August 2019 version of the AORW was changed in a number of substantive ways. Compare PX-1 at 6–8, with DX-6 at 3–6. Among the changes were the following:
a. Item 8 from the earlier AORW was revised and broken up into three items, numbered 8a, 8b, and 8c.
b. Item 8a asks “Is this age-out a danger to themselves?” and provides Yes and No boxes. Below this there are additional options to which the FOJC can answer Yes
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or No: Medical/Mental Health Issues, Suicidal Ideation, History of Self-Harm, and Other Reason. Each has its own check boxes. Below these, the FOJC is instructed to “Write here a detailed explanation for why this person is or is not a danger to himself or herself.” c. Item 8b asks “Is this age-out a danger to the community?” and provides Yes and No boxes. Again there are additional options to which the FOJC can answer Yes or No: Gang Affiliation; Criminal/Delinquency History; Terrorist Affiliation or Ties; ORR Reported Behavioral Issues; and Other Reason. Below these, the FOJC is instructed to “Write here a detailed explanation for why this person is or is not a danger to the community, providing details of any question answered ‘Yes’ above.” d. Item 8c asks “Is this age-out a flight risk?” Again there are additional options to which the FOJC can answer Yes or No: Family and Community Ties; Escapes/Non-Compliance History; Prior Immigration History; Lacks Fixed Address in the United States; Other Reason; and Final Order. Next to “Final Order” is a space for the FOJC to enter the date of the Final Order if one exists. Finally there are instructions to “Write here a detailed explanation for why this person is or is not a flight risk.” e. Item 9, asking whether the age-out has an attorney and for that attorney’s contact information, is now Item 9a. A new Item 9b asks “Does this person have an advocate who is not an attorney, such as a social worker or staff member at a shelter?” If the answer is Yes, the FOJC is instructed to provide a name and contact information.
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f. Item 12 asks whether there is a potential sponsor or organizational sponsor (with the question phrased in the singular (“sponsor”) rather than the plural (“sponsors”) on the earlier form. The space for remarks explaining which options were evaluated and not used has been eliminated, and instead there is only space for the sponsor’s contact information.
g. Items 13 through 16 are significantly changed and consolidated into an Item 13 and an Item 14 only.
h. Item 13 asks for “FOJC Recommendation, Considering Least Restrictive Setting Available” and instructs the FOJC to choose either Detained or Non-Detained. It then asks “Were all options/settings considered when making this recommendation?” (Yes or No) and “Are any alternatives to detention available for this age out?” (Yes or No). There is space for the FOJC to “detail alternatives” and a separate space for the FOJC to “provide supporting factors for the FOJC recommendation.”
i. Item 13 continues instructing the FOJC to choose one of three possible “RCA Custody Recommendation[s]” (High, Medium, or Low) if the recommendation is to detain. Alternatively, if the recommendation is not to detain, the FOJC is instructed to choose one of the following: OREC, OSUP, OREC/ATD, OSUP/ATD, Parole, or Bond. There is then a space for the FOJC’s signature and the date.
j. Item 14 has the heading “ICE Supervisor Custody Determination.” It asks whether the supervisor “Concur[s] with FOJC Recommendation” and allows for a
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Yes or No answer. Space is provided for comments, and for the supervisor’s name and signature and the date. 61. The revised AORW did not change the fact that the AORW and SharePoint system was only designed to document the decisionmaking process, not to change it. The revisions did not change any decisionmaking procedures for FOJCs, but only to help document the processes they were already carrying out. Trial Tr. at 258:7–259:5 (Chief Harper testimony indicating there was no “new or additional guidance” in the new documentation system); DX-6 at 1 (“These procedures help ICE document the work its officers do every day . . . .”); see also PX-53 at 12 (training document stating that “FOJCs should use the Age-Out Review Worksheet to assist in documenting the Age-Out custody determination process”); Trial Tr. at 179:9–19 (Chief Harper reviewing PX-53 at 12).
a. AORW Reliability Issues 62. A significant portion of the AORWs produced in this litigation were not completed by the FOJC who made the custody recommendation at or around the time that the age-out was processed, as the JFRMU/ERO guidance suggests is proper procedure. See supra ¶¶ 54, 58. In their April 2019 Motion to De-Certify the Certified Class for Lack of Numerosity and Commonality (“Mot. to De-Certify”), Defendants had told the Court that “since October 17, 2018, ICE [FOJCs] routinely document their custody determinations . . . [and] have been required to upload, for each and every age-out, an [AORW].” Mot. to De-Certify at 2, ECF No. 140. The Court was informed that “[individual] mistakes are, as they should be, infrequent outliers.” Id. Chief Harper filed a declaration stating that “[AORWs] are now being completed on a nationwide basis” and that “ICE ERO [was] complying with the JFRMU October 17, 2018 guidance.” Decl. of Mellissa B. Harper (“Harper 3/28/19 Decl.”) ¶¶ 25–26, ECF No. 140-3. These representations were incorrect in several respects.
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63. A number of AORWs were created or updated shortly before depositions were taken in connection with this litigation. Officer Ana Sanchez, a National Juvenile Coordinator (“NJC”) in JFRMU, testified that in the days before Chief Harper’s December 6, 2018 deposition she and another NJC, Dawn Helland, were tasked with identifying age-outs processed since October 18, 2018 for whom no AORW had been uploaded to the SharePoint database. Trial Tr. 631:8–633:17; see also PX-267; Trial Tr. at 351:4–352:2 (Chief Harper’s testimony). Officer Sanchez then contacted field officers and asked them to complete and upload the missing AORWs. Trial Tr. 635:8–636:8, 638:3–8. E-mails show Officer Sanchez telling Chief Harper, “[w]e reviewed all the cases. 17 cases are missing the worksheet. . . . We sent emails to the FOJCs and the SDDOs,” PX-286 at 2, and later reporting that “All the missing [AORWs] were completed and uploaded to SharePoint,” id. at 1.
64. The day after her deposition, Chief Harper tasked Officer Sanchez with working with Chicago FOJC Geoffrey Pepple to “review” AORWs from the Chicago field office, to “update[]” the worksheets, and to “get more detail on the forms that need it.” PX-290 at 1; see also Trial Tr. at 649:24–651:24. Officer Sanchez then e-mailed Chicago FOJC Shawn Holmes, asking him to “review” certain AORWs and to “make sure that the reason for detention or release [was] stated” on them. PX-275; Trial Tr. 652:17–659:12 (Sanchez Testimony regarding PX-275 and PX-276); see also PX-276 (similar email to Officer Holmes). Officer Sanchez next e-mailed SDDO Linda Hyde, in the New York City field office, requesting similar review of and revisions to AORWs. Trial Tr. 660:7–25, 662:21–663:14; PX-282; PX-284; see also PX-285 (subsequent email from Sanchez to Hyde asking if Hyde had any additional changes for the worksheets). She also reached out to the Phoenix, El Paso, and Los Angeles offices regarding revisions to their AORWs. See PX-335.09849–50 (Phoenix); PX-289 (El Paso); PX-501 (Los Angeles); see also
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Trial Tr. 3717:21–3719:17 (Los Angeles FOJC Oscar Irizarry identifying PX-501 as a thread of e-mails in which, at Officer Sanchez’s request, he altered responses on an AORW six weeks after the age-out was detained).
65. After Officer Sanchez secured the revisions she requested, Defendants then produced the revised or altered versions of the AORWs to the Plaintiffs in this case. Compare, e.g., PX– 335.09849–.09850, with PX–335.09835–.09837; PX–335.18899–.18901; PX–335.19082– .19084; PX–335.19197–.19199 (e-mail from Officer Sanchez to Phoenix FOJC Zanello requesting changes and produced AORWs reflecting those changes).
66. In addition, more than one field officer testified that his or her name was on AORWs that he or she did not fill out, or testified to filling out or adjusting AORWs with others’ names on them. See Trial Tr. at 3029:5–3034:3 (Mason) (SDDO testifying that he believed someone else may have put his name on an AORW that he did not fill out because “in a rush to finish these [AORWs], he put my name on every single one of them,” id. at 3033:23–25); id. at 3855:12–23 (FOJC Nancy Zanello of Phoenix confirming that she “made . . . changes to [a] worksheet according to Ms. Sanchez’s email . . . even though the decision had been made about a month earlier,” id. at 3855:12–15, by a different FOJC and that she did not believe she was involved in that decision); Hormiga Dep. Desig. at 291:8–292:12 (Houston FOJC Richard Hormiga identifying PX-335.22446–80 as an AORW filled out by someone else even though he had processed the age-out it covers). Officer Zanello testified that, to complete one worksheet, she copied and pasted information from another form, probably did not speak to the age-out, and did not necessarily even speak with the colleague who actually processed the age-out. Trial Tr. at 3848:22–3849:1, 3850:1–3 (Zanello). The revisions that Sanchez requested and Zanello
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carried out included changes as substantive as change the answer for “flight risk” from “no” to “yes.” See id. at 3854:2–15 (Zanello).
67. Finally, in July 2019, ICE informed the Court that it had been failing to document a significant portion of age-outs for at least several years. See PX-351 (Aug. 29, 2019 Decl. of Mellissa B. Harper (“Harper 8/29/19 Decl.”), ECF No. 204-1); see also Mot. to Hold Defs.’ Mot. to Decertify the Class in Abeyance, ECF No. 192.
68. Between October 2018 and July 2019 ICE and ICE officials represented to the Court that all age-out custody determinations were being memorialized in AORWs that were being uploaded to the SharePoint database. See, e.g., Harper 3/28/19 Decl. (“Following JFRMU’s October 17, 2018 guidance, the Age-Out Review Worksheets are now being completed on a nationwide basis.”); Defs.’ Mot. To De-Certified the Certified Class at 1, ECF No. 140 (“ICE implemented a process that assures proper, contemporaneous documentation of its compliance with 8 U.S.C. § 1232(c)(2)(B). Under this procedure, ICE comprehensively documents its process . . . . The implementation of this nationwide process forecloses the introduction of new members into the class, absent some sort of discrete error or mistake by an individual ICE officer.” (footnote omitted)).
69. Between April 1, 2016 and March 31, 2019, ICE had failed to make records for 1,473 age-outs, including 228 age-outs processed between October 17, 2018 and March 31, 2019 while the AORW/SharePoint system was in place. PX-351 ¶ 2. Additionally, 88 individuals had aged out between March 31, 2019 and May 24, 2019 without being recorded in the SharePoint site. Id. This was a significant upward revision. See Trial Tr. at 347:17–18; 348:3–4 (Chief Harper characterizing the discrepancy as “significant”). To take as an example one date range Chief Harper addressed in two declarations, between October 17, 2018 and January 30, 2019, the Court
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had previously been told that 581 individuals aged out, and that 154 of these had been detained. PX-351 ¶ 6 (citing Harper 3/28/19 Decl. ¶ 27). In fact, 742 age-outs had been processed and 263 of these had been detained—a 27.7% increase in the number of age-outs, and an increase in detention rate from 26.5% to 35.4%. Id.
C. Policy, Guidance, and Procedures at the National Level 70. In many, but not all, field offices, deportation officers rotate in and out of the position of FOJC with some frequency—every year or two. See Trial Tr. at 149:24–150:4 (Harper) (stating that “[g]enerally speaking it’s every two years” but that “it can be” every year in some circumstances); see also, e.g., Trial Tr. at 3032:4–8 (Mason), 3623:6–11 (Pepple); Hormiga Dep. Desig. at 26:10–29:12 (describing recent turnover of the entire Houston FOJC team); Venegas Dep. Desig. at 5:25–6:11 (“We rotate[d] the units on a yearly basis”). In some other offices, officers can remain FOJCs for long periods of time. See, e.g., Pepple Dep. Desig. at 8:5–6; Trial Tr. at 3667:22–25 (Irizarry). 71. FOJCs are trained on the job by their predecessors as FOJCs, are trained at the annual JFRMU training, and have access to the FOJC handbook and other online materials from JFRMU. Harper 12/6/18 Dep. Desig. at 220:2–221:2; see also, e.g., Trial Tr. at 2562:22–2563:3 (Black); 2673:19–2674:17 (Kaskanlian); Trial Tr. 2757:18–2758:1 (Munguia); Trial Tr. 3133:15–3134:1 (Mason). There is also no formal headquarters or other training specifically designed for onboarding new FOJCs. Harper 12/6/18 Dep. Desig. at 220:2–221:2; see Defs.’ Resp. ¶ 190 (not disputing that there is no formal or other training specifically designed for onboarding new FOJCs).
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1. Training and Guidance on Age-Out Custody Determinations a. Written Guidance
72. Between the 2013 amendment of the TVPRA that included Section 1232(c)(2)(B) and March 2018, ICE headquarters issued guidance to the field regarding Section 1232(c)(2)(B) three times, in May 2013, January 2016, and November 2016,11 and that ICE also addressed the statute in a 2017 FOJC handbook. PX-338 at 2–5 (3/27/2018 Harper Decl.); see also Defs.’ Resp. ¶¶ 160–65 (identifying no additional guidance from this time period and disputing only Plaintiffs’ characterization of this guidance as improper).
73. The May 2013 guidance says that the language of the amended TVPRA/VAWA “comports with existing ICE practices in that custody determinations are made after considering the circumstances of each individual case” and that age-outs “may also be eligible to participate in [ATD] programs based on the alien’s need for supervision.” PX-338 at 7; see also Ravenell Dep. Desig. at 99:21–100:16 (identifying the document). It also explains that ICE will begin tracking age-out custody determinations by means of the monthly age-out reports described above. PX-338 at 7. It does not quote the statute or reference the statutory factors: danger to self, danger to community, and risk of flight.
74. The January 2016 guidance is a multi-page outline of guidance for apprehending and processing UACs, most of which was devoted to the initial apprehension of UACs and transfer of UACs to ORR custody. Id. at 11–15. The final page addresses age-outs. It paraphrases the statutory language, including mention of the requirement to “consider placing [age-outs] in the
11 Chief Harper’s March 2018 declaration gave the wrong date for this third guidance document. PX-338 at 3. A version produced by ICE in the context of an email thread clarifies the proper date. PX-133.
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least restrictive setting available, taking into account the UAC’s danger to self, danger to community, and flight risk.” Id. at 15. It also referenced DHS Enforcement Priorities. Id.
75. The November 2016 guidance states that the statute “specifically requires ICE to consider placement in the least restrictive setting based on the circumstances of each individual case.” PX-338 at 9. It further states: “A default to detention is never acceptable in these cases; instead, all custody determinations must include an assessment of the individual’s danger to self, the community, and risk of flight, as well as recommendations submitted by ORR in ‘Post-18 Plans.’ Following this assessment, if detention is not justified, release through one of ICE’s alternatives to detention mechanisms should be considered.” Id.
76. The FOJC Handbook, PX-338 at 24–94, references Section 1232(c)(2)(B) at three points. See Defs.’ Resp. ¶¶ 164–65 (not challenging this). Page 18 of the Handbook says that age-outs “shall be considered for placement in the least restrictive setting” and that “[s]uch placements should be considered after evaluating the individual’s danger to self and the community, and risk of flight.” PX-338 at 44. Pages 43 to 44 of the Handbook discuss the statute again, stating that it “requires ICE consider least restrictive settings when making custody determinations” for age-outs, that “[d]eterminations should be made considering the circumstances of each individual case,” and that ATD programs are available for some age-outs. PX-338 at 71. The third reference comes in a discussion of post-18 plans. See id. at 71–72. After quoting the statute, the Handbook says that “[b]ased on the totality of all the information . . . a custody determination should be made prior to transfer back to ICE custody.” Id. at 72.
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77. An updated FOJC Handbook introduced in April 2018 did not make any substantive changes to any material referencing Section 1232(c)(2)(B). PX-346 at 24–25, 54–56; see Defs.’ Resp. ¶ 166 (not disputing this); see also DX-4 (2018 FOJC Handbook).
78. Other than materials used in conjunction with ICE’s April 2019 annual training, the only other written policy guidance from ICE concerning Section 1232(c)(2)(B) has been a “one pager job aid” sent by Chief Harper to all FOJCs on December 21, 2018. PX-135; see Ravenell Dep. Desig. at 153:24–154:8 (NJC Ravenell recalling no additional written guidance); Defs.’ Resp. ¶ 167 (identifying no additional written guidance beyond training materials). The “onepager” consists of a flowchart “Guidance on Age-Outs.” PX-135 at 2. It lays out that ORR should notify an FOJC when a UAC is approaching their 18th birthday and that “ORR provides FOJC with a Post-18 Plan 1-2 weeks prior” to that birthday. Id. Next, according to the flowchart, the “FOJCs assess [the age-out’s] danger to self, community, and flight risk,” and then “FOJCs make a Custody Determination based on the totality of the circumstances” and should consider “[p]ublic safety,” “flight risk,” “Final Order Status,” “Post-18 Plan,” “Communication from ORR,” and “External stakeholder input.” Id. The next box says that “[i]f appropriate, FOJCs consider alternatives to detention programs based on an [age-out’s] need for supervision,” which can include placement with a sponsor, OREC, OSUP, or a program through the ATD unit. Id.
79. The same “one-pager” flowchart guidance that Chief Harper circulated on December 21, 2018 also appeared in training materials used at the national ICE training in April 2019. PX203 at 14. See Trial Tr. at 224:22–225:3; Defs.’ Resp. ¶ 216.
80. The “one-pager” is the only written guidance Chief Harper has issued concerning how age-out custody determinations are to be made. Any additional guidance she has given on
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this topic has been during monthly phone calls, and any additional written guidance she has issued has concerned only documentation of age-out custody determinations. See Defs.’ Resp. ¶ 167 (identifying no additional written guidance and citing only training materials as providing instruction beyond the one-pager).
b. Annual In-Person Training 81. Until the fall of 2019, the only in-person training that field officers received with respect to age-out processing and custody determinations was an annual training conducted by JFRMU. Trial Tr. at 535:24–537–11. Trainings were held in 2016 and 2018, but not 2017 due to funding constraints. Harper 12/6/18 Dep. Desig. at 44:17–22. 82. In each of the 2016 and 2018 trainings, JFRMU presented only one slide addressing offering instruction on age-out custody determinations. See PX-338 at 4–5, 18, 21 (Harper Decl. and exhibits); PX-137 (2016 presentation excerpt); PX-139 (2018 presentation excerpt); see also Defs.’ Resp. ¶ 168 (failing to challenge this contention or to point to any other materials presented at the 2016 or 2018 training). Both of these years, FOJCs were told to “[s]eek [an] ORR Post-18 Plan,” to run the RCA tool, to make a “case-specific custody determination,” and to “[c]onsider VAWA.” Id. at 18, 21. In 2016, though not in 2018, the slide instructed FOJCs to “[c]onsider least restrictive setting,” but in neither year did it mention the statutory factors mentioned in Section 1232(c)(2)(B)—danger to self, danger to the community, and risk of flight. Id. 83. JFRMU’s spring 2019 training—the first training after implementation of the AORW and SharePoint system—addressed age-out processing during two of approximately thirty training sessions. One of these sessions was titled “Current litigation: Garcia Ramirez v. ICE” and the other focused on “Documentation Activity” for age-out custody determinations. Trial Tr. at 539:11–14 (Sanchez), 541:6–542:22 (Sanchez); PX-198 (training schedule); see also
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Defs.’ Resp. ¶ 169 (failing to identify any additional coverage of age-out processing during the 2019 training).
84. The session reviewing this litigation, Garcia Ramirez v. ICE, was led by Officer Sanchez. PX-203 (PowerPoint presentation); Trial Tr. at 542:23–25 (Sanchez). The goals of the session included “[d]iscuss[ing] the custody determination process” and “[d]escrib[ing] the importance of documenting all the articulable facts related to the custody decision.” PX-203 at 3; Trial Tr. at 543:11–18.
85. Part of the Garcia Ramirez v. ICE presentation involved Officer Sanchez describing the AORW “as an example of the available job aids” and emphasizing “the importance of documenting all the articulable facts related to the custody decision.” PX-203 at 4–5. The version of the AORW that Officer Sanchez displayed and discussed was the interim April 2019 version that was never implemented for use by officers in the field. Trial Tr. at 546:16–547:2 (Sanchez); supra ¶¶ 57, 59.
86. Officer Sanchez next displayed a slide addressing Section 1232(c)(2)(B) and summarized it as requiring that “[a]ny minor transferred from ORR to ICE custody at the age of 18 shall be considered for placement in the least restrictive setting.” PX-203 at 6.
87. Another slide summarized the “Age-Out Process.” It explained that FOJCs making custody determinations “must consider the totality of the circumstances and all available information” including not only flight risk, public safety, and danger to self, but also “Post-18 Plan or lack thereof,” “Recommendation letter from sponsor, attorney . . . , advocates, and/or NGOs,” “Behavioral issues,” and “Significant incident reports.” Id. at 8. Officer Sanchez testified that although the phrase “totality of the circumstances” does not appear in the statute, it
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was her understanding that FOJCs not considering “every piece of information available” would “not be doing their job.” PX-203 at 8; Trial Tr. at 548:16–24 (Sanchez).
88. The next slide showed a chart reflecting a sequence of steps for FOJCs to take when processing age outs: first, “[p]erform a Risk Classification Assessment (RCA)”; second, “[c]onsider VAWA in all Age-Out custody determinations”; third, “[m]ake a new custody recommendation to the [SDDO]”; and fourth, serve the necessary form (I-286) reflecting the custody determination. PX-203 at 10; Trial Tr. at 548:25–549:22 (Sanchez). At the second step—considering VAWA—there are additional notes on the chart: “Detention as a default is NOT acceptable” and “Consider the least restrictive setting, ORR facility type, and other available resources.” PX-203 at 10.
89. The next slide emphasized that “Good documentation is key,” and listed forms and documents, including the AORW, that could help memorialize decisionmaking. PX-203 at 12. Officer Sanchez’s presenter notes reflect that she told the FOJCs that a detailed entry in ICE’s ENFORCE Alien Removal Module (“EARM”)12 was “paramount” and that “[a] comment such as [‘]aged out transferred to ICE adult detention[’] is not acceptable” because it fails to “provide the reason why the detain decision was made.” Id.
90. The next slide displayed the flowchart guidance document that Chief Harper had circulated in December 2018. PX-203 at 14; PX-135; see supra ¶¶ 78–132 (explaining that the flowchart indicates that FOJCs should first make a custody determination and then, “[i]f appropriate,” consider alternatives to detention).
91. The remainder of the presentation—aside from some concluding and review slides— involved review of three hypothetical age-out scenarios. PX-203 at 15–33. In the first, the
12 EARM is a case management system used by ICE. Trial Tr. at 599:3–7.
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hypothetical age-out was considered a flight risk because he lacked family or community ties in the United States, but could properly be released to a program in the local community identified by ORR in a post-18 plan because the program had a “good reputation” for “providing young adults with housing, schooling, and medical and legal assistance.” See id. at 15–18.
92. In the second hypothetical, the age-out was a young mother who had been placed in ORR custody along with her one-year-old child. PX-203 at 21. ORR had learned that the only potential sponsor they had been able to identify was a suspected smuggler, and had explained this to ICE but had not provided a post-18 plan. Id. ORR then requested that ICE take custody of the aging-out mother while leaving the one-year-old in ORR custody. Id. The presentation suggests that the correct analysis would be to regard the age-out as a flight risk and a danger to herself because the smuggler/sponsor posed a safety concern. Id. at 23. The fact that the age-out had an infant child would mean that ORR would not release the infant to ICE if the mother was not going to be released from ICE custody. Id. The presentation concluded that “ICE detention was the least restrictive / safer setting for this Age-Out because at the time of custody determination she has no viable sponsor except the smuggler.” Id. at 25–26.
93. Chief Harper testified that this second hypothetical was based on a real case from ICE’s New York office but that she was not aware of any cases presenting similar fact patterns. Trial Tr. at 186:3–25 (Harper). She could not identify another case in which ORR suggested that a mother be separated from a one-year-old child. Id. at 187:10–13 (Harper). She further testified that she believed the presentation’s conclusion was the correct one and that an officer faced with this situation was not obligated to consider or try to identify any alternatives other than what ORR recommends. Id. at 187:23–190:11.
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94. In the third hypothetical, ORR had given ICE a post-18 plan stating that an age-out with no family or community ties in the United States had been diagnosed with PTSD and had expressed suicidal ideations. PX-203 at 28. ORR was recommending release to an emergency shelter. Id. The presentation suggested that the age-out was a flight risk because of his lack of ties and that he posed a risk to himself. Id. at 30. The presentation concluded that “ICE detention was the most appropriate setting” because “ICE needs to consider the danger to self” and “ICE has the responsibility to place this subject where his medical needs can be met.” Id. at 32.
95. Chief Harper testified that under this third scenario, an ICE officer would not be under any obligation to try to identify alternative options for placing this age-out, and that she agreed detention was the right outcome in this scenario. Trial Tr. at 192:13–193:4 (Harper).
96. The documentation activity session was also led by Officer Sanchez, along with Officer Ravenell. PX-199 at 2. The second half of this presentation involved having attendees review two completed AORWs. See id. at 17–27; see also PX-197 (training worksheet); PX-198 (same).
97. “Key takeaways” identified in the presentation included: k. “[T]here is no right/wrong answer, but you should properly document your decision[.]” PX-199 at 22. l. “Ensure EARM case comments match the [AORW]; Worksheet should also match SharePoint[.]” Id. m. “The age-out was in ORR custody for 86 days, and ORR was not able to identify an individual sponsor, a Post 18 program, or a supervised group home for [the age-out.]” Id. at 23.
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n. “He has no equity, family, or community ties in the U.S., thus posing a significant flight risk [.]” Id.
98. The AORW used in the documentation activity session was the interim April 2019 version that was never used in the field. PX-199 at 21; Trial Tr. at 559:19–21 (Sanchez).
99. Regarding Section 1232(c)(2)(B), the presentation explained that “ICE considered VAWA in the custody determination,” but that “ICE was not able to consider any release options because the age-out does not currently have a viable sponsor.” Id. at 24.
100. The presentation listed the RCA recommendation as among the “Documents to be Completed” as part of the custody determination, id. at 25, and identified failure to process an RCA recommendation as a deficiency because “RCA should be used as an aid to complete the custody redetermination process,” id. at 27.
c. Additional Instruction 101. In 2018, JFRMU instituted an “e-learning module,” covering UAC processing . This was an online training program lasting around thirty minutes, based on the FOJCs handbook and covering the role of the FOJC and relevant legal authorities. PX-140; see Ravenell Dep. Desig. at 166:18–168:24. 102. One slide on the UAC processing e-learning module mentions VAWA. PX-140 at 56–57.13 It explains that the statute “states that [age-outs] are eligible to participate in programs such as Alternatives to Detention (ATD), using a continuum of alternatives based on the need for supervision.” Id. at 57. It does not include the language of the statute, does not mention the requirement to consider the least restrictive setting, and does not refer to the statutory factors of danger to self, danger to community, and risk of flight. Id.
13 The same slide also mentions provisions of the TVPRA other than Section 1232(c)(2)(B).
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103. Chief Harper also holds monthly phone calls with FOJCs in which she “cover[s] the most current topics, anything that comes to [JFRMU’s] attention, [and] answer[s] any question the field may have.” Trial Tr. at 151:3–12 (Harper). These calls last thirty to sixty minutes and cover all of JFRMU’s areas of focus, not only age-outs. Id. at 151:3–25; Harper 12/6/18 Dep. Desig. at 51:11–14. No minutes are prepared and no other records of what is discussed on the monthly calls is kept. Harper 12/6/18 Dep. Desig. at 53:17–20.
Plaintiffs do not dispute that “JFRMU holds monthly phone calls with FOJCs to discuss issues and disseminate information,” but they dispute whether JFRMU’s monthly calls constitute or provide training. Pls.’ Resp. FF ¶ 88. Whether the calls can be said to constitute or provide training of one form or another is immaterial, as “training” and “guidance” are not terms that need to be defined in order for this case to be resolved. To the Court, it seems that the calls are best described as a form of guidance or, at most, informal training, considering that no materials are prepared for distribution or to memorialize the topics covered. This is in contrast with the formal training held each year and with the guidance materials distributed from time to time by JFRMU/ERO. It is appropriate to describe the phone calls as informal because, whatever training they contained, it was less rigorous, less memorable, and more difficult for FOJCs to refer back to as compared with the other forms of training which produced written records. This is underscored by the fact that no witness, including Chief Harper, ever pointed to a specific monthly phone call at which a particular issue was discussed.
To the extent the Court finds, below, that FOJCs did not receive formal training on a given topic, it does not mean to suggest that this topic was never mentioned on a monthly call. A finding that there was no formal training on a given topic means that that topic was not addressed
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in annual training or guidance documents and thus that it was only addressed, if at all, in the monthly phone calls.
104. In the fall of 2019, Chief Harper and Officer Helland visited the Miami field office for additional in-person training by JFRMU for all field officers—not just FOJCs—covering all UAC-related issues and practices. Trial Tr. at 4324:23–4325:13 (Harper).
105. Among other reasons for visiting the Miami office, Chief Harper and her staff were concerned that FOJCs in Miami were automatically detaining age-outs without making a VAWA-compliant decision and, instead, leaving it up to ICE’s detention unit to seek out alternatives to detention and to consider less restrictive settings. Trial Tr. at 4327:6–4328:12 (Harper); id. at 4074:23–4075:3 (Helland).
106. The training given during the Miami visit was “not actually geared towards the FOJCs” but JFRMU officials met with FOJCs subsequent to the formal training. Id. at 4112:23– 4413:18 (Helland). This included explaining to the FOJCs that there was no legal basis for the Miami FOJCs’ practice of rejecting proposed sponsors for age-outs solely because they were not lawful permanent residents or United States citizens. Id. at 4151:7–4152:20 (Helland); see also id. at 3925:10–24, 3926:9–17 (Reardon).
107. JFRMU officials conveyed to officers in the Miami office that a decision not to release an age-out to a particular sponsor needed to be based on danger or flight risk, not simply on the fact that the sponsor was not a U.S. citizen or lawful permanent resident. Id. at 4151:7– 4152:20 (Helland).
108. Additional field office visits were planned but, as of the conclusion of trial in January 2020, none had taken place due to lack of funding. Trial Tr. at 4330:21–4331:2 (Harper).
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2. Substance of JFRMU Training a. Totality of the Circumstances 109. In training materials, ICE emphasizes to FOJCs that they should apply a “totality of the circumstances” approach when making age-out custody determinations. PX-203 at 8 (April 2019 training presentation instructing that “[w]hen making an Age-Out custody determination, the FOJC must consider the totality of the circumstances”), id. at 14 (“one-pager” flowchart instructing that “FOJCS make a custody determination based on the totality of the circumstances”); PX-203 at 2 (same); Trial Tr. at 64:14–17 (Harper); Defs.’ Resp. ¶ 95 (“Defendants admit that ICE JFRMU trains officers to make custody determinations based on the ‘totality of the circumstances.’”); see also Harper 5/2/19 Dep. Desig. at 9:21–10:13 (agreeing that totality of the circumstances is the standard by which “all custody decisions are made regardless of who . . . the determination is being made for”); Ravenell Dep. Desig. at 142:24– 143:24 (agreeing “[a] hundred percent” with Chief Harper’s testimony); Trial Tr. at 61:12–25, 62:20–63:1 (Harper). These materials stress the “totality of the circumstances” over and above the three statutory factors identified in Section 1232(c)(2)(B). 110. In Officer Sanchez’s presentation on this litigation from the April 2019 JFRMU training bold text reading “FOJC must consider the totality of the circumstances” appears in a paragraph above a box listing bullet points identifying types of information that might matter. These are: “Post-18 Plan or lack thereof”; “Recommendation letter from sponsor, attorney of record, advocates and/or NGOs”; “Flight risk”; “Public safety”; “Behavioral issues during custody with ORR and any other agencies”; “Significant incident reports”; “Danger to self”. PX-203 at 8. The three statutory factors all appear on this sheet, but they are not emphasized over other sources of information that are not in the statute, and all of these are presented under the umbrella of “totality of the circumstances.” Id. The preceding slide of the same presentation
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identifies the “Relevant Legal Authority” as “VAWA Section 1232(c)(2)(B)” and summarizes it thus: “Any minor transferred from ORR to ICE custody at the age of 18 shall be considered for placement in the least restrictive setting”—no mention is made of the three statutory factors. Id. at 6. The statutory factors are treated separately at one point in Officer Sanchez’s presenter’s notes, see id. at 9, though even there they are not connected to the statute. And nowhere in the slides that were displayed to FOJCs are the three statutory criteria singled out or highlighted. An FOJC reviewing the presentation’s instruction to “Consider VAWA in all Age-Out custody determinations,” id. at 10, would not be able to tell from the presentation that VAWA also obligates her to “tak[e] into account the alien’s danger to self, danger to the community, and risk of flight,” 8 U.S.C. § 1232(c)(2)(B).
111. The “one-pager” job aid that was circulated by Chief Harper in 2018 and which appears again in this same presentation, downplays the statute even further. Id. at 14; PX-135 at 2. It instructs that the custody determination is “based on the totality of the circumstances” and then instructs FOJCs making custody determinations to consider the following: “Public safety and flight risk factors”; “Final Order Status”; “Post-18 Plan”; Communication from ORR, advocates and others; and “External stakeholder input.” PX-203 at 14; PX-135 at 2. Danger to self is not mentioned and, again, statutory factors are listed alongside other inputs and under the heading of “totality of the circumstances.” Id. The FOJC Handbook does list the three statutory factors at two points but does not elaborate on them or provide any instruction on how to apply them. See PX-338 at 44, 71–72; see also supra ¶¶ 76–77 (discussing the FOJC handbook in more detail). The handbook also emphasizes that custody determinations should be “[b]ased on the totality of all the information.” PX-338 at 72.
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112. ICE does not provide and Chief Harper has not seen any guidance or standards defining “totality of the circumstances.” Trial Tr. at 70:12–71:18 (Harper); Ravenell Dep. Desig. at 144:1–4. Chief Harper explained her understanding that considering the “totality of the circumstances” means “that we consider every possible factor that we’re aware of at the time,” Trial Tr. at 62:4–6 (Harper), and that “totality of the circumstances” is “not a standard, it’s a phrase meaning you consider all the information that you have at the time to make a decision based on the factors that apply at that given time,” id. at 69:14–17. See also id. at 578:9–14 (Sanchez) (“[F]or the most part, if we’re looking at the totality of the circumstances, we are looking at everything that is there . . . .”).
b. Flight Risk and Sponsors 113. JFRMU and ICE train FOJCs to consider an age-out’s flight risk based on factors that are present for nearly all age-outs. The training materials used at the April 2019 JFRMU training provide, as examples of reasons an age-out could be a flight risk, “lack of ties, no viable sponsor, no-Post 18 Plan, and long time in ORR custody.” PX-203 at 9; see also id. at 17 (providing “the subject has no family or community ties” as an example of a flight risk); id. at 23 (“the subject does not have equity, family, and/or community ties”); PX-54 at 23 (“He has no equity, family, or community ties in the U.S., thus posing a significant flight risk . . . .”); id. at 26 (“The subject does not have family or community ties in the U.S., thus posing a significant flight risk[.]”). Most age-outs lack community ties in the United States. See Galvez Dep. Desig. 225:11–17; Pepple Dep. Desig. at 175:13–176:5 (“The majority of our cases are what we call recent entrants so they don’t have a lot of community ties here, and as recent entrants they would be considered a flight risk.”); Black Dep. Des. at 24:10–17 (agreeing that her unit, and ICE generally, consider most age-outs to be flight risk.); PX–335.09849–.09850 (email from Sanchez to Zanello
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requesting edits to AORWs to indicate for each of three age-outs that “the subject is a flight risk as he does not have a viable sponsor”).
114. JFRMU also instructs FOJCs to view a long period of time in ORR custody as indicating that an age-out is a flight risk. See, e.g., Trial Tr. (Harper) at 303:12–304:13 (discussing PX-55 at 1, an email from an FOJC referencing a February 2018 monthly FOJC call on which Chief Harper expressed that “if UACs had been in ORR custody for an extended period of time . . . they may be considered a flight risk”); id. at 390:10–19 (Harper) (testifying, while reviewing training materials, that “155 days a is a pretty lengthy stay to be in ORR custody” and that this would be significant because it showed ORR “hadn’t found a sponsor for that person”); PX-155 at 4 (email from Chief Harper stating “One big factor [regarding detention] is the amount of time that ORR has a minor and hasn’t been able to find anyone to release them to. That in and of itself indicates a lack of ties and flight risk.”).
This guidance is, in certain contexts, wrong. First, it does not take into account that certain organizational sponsors have age limits and that some do not accept children. See, e.g., Barnes Dep. Desig. at 51:24–52:9 (discussing Casa Juan Diego, a Houston-area facility that only accepts adults); see also Trial Tr. at 619:19–25 (Sanchez) (reviewing a letter from an organizational sponsor that only accepts “young men ages 17 to 21”). Second, the opposite is true for children who, while in ORR custody, had been placed in foster care and were thus free to attend school and other activities. See, e.g., PX-335.32027 (post-18 plan for a UAC in foster care indicating that the age-out “continues to show effort in school, with no prompting obtains tutoring . . . is respectful in the home, and participates [in] extracurricular activities”). If children with this level of freedom have not taken advantage of it and attempted to abscond, their length of time in ORR custody suggests a lack of flight risk. See Trial Tr. at 2617:12–25 (Black)
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(explaining that she viewed an age-out’s long period of time in foster care as indicating she was not a flight risk); id. at 2730:10–2731:1 (indicating that it was a “very straightforward” decision to release on OREC an age-out who “had been living successfully in the community in a foster care program”).
115. ICE instructs its FOJCs that a risk of flight can be mitigated, including by release to sponsors. In one age-out scenario reviewed at the April 2019 JFRMU training, a hypothetical age-out was said to be a flight risk because of a lack of family ties, but could be released to a “Post-18 program” because “[t]he flight risk concern will be mitigated by the fact that the program has an excellent record of compliance for previous cases.” PX-203 at 17; see id. at 15 (describing the program as having “a good reputation of providing young adults with housing, schooling, and medical and legal assistance”).
116. An age-out’s risk of flight could also be mitigated by a pending application or court case that could yield immigration benefits, like asylum, Special Immigrant Juvenile Status, or family-based immigration visas. Andrea Saenz, a legal services provider who works with people who are in immigration detention or facing deportation in the New York area, testified that in her experience with immigrant clients, “somebody who wants to come back to court, who has defenses to removal, who has counsel, who has an incentive to come back is going to come back, so they’re not going to run away.” Trial Tr. at 1057:13–21; id. at 1029:18–25; see also Tafur Dep. Desig. at 50:14–20 (San Antonio–area legal services provider describing a case in which, after an age-out client was released, “she was very great at communicating . . . and making all diligent efforts to comply with her requirement to [go] to court.”). Officer Black agreed that a strong case for immigration benefits would disincentivize an age-out to abscond. See Trial Tr. at
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2619:21–2621:3 (Black) (“I think most people would assume that would be good reason to stick
around and see their case through . . . .” Id. at 2620:7–8.).14
117. Following the JFRMU visit to the Miami field office, Officer Helland sent an email to
Miami SDDO Lee-Fatt—with Chief Harper’s approval—saying, among other things, that “ERO
14 Defendants ostensibly dispute that pending immigration proceedings can disincentivize flight, but point to no evidence in doing so other than the testimony of Plaintiffs’ expert retired immigration Judge Robert Vinikoor. Defs.’ Resp. ¶ 111. Judge Vinikoor did testify, when asked, that a flight risk remains unmitigated when no sponsor is available, see Trial Tr. at 1872:22–25, but he also said that “you consider other factors,” id. at 1872:18, and his statement about unmitigated flight risk came in response to Defendants’ counsel’s instruction to disregard those other factors, id. at 1872:19–20. When asked a clearer question by Plaintiffs’ counsel, Judge Vinikoor agreed that “eligibility for relief to remain in the United States is a very strong motivational factor that oftentimes shows or compels [age-outs] to return to court.” Id. at 1800:7–10. Defendants challenge Judge Vinikoor’s testimony on a variety of grounds, including that he lacks relevant expertise because he never encountered Section 1232(c)(2)(B) and may never have held a bond redetermination hearing for an adult who arrived in the United States as a UAC. See Defs.’ Resp. ¶ 112. The Court declines to parse the Defendants’ numerous critiques of Judge Vinikoor’s testimony because the essentially unrebutted testimony of Ms. Saenz, Ms. Tarfur, and Officer Black serves to establish well enough the fact that pending immigration proceedings might incentivize age-outs not to abscond.
Defendants also accuse Judge Vinikoor of having given “misleading testimony” regarding the fees he charged for his services in this case. Defs.’ Resp. ¶ 267. They suggest that Judge Vinikoor “claimed that [his work on the case] was in part ‘pro bono’—or ‘for free’—while in reality he charged hundreds of dollars per hour” and that he “even felt the need to apologize to the Court for his misleading testimony on this point.” Id. The Court feels compelled to set the record straight. During his direct examination Judge Vinikoor said he was accepting “a $200 an hour pro bono fee” for his work on this case, in contrast to his usual fee of $450 an hour. Trial Tr. at 1778:23–25. On cross-examination, Defendants’ counsel confirmed this pro bono rate, and asked Judge Vinikoor if he knew “what pro bono means” in Latin. Trial Tr. at 1885:10. He responded “For free,” and counsel agreed and asked, “Is $200 an hour for free?” Id. at 1884:12– 13. Judge Vinikoor then said “I apologize.” Id. at 1884:14. Judge Vinikoor had nothing to apologize for, because he had never claimed to have been working “pro bono” independent of quoting his $200 an hour pro bono rate. He never suggested his services were provided for free. Further, both Judge Vinikoor and counsel mistranslate pro bono, which translates from Latin as “for good” or “for the public good” and is commonly understood to include work performed at reduced rates. See, e.g. Sally Kane, What is Pro Bono?, The Balance Careers (Jun. 27, 2020), https://www.thebalancecareers.com/what-does-pro-bono-mean-2164411; Carla Tardi, What does Pro Bono Really Mean?, Investopedia (Feb. 22, 2019), https://www.investopedia.com/ask/ answers/08/pro-bono.asp. It is Defendants’ argument, not Judge Vinikoor’s testimony, that is misleading.
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may . . . evaluate whether release to [a] proposed undocumented sponsor sufficiently mitigates concerns of flight risk.” DX-108 at 2; see generally Trial Tr. at 4335:22–23 (Harper) (approval of the email). But, as discussed below, ICE does not encourage its officers to make any effort to identify, verify, or investigate sponsors for age-outs, infra ¶¶ 146–150, and officers tend not to do so, infra ¶¶ 157–163.
118. The ATD program is another way to mitigate risk of flight. Carbonneau Dep. Desig. at 23:12–53:2 (ICE 30(b)(6) witness on the ATD program agreeing “that the ATD program is ‘an important flight mitigation tool,’” as he had stated in a 2015 guidance document, PX-22 at 1).
119. An April 2018 email shows that on at least one phone call, in February 2018, Chief Harper told FOJCs that releasing an age-out on ATD was another way that flight risk could be mitigated. See PX-55 at 1 (“During the February FOJC teleconference, it was suggested that if UACs had been in ORR custody for an extended period they could be placed on ATD as they may be considered a flight risk.”); see also supra ¶ 114 (discussing the implication that a long period in ORR custody indicates a flight risk). However, the same email, from an FOJC, makes it clear that the February 2018 call was the first time the FOJC had heard that flight risk could be mitigated in this way. PX-55 at 1 (indicating that the age-out in question, who had been released to a sponsor “aged out before that [February] teleconference”).
In fact, the testimony from a number of FOJCs across the country indicated that broadly speaking, they did not release age-outs on ATD, and many were unsure whether age-outs even qualified for the program. See infra ¶ 139 (finding that, of those who testified, five FOJCs said they were not trained on how to place age-outs on ATD, and that three more did not believe ageouts were eligible for the ATD program).
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120. Across field offices, then, FOJCs view age-outs without verified individual sponsors as lacking community ties and therefore treat them as flight risks. E.g. Trial Tr. at 3394:7–12 (Hyde) (agreeing, in reference to an age-out, that “[t]he fact that he didn’t have a sponsor meant that he was a danger to himself and a significant flight risk”); Hormiga Dep. Des. 139:6–11 (agreeing that an age-out’s “flight risk . . . determination [was] just based on a lack of sponsorship”); id. at 220:5–12 (testifying that an age-out was a flight risk based on “no ties to the community . . . no ways to earn income, and no way to verify where they were going to stay”); Galvez Dep. Desig. 241:12–242:16 (“If they don’t have a sponsor or a place to go they would be a flight risk.”); id. at 243:16–244:15 (testifying that lack of a sponsor can be determinative of whether an age-out is regarded as a flight risk); see also Reardon Dep. Desig. at 139:10–16 (testifying that he viewed an age-out as a flight risk until the detained unit could vet a proposed sponsor); Trial Tr. at 567:7–16 (Sanchez) (“If you don’t have a sponsor, you don’t have an address. I don’t see how they could release you without you having a location to go to.”); id. at 851:4–14 (Enriquez) (third party testifying that his organization “provide[s] [sponsor] information to ICE because that’s a signal that the child has the strong community ties, which we know from experience is a signal that the child is not a flight risk . . . .”); PX-54 at 24 (age-out documentation exercise concluding an activity with the “key takeaway[]” that “ICE was not able to consider any release options because the age-out does not currently have a viable sponsor”).
121. An age-out’s lack of a verified sponsor can also cause that age-out to be perceived by ICE as a danger to himself or herself because in at least two field offices—New York and El Paso—FOJCs have interpreted danger to self to include the risk that an age-out will not have a place to live. Trial Tr. at 3328:3–11 (Hyde) (“[I]n my interpretation, if someone has no place to go and [is] placed out in the elements, it could be a danger to self, yes.”); Galvez Dep. Desig. at
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300:19-301:3 (agreeing that “an age-out that doesn’t have a fixed address or a sponsor could be a danger to themselves because they might become homeless or otherwise suffer adverse consequences”).
This argument is largely a red herring. Regardless of the fact that this logic does not appear to be supported by the plain language of the statute, it is not supported by the facts presented at trial. With respect to the danger of exposing age-outs to the elements, this runs counter to the data indicating that two of the field offices with the highest detention rates are Houston and Miami, where the purported risk of exposure to the elements does not hold up. See infra ¶¶ 176, 191. With respect to offices like Chicago and New York where the elements could pose a hazard to age-outs with nowhere to go, the data presented at trial indicated that Chicago was able to place the vast majority of its age-outs when it attempted to find a place for them, see infra ¶¶ 233–240, and although New York detained large percentages of its age-outs this was not due to a risk of homelessness because there was “a rich array of organizational sponsors” in the area to take them, see infra ¶ 211 (quoting Trial Tr. at 846:3–846:21 (Enriquez)).
122. Officer Hyde, SDDO in ICE’s New York City office, additionally suggested that lack of a sponsor could make an age-out a danger to the community. Trial Tr. at 3139:4–7 (Hyde) (explaining that she understands “harm to the community” to mean “someone, [with] no place to go that could potential[ly] be a harm or risk to the community at large”). No evidence was presented supporting this suggestion.
123. JFRMU condones and permits interpretations of the statute that view lack of a sponsor as indicative of at least some of the three statutory factors, despite recognizing that it is not the obvious meaning of the statute. Officer Sanchez, who is responsible for reviewing documentation of age-out custody determinations in JFRMU, testified that while “danger to self
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usually is some kind of mental illness issues,” it “could” also include lack of a sponsor because an officer “could easily claim the fact that you had [no] address and you [are] going to be a homeless person that could constitute a danger to self because you have no place to stay and it’s cold outside.” Trial Tr. at 664:12–23 (Sanchez). When reviewing AORWs in advance of depositions in 2018, however, Officer Sanchez e-mailed Officer Hyde in New York to say that “[t]he factors for danger to self are self-harming or any other mental health issues” and to request revision of an AORW on which an FOJC had indicated that an age-out was a danger to himself because he had no sponsor. PX-284; see Trial Tr. at 662:20–666:11 (discussing PX-284).
New York City SDDO Linda Hyde testified at one point that JFRMU “told [the New York office] that not having an address is not necessarily harm to self.” Trial Tr. at 3329:13–14. The Court does not find the assertion that JFRMU articulated a general policy along these lines to be credible. Officer Hyde gave this testimony owhile she was reviewing an email, PX-285, in which Officer Sanchez asked that revisions be made to a particular AORW. See Trial Tr. at 3322:2–3331:22 (Hyde). From context, the Court found it sufficiently clear that Officer Hyde did not mean to refer to this email when she said JFRMU had “told” the office not to consider lack of an address or sponsor as signifying danger or harm to self because she said she did not remember when this instruction came from JFRMU. Id. at 3329:18–20 (Hyde).
In general, Officer Hyde’s credibility was undermined by her evasive and combative testimony. See Trial Tr. at 3252:16–20 (Hyde) (“The Court: . . . You need to answer his questions.”), 3496:8–9 (Pan) (“The Court: . . . Officer Hyde was a very combative witness this morning.”); see also, e.g., id. at 3238:6–3329:11 (Hyde) (refusing to respond to the question
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asked even after the Court’s instruction to do so).15 On the particular issue of when JFRMU instructed her office not to view lack of a fixed address as indicative of harm to self, she claimed both that she had already taken corrective actions and that she was closely monitoring the situation going forward, id. at 3330:2–3331:1, but she was not able to say when the message from JFRMU was received, id. at 3329:18–22, or when the corrective actions were taken, id. at 3331:2–3331:10. In light of Officer Sanchez’s testimony indicating that JFRMU did not have a problem with viewing lack of a fixed address or sponsor as indicating a danger to self, the Court thinks it unlikely that JFRMU communicated such instructions to the New York office, otherwise than in Officer Sanchez’s email regarding the AORW revisions.
124. Because lack of a sponsor can be viewed by ICE as signifying that an age-out is either a flight risk or, in some offices, a danger, an age-out’s lack of a sponsor carries determinative weight in many age-out custody determinations. See, e.g., Trial Tr. at 3230:2–3231:17 (Hyde), 3394:7–12 (Hyde) (agreeing, in reference to an age-out, that “[t]he fact that he didn’t have a sponsor meant that he was a danger to himself and a significant flight risk”); Galvez Dep. Desig. at 291:12–292:20 (Officer Galvez would designate an age-out a flight risk based solely on the lack of a sponsor); Pepple Dep. Desig. at 175:22–176:10 (testifying that the “vast majority” of age-outs are recent entrants to the country who have limited community ties and are therefore flight risks); see also Harper 5/2/19 Dep. Desig. at 28:20–29:8 (Chief Harper was not personally aware of any case where ICE released an age-out without a sponsor); PX-213 at 2 (AORW indicating “ORR was unable to provide a sponsor making subject a flight risk”).
15 Plaintiffs attacked Officer Hyde’s credibility in a footnote in their briefing, identifying a number of points on which she was impeached. Pls.’ Br. at 180 n. 5. Not only did Defendants not dispute anything in this footnote, but they did not even respond to it, Defs.’ Resp. at pp.333– 334, despite having responded to similar footnotes attacking the credibility of other witnesses, see id. at 63–66 (Chief Harper), 392–94 (Officer Zanello).
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c. Risk Classification Assessment 125. FOJCs were required to run the RCA tool on each age-out they processed. Officer Ravenell attested to this, as did many FOJCs, and Defendants do not dispute it. Ravenell Dep. Desig. at 85:1–8; see, e.g., Hyde Dep. Desig. at 239:5–17; Barnes Dep. Desig. at 75:24–76:13; Pepple Dep. Desig. at 28:12–29:25; Reardon Dep. Desig. at 77:15–17; Galvez Dep. Desig. at 88:1–6; Love Dep. Desig. at 34:8–35:5, 36:11–22; see also Defs.’ Resp. ¶¶ 99–106 (“ICE policy is to require that the RCA tool be used for every adult custody decision, including age-outs.”). 126. In August 2017, the possible outputs given by the RCA tool regarding whether an age-out should be detained were adjusted: whereas before it had recommended detention or release, after the adjustment it would only either recommend detention or “say[] . . . something like see your supervisor” or “discuss with supervisor.” Trial Tr. at 176:13–177:5 (Harper); see also Gibney Dep. Desig. at 55:22–60:07 (stating that the tool was changed to recommend only “detain” or “supervisor to determine”); id. at 62:6–7 (stating that the change came from ERO leadership); see also Defs.’ Resp. ¶ 100 (failing to dispute that the tool was adjusted in this way). Thus, after the adjustment, the RCA tool would never recommend that an age-out be released. 127. JFRMU provided no guidance to the field when the release option was eliminated, and in fact continued to tell field officers to run the RCA on every age-out they process. At the April 2019 training FOJCs were instructed they must run the RCA as the first step of age-out processing. PX 203 at 10; Trial Tr. at 548:25–549:8 (Sanchez). See also PX-203 at 34 (same graphic repeated toward the end of the presentation under the heading “Key Take-Aways”); PX199 at 27 (slide identifying failure to process an RCA recommendation as a potential “case deficienc[y]”). Officer Ravenell, one of the presenters at the April 2019 training, did not recall when he learned about the change to the RCA outputs when asked at his deposition in May 2019, but said that it might have been in 2018. Ravenell Dep. Desig. at 86:5–17. Officer Sanchez,
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another presenter, testified that she did not recall anyone telling the FOJCs in April 2019 that the RCA no longer recommended release. Trial Tr. at 684:13–685:4 (Sanchez).
Chief Harper testified that when she learned of the change to the RCA tool’s outputs JFRMU “immediately started telling people, the FOJCs in the field, not to rely on the RCA.” Id. at 342:9–13 (Harper). If Chief Harper meant to suggest that she began telling FOJCs not to rely on the RCA at all, or to alert them to the change in the RCA tool’s outputs, the Court does not find this assertion credible.16 Defendants have not produced or identified any evidence of any such communication from Chief Harper or JFRMU to the field. Defendants identify testimony from officers who said they understood that the RCA output was only a recommendation to be considered and testimony that the advisory nature of the RCA output was discussed on monthly JFRMU calls. See Defs.’ Resp. ¶ 101. But communications stating that the RCA was only a recommendation or only one among many factors to consider is not the same as communications explaining to the field that the RCA would longer suggest release in any case. Communications of this latter sort did not take place. At least two FOJCs learned about the changes to the RCA outputs for the first time at their depositions. See, e.g., Barnes Dep. Desig. at 75:11–76:22; Galvez Dep. Desig. 90:1–16. And Chief Harper in fact later testified that there was never any official communication from ICE headquarters announcing the change to the RCA outputs and that she only learned of the change from speaking with officers who run the RCA tool. Trial Tr. at 3363:7–22 (Harper); see also Trial Tr. at 3363:20–22 (Hyde) (“The Court: Was there ever any communication from headquarters saying, hey, we made this change? The Witness: No, sir.”).
16 If Chief Harper meant only that she began telling or reminding FOJCs not to rely solely on the RCA—the Court makes no finding one way or the other on that.
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128. Chief Harper also testified at one point that the RCA tool was not used with age-outs because it no longer recommends release. Trial Tr. at 177:6–8 (Harper) (“Q: So now it says either detain or something like see your supervisor, correct? A: Yes, which is why we don’t use it with age-outs.”). This cannot be the case, because, even if the RCA recommendation was not relied on, the tool was undoubtedly “used with” age-outs, as Defendants admit in their briefing. Defs.’ Resp. ¶¶ 99–106. Chief Harper also testified otherwise, explaining near the end of trial that the tool is run in every instance as a matter of policy. Trial Tr. at 4320:14–20 (Harper).
129. ICE continued to cite RCA recommendations in monthly reports to Congress as a reason why age-outs were detained. In the first of ICE’s monthly reports to Congress summarizing age-out custody decisions, “RCA recommends detention” was the reason for detention for 46 of 93 age-outs, and no mention was made of the fact that the RCA tool, by that point, no longer recommended release. PX-153 (first monthly report to Congress); Trial Tr. at 340:7–342:2 (discussing the reporting requirements).
130. The Court finds that ICE FOJCs were never told by JFRMU that the RCA tool would no longer recommend releasing age-outs, and that FOJCs were—and remain—required to run the tool on each age-out and to take its recommendation under consideration, though not to rely only on the RCA tool in explaining a custody decision.
d. Sequential decision making 131. The “one-pager” flowchart—JFRMU’s only written guidance concerning Section 1232(c)(2)(B) outside of annual training—suggests that ICE officers should first determine whether an age-out can be released or is a flight risk, danger to the community, or danger to himself who must be detained, and second, consider the full range of alternatives to detention only if the answer is the age-out can be released. The flowchart instructs in one box that “FOJCs make a Custody Determination based on the totality of the circumstances” and in the next that
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“[i]f appropriate, FOJCs consider alternatives to detention programs based on Aged-Out UAC’s need for supervision.” PX-135 at 2 (emphasis added); see also PX-203 at 14 (same flowchart in 2019 Training presentation). The flowchart thus clearly implies that in at least some circumstances, it might not be appropriate to consider alternatives. Plaintiffs refer to this way of structuring the age-out custody determination as “sequential decision-making,” and Defendants do not appear to take issue with the terminology. Defs.’ Resp. ¶ 107.
132. Both Chief Harper and Officer Ravenell—another National Juvenile Coordinator in JFRMU—understood the flowchart as accurately reflecting the sequential decisionmaking process that FOJCs should follow when processing age-outs. Trial Tr. at 180:22–183:18; Ravenell Dep. Desig. at 149:5–152:24. Specifically, they both testified that, as reflected in the flowchart, FOJCs should first consider whether an age out is a danger to self, danger to the community, and that considering alternatives to detention “[i]f appropriate” meant considering them if the age-out was not determined to be a flight risk, danger to self, or danger to others at that previous step. Trial Tr. at 181:7–183:18; Ravenell Dep. Desig. at 151:13–152:24.
133. Relatedly, as Chief Harper testified, the ATD program (which covers a narrower range of options than the broader “alternatives to detention” mentioned in the statute, see supra ¶ 44 n.7) is “used as [a] mitigation factor,” and generally only considered as an option for ageouts whom ICE has already decided to release. Trial Tr. at 148:7–149:9.
3. Lack of Guidance 134. In a number of areas relating to age-out custody determinations and documentation, JFRMU (a) provides no training to FOJCs and SDDOs; (b) has no policy; and / or (c) has a policy that the issue is left to the unbridled discretion of individual FOJCs and SDDOs.
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a. Age-Out Review Worksheets 135. FOJCs never received any formalized training on the October 2018 version of the AORW, which was in use between October 2018 and August 2019. Trial Tr. at 420:5–7 (Harper); see supra ¶¶ 51, 58. FOJCs testified that they received no guidance or training aside from the memo introducing the AORW and some discussion on monthly phone calls. Munguia Dep. Desig. at 97:22–98:2; Barnes Dep. Desig. at 69:2–71:12; Black Dep. Desig. at 52:6–17; Trial Tr. at 2650:11–12 (Black); Trial Tr. at 2829:24–2830:1 (Munguia) (“[T]hey told us to review it; and that if we had any questions, we were supposed to call them.”). Defendants have not identified any guidance concerning the October 2018 AORW other than the email introducing the AORW and whatever was conveyed to the field during monthly JFRMU phone calls. Trial Tr. at 224:6–9 (Harper) (“I don’t know if I issued official policy guidance, but I know we began to discuss the age-out process and the documentation and VAWA on the monthly phone calls”); see Defs.’ Resp. ¶ 183. 136. The April 2019 version of the AORW, which FOJCs trained on during the April 2019 training in San Antonio, was never used in the field. Supra ¶ 59 (citing Trial Tr. at 419:24–420:3 (Harper); id. at 546:16–547:2 (Sanchez)). 137. As of the time of trial, the only additional written guidance FOJCs received concerning the August 2019 revised AORW was the two-page email introducing the revised worksheet, see DX-6, and guidance that might have been given during monthly phone calls or on a case-by-case basis in response to an FOJC affirmatively reaching out to JFRMU with questions. Trial Tr. at 534:10–535:9 (Sanchez); see also Trial Tr. at 2370:12–17 (Hormiga) (“I don’t believe we ever had any training on any worksheets.”). 138. Defendants argue that the August 2019 guidance introducing the revised AORW “was discussed on several JFRMU monthly phone calls,” but they cite only to testimony by
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Chief Harper stating in general terms what the monthly calls entail. Defs.’ Resp. ¶ 186 (citing Trial Tr. at 151:3–14). Defendants also argue more generally that during monthly phone calls “JFRMU provided training as to what individual items on the worksheets mean or how they should be completed.” Defs.’ Resp. ¶ 187. The testimony they cite again provides no detail about any particular instructions given or topics covered during the monthly phone calls, and instead consists only of general assertions about what kind of guidance is available during these phone calls. See id. (citing Trial Tr. at 46:24–47:13 (Harper), 387:4–25 (Harper), 420:8–13 (Harper), 534:10–13 (Sanchez)). Thus, there was no evidence presented that ICE ever provided guidance on critical issues relating to the AORWs, including, for example, what constituted an “other credible threat” in Item 8; whether one of the potential reasons in Item 8 had to be checked whenever an age-out was designated a flight risk or danger; what it meant for a sponsor to be “available”; what it meant to “evaluate” a discretionary release action like ATD or Bond; or what kind of justification an SDDO ought to provide for the ultimate decision.
b. Detention Alternatives 139. FOJCs are not formally trained on placing age-outs in ICE’s ATD program. Defendants dispute this finding, arguing that Plaintiffs highlight the testimony of only three FOJCs and that some FOJCs did place age-outs on ATD. See Defs.’ Resp. ¶ 188 (citing testimony by Chief Harper). By the Court’s count, the numbers are slightly worse for the Defendants. At least five FOJCs testified that they did not receive such training. See Hyde Dep. Desig. at 32:20–22; Barnes Dep. Desig. at 40:6–8; Hormiga Dep. Desig. at 83:11–18; Trial Tr. at 3715:14–17 (Irizarry); see also Trial Tr. at 2944:10–13 (Venegas) (indicating no written guidance on how to place an age-out on ankle bracelet monitoring). Three more testified that they understood the ATD program not to be an option for age-outs, at least in their AOR. Zanello Dep. Desig. at 117:6–9; Pepple Dep. Desig. at 178:3–4 (“ATD is not additionally used for age-
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out cases in this AOR [Chicago].”); Barnes Dep. Desig. at 40:16–22; see also Black Dep. Desig. at 180:23–181:9 (unaware that ankle bracelet monitoring, specifically, was an option); but see Trial Tr. 2515:13–15 (Black) (testifying at trial that she had released an age-out on an ankle bracelet, presumably at some point between her deposition and the trial).
The fact that some FOJCs managed to place age-outs in the ATD program (in many cases only after this litigation was ongoing for a year or more) does not establish that JFRMU trained them on how to do so. While ATD is mentioned as an option in certain training materials, including the “one-pager” flowchart, PX-135, and the FOJC handbook, DX-4 at 48, Defendants have identified no written evidence or testimony suggesting that JFRMU ever provided any formal or informal guidance on how FOJCs could actually go about putting an age-out on ATD, or on what circumstances might make doing so appropriate. To the contrary, as the abovereferenced testimony demonstrates, some FOJCs were confused about the use of the ATD program with age-outs. Chief Harper agreed that “field officers consider age-outs for participation in ICE’s alternative detention program only rarely, if at all.” Trial Tr. at 149:6–9 (Harper). Further, Defendants do not dispute that “several FOJCs were not even aware the ATD program was available to Age-Outs” or “ICE does not promote or require consideration of ATD when making custody determinations for Age-Outs.” See Defs.’ Resp. ¶¶ 152–53; see also Trial Tr. at 149:18–22 (Harper) (“[T]here has also been significant rotation of people into the FOJC position, and [the availability of ATD for age-outs] may not have been relayed to them.”).
140. To the extent FOJCs ever recommended placing age-outs in the ATD program—and this rarely happened, see infra ¶ 164—they only did so as part of the flawed sequential decisionmaking process that misunderstands how Section 1232(c)(2)(B) ought to be applied. Rather than treat the ATD program as an alternative to detention (lowercase), they treated it as
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an alternative to releasing an age-out on his or her own recognizance. Chief Harper testified that “the decision to put somebody on ATD is made after you release somebody” and agreed that “[FOJCs] make the decision whether you’re going to detain first.” Trial Tr. at 148:12–25; id.at 149:1–5 (“Q: And only if you decide you’re not going to detain and you’re going to release do you get to the question of looking at alternatives to detention such as release with ankle-bracelet monitoring, right? A: That is how the FOJCs do it.”). Officer Ravenell agreed that this decisionmaking structure, reflected in the “one-pager” flowchart, was the process FOJCs should follow. Ravenell Dep. Desig. at 149:5–152:24. This view of the program turns VAWA’s “continuum of alternatives” on its head. 8 U.S.C. § 1232(c)(2)(B).
141. FOJCs are not formally trained on releasing age-outs subject to an ICE Bond. Defendants “do not dispute that there has not been any written guidance on bond,” Defs.’ Resp. ¶ 189, but suggest that there has been some training during monthly phone calls. Chief Harper testified that ICE bonds had “been discussed at length,” Trial Tr. at 160:9, but she did not say when or where, and she was unable to identify any document other than the AORW itself in which “field officers were advised . . . concerning the use of ICE bonds with respect to ageouts.” Trial Tr. at 160:10–23 (Harper); see also id. at 160:8–9 (Harper) (“I don’t know if I’ve provided written guidance to them.”). In disputing this fact, Defendants cite testimony from Chief Harper and Officer Sanchez in which they described the wide breadth of topics discussed on JFRMU’s monthly phone calls to the field, but none of this testimony makes any reference to ICE Bonds, see Defs.’ Resp. ¶ 189 (citing Trial Tr. at 46:24–47:13 (Harper), 387:4–25 (Harper), 420:8–13 (Harper), 534:10–13 (Sanchez)), and Chief Harper did not mention the monthly calls when asked about training on ICE bonds, Trial Tr. at 159:12–160:14. Even if the Court credits Defendants’ weakly supported assertion that ICE bonds were discussed on monthly JFRMU calls
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at some point, the fact remains that no formal training on the topic took place, and the evidence indicates that ICE bonds are also rarely used with age-outs, see infra ¶ 168.
142. In one of the few instances where ICE Bonds were issued, they were issued by the Miami field office not as part of an alternative to detention intended to mitigate risk of flight, but instead $5,000 bonds were set as a prerequisite for release from ICE detention. Trial Tr. at 1313:22–1315:15 (Lehner); id. at 3935:10–16 (Reardon) (reviewing an AORW reflecting that Officer Reardon set a $5,000 ICE bond); id. at 3966:15–3967:6 (same, for another AORW). This practice is, again, the opposite of what the statute requires as it treats what could be a riskmitigating alternative to detention as only available if the age-out is already otherwise on track for release.
143. FOJCs are not trained or given guidance on releasing age-outs to shelters outside their AOR. See Trial Tr. at 3723:20–25 (Irizarry), 3867:14–3868:12 (Zanello).
c. Statutory Risk Factors 144. JFRMU does not train FOJCs on the factors that Section 1232(c)(2)(B) requires ICE to take into account when making age-out custody determinations. Put another way, FOJCs are not trained on what makes an age-out a flight risk, a danger to themselves, or a danger to the community. See, e.g., Trial Tr. at 424:13–425:1 (Harper) (no formal JFRMU training on any of these three factors); Id. at 666:16–22 (Sanchez) (“Q: So whatever the consideration is, just so [long as] you put it on the paper and tie it to one of the statutory factors, that’s sufficient? A: No, I’m not saying it’s sufficient, but if you could articulate in a clear and conscious way that when you read it you can understand what you are talking about, then you can go ahead and do it.”); Hyde Dep. Desig. at 124:1–9 (flight risk, danger to community), 124:17–20 (danger to self); Trial Tr. at 3363:23–3364:19 (Hyde) (all three factors); Black Dep. Desig. at 115:10–17 (flight risk), 115:18–116:5 (danger to self or community); Trial Tr. at 2653:11–2654:16 (Black) (same);
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Hormiga Dep. Desig. at 191:15–192:5 (flight risk, danger to community). Defendants argue that FOJCs are law enforcement officers who do not need specialized training on the meaning of these terms, but they do not dispute that FOJCs do not receive any training as to their meaning. Defs.’ Resp. ¶ 196.
d. Policies of Discretion 145. JFRMU defers to the discretion of FOJCs and SDDOs with regard to the outcomes of age-out custody determinations. Trial Tr. (Harper) at 54:2–55:2, 56:13–15, 64:3–7; Sanchez Dep. Des. at 18:1–16 (“[JFRMU] only look[s] at the documentation because the decision is solely up to the field.”). Chief Harper did not believe she had ever asked a field office or field officer that a custody determination needed to be changed, was incorrect, or not compliant with Section 1232(c)(2)(B). Trial Tr. (Harper) at 55:14–56:12; see also Trial Tr. at 513:1–14 (Sanchez) (agreeing that JFRMU reviews only the documentation, not the substance of custody determinations). At the 2019 annual training, FOJCs were instructed that “there is no right/wrong answer, but you should properly document your decision.” PX-54 at 22. Defendants explain this as a matter of ICE chain of command and hierarchy, but do not dispute that the substance of age-out custody determinations is not reviewed by JFRMU. See Defs.’ Resp. ¶¶ 208–09. 146. It is up to the discretion of the field officer whether to attempt to contact an ORR shelter in advance of an age-out’s 18th birthday to ask for a post-18 plan. Trial Tr. (Harper) at 86:14–23, 92:1–19; see also Ravenell Dep. Desig. at 41:12–18.17
17 The parties dispute whether Chief Harper’s testimony on this point was inconsistent. See Defs.’ Resp. at pp. 64–65. At trial she was asked whether “ICE encourage[s] its FOJCs to affirmatively reach out” to ORR for a post-18 plan, and initially responded affirmatively. Trial Tr. (Harper) at 85:21–24. Plaintiffs’ counsel then confronted her with testimony from her deposition in which she was asked “Should the FOJC contact the shelter in advance to request --
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147. JFRMU has no written guidance advising FOJCs to reach out to ORR about potential
sponsors to whom ORR did not release the age-out, Ravenell Dep. Desig. at 35:5–12, and no
written guidance concerning whether FOJCs should attempt to identify or verify sponsors on
their own, id. at 41:12–42:22, including by reviewing information available on the age-out’s
form I-21318, id. at 49:11–50:14.
148. ICE leaves it entirely up to the discretion of the field officer whether to interview or
speak with an age-out on or before the age-out’s eighteenth birthday, either in order to ask about
or attempt to identify potential sponsors or for any other reason. Trial Tr. at 93:22–94:15
(Harper); Ravenell Dep. Des. at 46:18–47:1.
149. It is likewise entirely up to the field officer’s discretion whether to contact a potential
sponsor identified in a post-18 plan, Trial Tr. (Harper) at 88:7–19, 93:4–10, to try to identify a
sponsor if none is provided or if a proposed sponsor is deemed unsuitable, id. at 93:13–16,
190:12–18, or to acknowledge, respond to, or follow up on communications received from
in advance of the child’s 18th birthday to request the post-18 plan” and responded “I wouldn’t say they should do that. The burden for the post-18 plans falls on ORR.” Id. at 86:2–13 (citing Harper 5/2/2019 Dep. Desig. at 12:14–18). Asked again whether “ICE encourage[s] its FOJCS to affirmatively reach out, Chief Harper responded in the negative. Id. at 86:14–17. Defendants note, correctly, that the question Chief Harper was asked at trial was not the same as the question Plaintiffs’ counsel read from her deposition testimony. Defs.’ Resp. at p. 65. At the same deposition, however, the question immediately following the one Plaintiffs’ counsel confronted Chief Harper with at trial was the same question from trial regarding whether “ICE encourage[s] its FOJCs to affirmatively reach out,” and Chief Harper responded “ICE doesn’t make a recommendation either way.” Harper 5/2/2019 Dep. Desig. at 12:19–13:1. So, while Chief Harper was not confronted with the most precise excerpt from her deposition, she did change her testimony at trial to become more consistent with her deposition testimony—and more consistent with Officer Ravenell’s testimony.
18 A form I-213 records a narrative of ICE’s experience with a UAC or other alien, and begins by explaining the circumstances in which they were encountered, whether by ICE or by Customs and Border Patrol. It includes information such as where a UAC was headed and who, if anyone, the UAC called on the phone when he or she was apprehended. See Ravenell Dep. Desig. at 48:15–49:23; Trial Tr. at 969:21–970:5 (Hyde); Pepple Dep. Desig. at 33:8–20.
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attorneys or advocates for age-outs that request release or propose sponsors, id. at 88:20–91:2519; Ravenell Dep. Desig. at 37:24–38:6; see also id. at 36:15–19 (agreeing that ICE has no requirements “with respect to what an FOJC should do when someone provides him or her with the name of a potential sponsor”).
150. ICE generally requires that a proposed sponsor be deemed “viable” before ICE will release an age-out to that sponsor. Trial Tr. at 130:6–11 (Harper); see also PX-334A (summary of AORWs indicating that “no viable sponsor” was identified as the reason for detention for over 100 age-outs between October 2018 and May 2019).
151. JFRMU and ICE have no “set or written requirements” for what makes a proposed sponsor viable or suitable; viability is left up to the discretion of individual FOCJs and SDDOs. Trial Tr. at 130:23–131:11 (Harper); Harper 5/2/2019 Dep. Desig. at 22:1–23:3; see also Ravenell Dep. Desig. at 44:17–45:4 (confirming the lack of written guidance on steps FOJCs should take to identify or vet sponsors, and that this topic was not addressed at the April 2019 training); id. at 57:11–14 (“ICE is not responsible for finding sponsors, so . . . we wouldn’t have any policy, procedures, in order to determine whether [a sponsor] is viable or not). After eighteen days of trial, it is still unclear to the Court how ICE defines a “viable sponsor.”
152. It is “up to the discretion of individual officers and field officers whether to use ATD,” and JFRMU does not monitor the extent to which they do so. Trial Tr. at 157:22–158:2 (Harper).
19 During questioning on this third point, Chief Harper was confronted with testimony from her deposition and Plaintiffs argue that she changed her testimony at trial in response. See Pls.’ Br at 35 n.2. Defendants argue the testimony was not inconsistent. Defs.’ Resp. at p. 65. The Court agrees with Defendants with regard to this particular line of questioning. While Chief Harper’s answers at trial were more nuanced than those she gave at her deposition, they were not so different as to damage her credibility on this issue.
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D. Outcomes at the Field Office Level 1. Exercises of Discretion a. Sponsors
153. Officers in JFRMU take the position that ORR, not ICE, is responsible for identifying potential sponsors. Trial Tr. at 74:3–20, 76:15–77:3 (Harper); Harper 5/2/19 Dep. Desig. at 43:7–17 (agreeing that “the officer’s only obligation is just to consider what somebody else provides” and that “ORR is responsible for identifying potential sponsors”); Trial Tr. at 573:7–9 (Sanchez); Ravenell Dep. Desig. at 36:15–37:9; see also PX-270 at 1 (Chief Harper email to Miami field office stating “VAWA . . . doesn’t convey an affirmative responsibility onto ICE to find group homes or sponsors”).
154. ORR has different and higher standards that it applies when considering potential sponsors for UAC than ICE has when it considers sponsors for adults. Before HHS and ORR can release a UAC to a proposed sponsor they are required by Section 1232(c)(3)(A) to “make[] a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). This inquiry must “at a minimum, include verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” Id.; see also id. § 1232(c)(3)(B) (requiring more extensive home studies for proposed sponsors of children with certain particular vulnerabilities or traumatic histories). Nothing in the TVPRA or VAWA sets similar requirements for ICE. Officer Ravenell explained that this is because immigrants who have aged out of ORR custody are, at that point, adults. Ravenell Dep. Desig. at 58:10–18 (“Q: And to your knowledge, ICE doesn’t have requirements with respect to the suitability of sponsors for adults, correct? A: If you’re an adult, you’re an adult . . . [W]e don’t go out looking for sponsors, we don’t go out checking to
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see what type of individuals they are. We don’t have to do suitability checks for sponsors.”); id. at 58:22–24 (“If you’re an adult, you’re 18, it’s not ICE’s responsibility to do suitability checks for where you’re going to live.”).
155. As discussed, JFRMU takes the position that it is up to individual field officers whether to communicate with ORR regarding potential sponsors for age-outs, supra ¶¶ 146–47, and that it is up to individual officers whether to seek out or attempt to identify potential sponsors, supra ¶¶ 148–49, or to request a post-18 plan, supra ¶ 146.
156. Defendants have intimated, if not directly argued, that differences in detention rates between field offices may be attributable at least in part to whether post-18 plans are generally received by FOJCs in those field offices that detain at higher rates. Compare, e.g., Defs.’ Br. FF ¶¶ 263–65 (explaining that the San Antonio field office generally received post-18 plans a sufficient amount of time in advance of the age-out’s eighteenth birthday), with id. ¶¶ 321–23 (explaining that this is not the case for the Houston office); id. ¶ 456 (explaining that the New York City office “would not always receive Post-18 Plans”); and id. ¶ 535 (explaining that the Miami office did not reliably receive post-18 plans before a certain point). Plaintiffs dispute Defendants’ proposed findings regarding the Houston and Miami offices. See Defs.’ Resp. ¶¶ 321–23, 535; see also id. ¶ 456 (conceding that Officer Hyde so testified but not conceding the truth of the matter). Even assuming, however, that offices detaining at higher rates were those that did not receive post-18 plans, this would only show a correlation, not a causal effect. Cf. Trial Tr. at 2048:23–2049:25 (Lenzo) (Defendants’ counsel making the point that correlation does not equal causation).
Further, even if there were a causal relation between high detention rates and a lack of post-18 plans, it is far from clear which would be more likely to cause the other. For example,
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during a time period when El Paso was detaining most of its age-outs, the SDDO in that office had limited what kinds of materials ICE would accept from legal services and required hard copy delivery of these materials rather than submission via email. See infra ¶¶ 248, 250. At least one legal services provider found fulfilling these onerous requirements “pretty time-intensive” and “ultimately . . . made a decision that [they] just couldn’t afford the time to submit packets anymore” given that even the strongest cases for release “continued to get denied.” Trial Tr. at 1509:25–1510:10 (Escontrias). Officer Pepple from the Chicago office testified that he began receiving more post-18 plans when he started releasing more age-outs and reaching out to ORR and ORR contractors for names of potential sponsors. See infra ¶ 238. It stands to reason that ORR and third parties may have seen no reason to waste time submitting post-18 plans to offices that would detain all their age-outs regardless. If a causal relationship exists between submission of post-18 plans and detention rates, it strikes the Court that this causal relationship may plausibly run in either direction.
157. In many instances, ICE does not release an age-out to a proposed sponsor because the sponsor fails to meet criteria set by ORR for release of a UAC—as opposed to an age-out—from ICE custody to a sponsor. For instance, at one time, ORR required that sponsors and members of sponsors’ households be fingerprinted before an age-out could be released to them. Trial Tr. at 143:18–146:4 (Harper) (describing a memorandum of understanding between ICE and ORR which, from roughly April 2018 through December 2018, had required fingerprinting all members of a sponsor’s household before a UAC could be released); id. at 399:10–23 (Harper) (describing types of people that ORR no longer requires fingerprints from, including “[p]eople that claim to be adult siblings or grandparents” and “other adult household members”); see also id. at 878:3–879:23 (Enriquez) (third-party legal services provider describing his experience with
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ORR fingerprinting requirements); id. at 2629:9–25 (Black) (testifying to her awareness that ORR sometimes requires fingerprints but that ICE does not have a fingerprinting requirement); id. at 3266:13–23 (Hyde).
A number of age-outs were detained by ICE because the age-out did not have a “viable sponsor” when ORR did not manage to complete its fingerprinting check on a potential sponsor, despite ICE not having such a requirement. See, e.g., Reardon Dep. Desig. at 216:10–217:24; PX-211 at 8 (age-out memo from HHS to ICE indicating the case manager “was unable to have [a] new household member fingerprinted on time before [UAC] aged out”); Trial Tr. at 3791:17– 20 (Zanello) (“[I]f ORR had already vetted a potential sponsor, we didn’t need the specifics, we would just need to know yes, that sponsor works, no, that sponsor doesn’t, so we can move on.”); Zanello Dep. Desig. at 212:21–214:1 (discussing PX-211); Hyde Dep. Desig. at 287:1–288:21 (discussing PX-74); id. at 289:8–290:9 (same); Galvez Dep. Desig. at 314:15–315:8, 318:6– 320:1 (referencing PX-40); see also, e.g., Black Dep. Desig. at 159:7–161:21 (reviewing PX-16 at 55, 60); Reardon Dep. Desig. at 111:24–112:1 (“Q: So the mother was the proposed sponsor and the only holdup was fingerprinting of her? A: Yes.”); Trial Tr. at 3966:11–14 (Reardon) (“Q: So your understanding is that for a sponsor to be available within the meaning of item 12 [on the AORW], ORR has to have completed their vetting or approved that sponsor, correct? A: Yes.”); PX-335.16133–16135 (AORW from Los Angeles field officer recommending detention and noting that “shelter staff was unable to locate any potential sponsors”); id. at .14767–810 (AORW from Los Angeles field officer recommending detention and noting that a potential sponsor did not participate in ORR reunification efforts).
158. Another way in which ICE applies ORR standards for release of UACs to adult ageouts is by viewing an age-out as a flight risk based on his or her having spent an extended period
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of time in ORR custody as a child. See supra ¶ 114 (citing, among other evidence, PX-155 at 4 (email from Chief Harper stating “One big factor [regarding detention] is the amount of time that ORR has a minor and hasn’t been able to find anyone to release them to. That in and of itself indicates a lack of ties and flight risk.”)). In Houston, for example, Officer Mason approved detention of an age-out who had been in ORR custody for 157 days and for whom ORR had prepared a post-18 plan recommending placement at a group home. See PX-4; Trial Tr. at 3058:23–3063:22 (Mason) (discussing PX-4). Officer Mason explained that, notwithstanding ORR’s recommendation, “[o]ne big concern that [ICE] had with this case is if they do have a sponsor that has already said they would take him then why didn’t ORR release him[?]” Trial Tr. at 3061:18–20 (Mason); see also id. at 3190:16–3191:14 (Hyde) (“That’s an indicator that they were not able . . . to find someone or someplace for the potential age-out.”); id. at 3221:6– 11 (Hyde) (“It’s telling me that they have been in there for an extremely long time, and ORR has not been able to find someone for that length of time for sponsorship.”); Hormiga Dep. Desig. at 171:15–172:8, 176:18–20 (testifying that he considered an age-out to be a flight risk because “she had been in custody for 151 days, and her uncle [a proposed sponsor] had the opportunity to come forward and go through the process and have her released, and apparently, he didn’t,” id. at 171:17–20, but also that he did not recall contacting ORR about the uncle); Trial Tr. at 2878:5– 16 (Venegas) (“When you see an age-out pass a certain time frame, say 30 to 40 days [in ORR custody], . . . that’s one of the factors that I would take into account in determining to detain or not detain.”).
159. The Miami field office went even further and developed a “local ICE requirement” that, in order to be deemed valid, sponsors not only needed to show proof of U.S. citizenship or lawful status but also needed “proof that they had ties to the community, like through a utility
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bill [or] an affidavit of support.” Trial Tr. at 3925:10–24 (Reardon). When Chief Harper and JFRMU staff visited the Miami office they informed that office that there was “no legal basis” for these requirements. Id. at 3961:9–17 (Reardon).
160. Chief Harper also believed that, in situations where ORR was aware of a sponsor but had not released an age-out to them, that sponsor was presumably not viable. In April 2018, she sent an email asking her JFRMU staff to find out more information concerning the Washington D.C. field office’s decisions to release four out of five age-outs in February 2018. See generally PX-55; see also Trial Tr. at 291:24–296:9 (Harper) (beginning discussion of PX-55). For three of the age-outs, ICE had released to sponsors that had been known to ORR for some time, but to whom ORR did not release the age-outs. PX-55 at 4; Harper 5/2/19 Dep. Desig. at 308:8–310:7. Chief Harper “wanted to know what information [the FOJC] had that ORR didn’t have.” Harper 5/2/19 Dep. Desig. at 309:10–11. Chief Harper’s question demonstrates that she at least did presume that a sponsor to whom ORR had not released an age-out had at least uncertain viability, unless some facts on the ground, unknown to ORR, had changed.
Chief Harper agreed at her second deposition that the fact that ORR does not place a UAC with a sponsor does not mean there is no viable sponsor at the time that the UAC becomes an age-out. Harper 5/2/2019 Dep. Desig. at 62:2–7. She answered the same question evasively at trial and was impeached with her prior testimony. Trial Tr. at 141:22–142:18 (Harper). Given her inconsistent testimony, the Court finds that the position suggested in her April 2018 e-mail was more likely her actual stance on the question.
161. Officer Galvez took the same view. He testified that a sponsor recommended by ORR but not vetted and approved by ORR would still have to be vetted in some way. Galvez Dep. Desig. at 312:15–314:13.
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162. With no obligation to identify sponsors on their own and ample discretion regarding whether to communicate with the office—ORR—that is expected to identify sponsors, many FOJCs do not release age-outs to sponsors unless ORR has already gone through the work of verifying or approving placement with the sponsor. See, e.g., Barnes Dep. Desig. at 44:11–23 (testifying that he was unaware of any situation where an age-out was released to an individual or organizational sponsor “identified and/or arranged for by ICE”); Galvez Dep. Desig. at 68:2– 18 (testifying that in his experience, only the ORR case manager arranges for a sponsor); Hyde Dep. Desig. at 55:20–56:6 (testifying that ICE does not “attempt to identify places where th[e] age-out . . . could live”); Hormiga Dep. Desig. at 80:10–17 (testifying that calling organizational sponsors is “not what we do” and “just not in our job description.”); id. at 87:19–88:5; Trial Tr. at 3023:16–20 (Mason) (agreeing it is “not the FOJC’s job to look for an organizational sponsor” if the age-out does not have one on his 18th birthday); Reardon Dep. Desig. at 59:2–13; Trial Tr. at 3232:7–10 (Hyde); see also Sanchez Dep. Desig. at 324:8–12 (testifying she was not aware of “an instance where the FOJC found a sponsor for an age-out that had not been identified by ORR or an advocate”); Pls.’ Resp. FF ¶ 127 (confirming that this is consistent with Defendants’ understanding of ICE’s jurisdiction); see also Trial Tr. at 3865:11–19 (Zanello) (testifying she has only placed age-outs with a particular organizational sponsor when attorneys have provided her with a letter from that sponsor, never on her own initiative).
163. In a number of offices, ICE’s refusal to take any action by way of investigating, vetting, or verifying sponsors20 means that age-outs are essentially never released to sponsors when they turn 18 unless ORR has done all, or nearly all, the vetting it normally requires and has
20 With no official policies in this area, the language used to describe what needed to be done with regard to sponsors tended to vary from office to office and officer to officer.
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made any necessary arrangements. At these offices, if ORR has not released the UAC to a sponsor by the time they turn eighteen, the age-outs will, with near-certainty, be placed in adult detention on their eighteenth birthday when they are transferred to ICE custody, even if sponsors have been identified. See infra ¶¶ 182–184 (Houston), 196 (Miami), 210–211 (New York City), 249 (El Paso).
b. Detention Alternatives 164. As attested by ICE’s 30(b)(6) witness on the ATD program, Eric Carbonneau, the ATD program can mitigate a risk of flight, and age-outs are eligible for the program (unless they intend to live in certain rural areas). Carbonneau Dep. Desig. at 23:12–53:2, 80:12–21, 115:13– 116:7. Some officers do place age-outs on ATD. Officer Jones in Los Angeles, for example, has released age-outs on ATD several times and agreed that ATD could mitigate risk of flight and would consider it if risk of flight was the only concern. Trial Tr. at 4271:22–4272:21 (Jones). 165. ICE does not train its field officers on placing age-outs into the ATD program and, to the extent officers nonetheless know how to do so, it is up to their discretion whether they choose to place age-outs in the ATD program. See supra ¶¶ 139, 152. 166. Overall, as Chief Harper agreed, “field officers consider age-outs for participation in ICE’s alternative detention program only rarely, if at all.” Trial Tr. at 149:6–9 (Harper). Defendants do not dispute that “the evidence at trial was overwhelming and undisputed that the ATD program is almost never considered as an alternative to detention for Age-Outs.” See Defs.’ Resp. ¶ 149 (citing, inter alia, Trial Tr. at 2785:7–8 (Munguia) (“Q: Do you ever consider ATD? A. No.”); id. at 2908:24–25 (Venegas) (“Q: And ICE in Harlingen have an ATD program for age-outs? A: Not in the Harlingen office, we do not.”); id. at 2990:6–8 (Mason) (“Q. Has your office ever released an age–out to the ATD program? A. No, we haven’t.”); id. at 3339:12– 16 (Hyde) (testifying she was not aware of a juvenile being released on ATD from the New York
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office in the past ten years); id. at 3715:11–13 (Irizarry) (testifying he had never released an ageout to the ATD program); id. at 3873:6–8 (Zanello) (same); Hormiga Dep. Desig. at 84:1–4; Pepple Dep. Des. at 23:6–10; Reardon Dep. Des. at 12:6–13); see also Trial Tr. at 3339:7 (Hyde) (“I have never considered ATD, correct.”). And, as noted, supra ¶ 139, several FOJCs were not aware that ATD was an option for age-outs.
167. From the date that the AORW and SharePoint system was instituted—October 17, 2018—through the close of discovery on May 24, 2019, just 34 of 1,360 age-outs processed by ICE were placed on ATD (2.5%). Harper 8/29/19 Decl. ¶ 7, ECF No. 204-1; see also Defs.’ Resp. ¶ 150 (not disputing these figures).
168. ICE bonds are likewise rarely used by field officers making age-out custody determinations. Defendants do not dispute that most field offices do not release age-outs on ICE bonds and that those offices that do often do so only where an age-out or family member has specifically requested one. Defs.’ Resp. ¶ 155; see Trial Tr. at 161:17–163:1 (Harper) (testifying it would not be surprising to learn that field officers from some of the largest field offices testified they had never released an age out on an ICE bond); Munguia Dep. Desig. at 88:15–24; Trial Tr. at 2824:7–10 (Munguia); Hyde Dep. Desig. at 144:6–145:10; Trial Tr. at 3339:24– 3340:12 (Hyde); Barnes Dep. Desig. at 79:9–15; Pepple Dep. Desig. at 45:13–23, 47:2–5; Reardon Dep. Desig. at 69:22–70:1; Galvez Dep. Desig. at 80:15–81:10; Black Dep. Desig. at 46:17–24 (testifying she was not sure when issuing an ICE bond would be appropriate); Trial Tr. at 2909:3–7 (Venegas); id. at 3681:10–11 (Irizarry); id. at 3873:15–20 (Zanello).
169. On 51.8% of the AORWs produced in this litigation, the officer who filled out the form indicated that no consideration was given to releasing on OREC or OSUP, placing the age-
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out on ATD, or using an ICE Bond. Trial Tr. at 1654:3–6 (Horton); see supra ¶ 56, subparagraph n (describing Item 14 on the AORW).
c. Release After Detention 170. Persons in immigration detention have a right to have their bond determined or redetermined before an immigration judge. Trial Tr. at 1774:2–5 (Vinikoor). Plaintiffs presented expert testimony from retired Immigration Judge Robert Vinikoor concerning these types of proceedings. Id. at 1774:24–1775:5 (Vinikoor). 171. Immigration judges making a bond redetermination “consider[] almost identical factors” to those considered by ICE in making an age-out custody determination. Id. at 1780:6– 16 (Vinikoor). The relevant immigration regulation requires that a detained immigrant seeking release has the burden of “demonstrat[ing] to the satisfaction of the [immigration judge] that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. §§ 236.1(c)(8). Judge Vinikoor explained that in his expert opinion, because the factors considered are so similar to those in Section 1232(c)(2)(B), “[t]he release of an age-out by an immigration judge on bond is compelling evidence that the age-out was not a danger to the community or significant flight risk at the time ICE placed the individual in custody.” Trial Tr. at 1780:6–9 (Vinikoor).
Defendants dispute the fact that the standards overlap only partially and, even then, ineffectively. First they quibble with Judge Vinikoor’s use at trial of the phrase “critical overlap,” id. at 1780:11 (Vinikoor), and claim that the overlap is not “critical.” Defs.’ Resp. ¶ 261. The plain text of the two provisions make clear that two of the three statutory factors are encompassed in the regulation’s standard. This overlap is significant, regardless of whether it is properly described as “critical.” Second, Defendants note that “§ 1232(c)(2)(B) contains an entirely additional factor, ‘harm to self,’” which is not mentioned in the regulation. Id. Leaving
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aside the fact that the statutory factor is “danger to self” not “harm to self,” § 1232(c)(2)(B), the absence of this factor does not meaningfully undermine the point that an immigration judge evaluates factors very similar to those evaluated by an FOJC. Relatively little testimony at trial focused on the “danger to self” factor, and there is no reason to think that ICE was detaining many age-outs specifically because they were dangers to themselves.21 In fact, ICE’s SharePoint system, which asked FOCJs to identify a reason for detention of each age-out they detained, did not provide an option for “danger to self,” and it was therefore not identified in the system as a reason for detention for any of the 363 age-outs detained between August 2018 and April 2019 for whom ICE provided SharePoint data. Defs.’ Resp. ¶¶ 596–97 (not disputing this); see also PX-505 (SharePoint data in excel format). This goes to show that ICE did not consider this factor particularly important, and immigration judges’ lack of obligation to consider it does not make the standard they apply meaningfully less comparable to the standard applied by FOJCs.
An immigration judge’s evaluation is also different in that they are typically determining or redetermining a bond amount for a detained immigrant. This again does not make the immigration judge’s evaluation incomparable to the FOJC’s because the FOJC also has the option of setting bond and releasing an age-out subject to that bond.
172. Of the 1,342 age-outs detained by ICE between January 1, 2018 and May 24, 2019, sixty-two percent (446 in total) were subsequently released on bond by an immigration judge. Trial Tr. at 1951:10–13 (Lenzo) (discussing Pls.’ Demo Ex 9, which summarizes relevant data from PX-399 and PX-400). Defendants dispute the conclusions Plaintiffs draw from this fact, but do not dispute the numbers. See Defs.’ Resp. ¶ 260.
21 Officers in two field offices suggested that age-outs are dangers to themselves if they have no place to live. The Court has explained why it doubts this was a genuine explanation for these offices’ detention decisions. Supra ¶ 121.
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173. This means that a high proportion of age-outs were released by immigration judges applying a standard similar to the standard applied by FOJCs, with two notable differences: danger to self was not taken into account, and the burden was placed on the former age-out to demonstrate lack of danger to the community and lack of flight risk. The Court finds this release rate significant, and views it as meaningful evidence that the FOJCs were not properly considering the factors laid out by the statute.
Judge Vinikoor agreed with this conclusion. See Trial Tr. at 1796:9–20 (“[T]his is compelling evidence that they weren’t a danger to the community or flight risk at the time they were taken into custody.”). Defendants challenge Judge Vinikoor’s qualifications to offer this opinion because he was not sure he had ever held a bond redetermination hearing for an age-out, because former age-outs could bring new evidence to their bond hearing, because facts may have changed between the initial custody determination and the bond hearing, and because immigration judges can reach different conclusions on the same set of facts. Defs.’ Resp. ¶ 260. The Court finds none of these arguments compelling. First, while the Court found Judge Vinikoor to be a credible and helpful expert witness, his view of these facts only supports conclusions that the Court could have reached on its own. Expert testimony is not required for the Court to compare the standard set in Section 1232(c)(2)(B) with the standard set in the immigration regulations, nor is it required for the Court to review the parties’ summary of the rate at which detained age-outs were later released by immigration judges. It is helpful to know that the high rate of release caused Judge Vinikoor to question the thoroughness of the initial custody determinations, but the Court could have reached that conclusion on its own.
As for the possibility of changed circumstances or new evidence, that argument is speculative and does not significantly diminish the persuasiveness of the comparison.
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Defendants do not support their suggestion with any specific examples. Moreover, it is counterintuitive. It is unclear how former age-outs could reduce their danger to the community or risk of flight while in adult detention—they are unlikely to establish community ties or change their criminal history or gang affiliations while locked up. As for danger to self, no evidence was presented that former age-outs receive better or more effective psychological or psychiatric care while in adult detention than they were able to receive in an ORR facility (and the Court deems that scenario unlikely)—and very few age-outs fall in this category anyway.
Finally, the possibility that two different immigration judges exercising discretion could reach different conclusions on the same set of facts, see Trial Tr. at 1828:10–15 (Vinikoor), is obvious and irrelevant. One or two instances of an immigration judge disagreeing with an FOJC’s detention recommendation could be disregarded on this ground, but when immigration judges disagree with FOJCs sixty-two percent of the time, despite placing a higher burden on the immigrant, this scale of systematic disagreement suggests something more than reasonable decision-makers reaching different conclusions.
2. Age-Out Detention Rates by Field Office 174. Historically, ICE field offices have detained age-outs at varying rates, with some detaining all or nearly all age-outs, some releasing all or nearly all, and others with results that fall somewhere in between or swing from one extreme to the other. As will be explained, these differences in detention rates can be seen in the ERO Custody Management Division data produced by Defendants, PX-345, and summarized by Plaintiffs in PX-334 and PX-334A.
At trial, Plaintiffs also established the variations in field office detention rates by showing a series of Rule 1006 summary graphs and charts. See Pls.’ Demo. Exs. 21A, 22A, 23A, 24A, 25A, 26A, 27A, 28A, 28B, 28C, 68 (“the Rule 1006 Summaries”); see also Fed. R. Evid. 1006
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(allowing the use of “a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.”). Each is a line graph that charts, for each month, the percentage of age-outs encountered at one or more field offices. They summarize the information contained in Defendants’ raw data, PX-345.
Defendants objected to the use of these summaries at trial, e.g. Trial Tr. at 1918:19– 1919:16, and have renewed their objection that the Rule 1006 Summaries were not timely produced to them by Plaintiffs and thus should not be admitted, Defs.’ Resp. ¶ 219. The Court has already ruled on the admissibility of the Rule 1006 Summaries in a Minute Order dated January 19, 2020. Min. Entry (Jan. 9, 2020); see also Min. Entry (Feb. 19, 2020) (clarifying prior Minute Order). The Court noted that the Government had not argued that the Rule 1006 Summaries were inaccurate or otherwise not proper summaries of the data. Min. Entry (Jan. 9, 2020). The Court agreed that the Summaries were produced and updated after the deadline for exhibits, but found it equitable to extend the deadline for this limited purpose. Id. Defendants had also updated their own production after the deadline, and admitting Plaintiffs’ demonstratives as Rule 1006 Summaries was not prejudicial to Defendants because Plaintiffs had timely produced nearly identical versions of the Summaries and because the Court did not see how Plaintiffs’ cross-examination at trial would have been different had they known the materials would be admitted as demonstratives rather than as substantive evidence. Id. Defendants do not identify any errors in this analysis and the Court stands by it.
Defendants also argue that the Rule 1006 Summaries are visually misleading in a few ways. Pls.’ Resp. FF ¶ 219. They argue the graphs are misleading because they do not show the number of age-outs processed each month, but only the percentage of age-outs detained. This is not a serious concern because the Summaries prominently state that they depict the “Monthly
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Detention Rate,” (emphasis added), not absolute figures. Defendants also argue that the Plaintiffs have misleadingly drawn a line through “100%” rather than “0%” on the charts’ y-axis for months where a field office processed no age-outs. Id. (citing Pls.’ Demo. Exs. 25A, 26A, 27A). Again, the Court finds the summaries are clear enough, as the charts include a star on the lower boundary of the y-axis for these months. The Court appreciates that in creating a summary of voluminous data, decisions must be made regarding how to represent certain nuances, and finds the Plaintiffs’ design choice reasonable and easy enough to bear in mind when reviewing the charts. The rate for these months is nonexistent, so indicating 0% would have been just as inaccurate as indicating 100%. The summaries qualify under Rule 1006, and Plaintiffs and their expert have explained what they do and do not reflect. The Court has not relied on the Rule 1006 Summaries as substantive evidence, though it finds them to accurately represent the underlying data.
175. Eight of the ICE field offices discussed at trial have rates of age-out detention that the Court found significant in one way or another. Three demonstrated consistently high average rates of age-out detention: Houston, Miami, and New York City. See infra ¶¶ 176–214. One field office demonstrated a consistently low average rate of age-out detention: San Antonio. See infra ¶¶ 215–223. Four demonstrated extreme shifts in age-out detention rate: El Paso, Harlingen, Chicago, and San Francisco. See infra ¶¶ 225–259.
a. High Average Detention Rate i. Houston
176. Between April 2016 and May 24, 2019, the ICE field office in Houston detained 515 of 538 age-outs it processed (96%). PX-334 at 43–53; PX–334A at 147–184. In no month did
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the Houston office detain fewer than 80% of the age-outs it processed.22 Id. Between October
17, 2018 and May 24, 2019—the portion of the discovery period during which ICE was using the
AORW documentation system—the Houston office detained 97% of age-outs it processed. PX-
334 at 50–5323; PX-334A at 147–84; see also Pls.’ Demo. Ex. 24A.24
177. Officer Barnes was the lead FOJC in Houston from 2015 through October 2019,
when Officer Hormiga became the lead FOJC. Barnes Dep. Desig. at 8:17–18; Hormiga Dep.
Desig. at 27:4–11. Officer Mason was the SDDO in Houston during this entire time period.
Barnes Dep. Desig. at 8:18–25; Hormiga Dep. Desig. at 24:5–10. The officers’ testimony
described procedures that could be expected to yield a very high detention rate.
178. Officer Barnes could not recall any age-outs he encountered that he did not view as
flight risks. Barnes Dep. Desig. at 149:6–12. He never released an age-out on his or her own
22 This statistic alone belies Defendants’ suggestion that the Houston office’s high detention rate was the result of a “surge” or “influx” of UACs in 2018. See Defs.’ Br. FF ¶¶ 313–15; see also Trial Tr. at 2959:18–23 (Mason) (suggesting that the Houston office lacked sufficient FOJCs during an “influx”). The detention rate there was consistently high for years— both before and after any temporary increase. Further, the Houston office has never had fewer than four FOJCs, see Trial Tr. at 2959:5–10 (Mason), and processed an average of fourteen ageouts per month, PX–334A at 147–84. The San Antonio office had the same number of FOJCs, and processed the same average number of age-outs per month. See Trial Tr. at 2754:21–23 (Munguia); PX-334A at 329–66. That office was able to release nearly every age-out they processed, despite having the same ratio of personnel to age-outs. Infra ¶ 215.
23 PX-334 lists age-outs processed by each field office, sorted by their dates of birth. In order to translate this data in to date ranges for age-out processing, the Court has assumed, based on the testimony presented at trial, that each age-out was processed by ICE on his or her eighteenth birthday.
24 Defendants agree that these statistics are “by and large,” accurate. Defs.’ Resp. ¶ 354. In their own proposed findings of fact, they argue that Plaintiffs incorrectly count 137 age-outs handled by the Houston office during the AORW time period, when in fact the number is only 134. See Defs.’ Br. FF ¶ 325 n.1. Plaintiffs disagree. See Pls.’ Resp. FF ¶ 325. Neither party meaningfully disputes the figures its adversary presents for the Houston office. See id.; Defs.’ Resp. ¶ 354. Because a difference of three either way would not change the agreed-upon fact that the Houston office detained nearly all its age-outs, the dispute over these three cases is not material and the Court need not resolve it.
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recognizance, id. at 28:11–13, and could not remember anyone else in his field office having done so, id. at 43:11–14. He could not identify a single age-out released by the Houston field office who was not a woman with a child or a person with a serious medical issue. Id. at 135:10– 16.
179. In a number of AORWs reviewed at his deposition, Officer Barnes had indicated that the age-out was a flight risk despite checking “no” for each of the specific characteristics in Item 8 that would make an age-out a flight risk (Terrorist Affiliation or Ties; Criminal/Delinquency History; Gang Affiliation; Escapes/Non-compliance History; and Other Credible Threat). See generally id. at 277:13–332:17 (reviewing AORWs).
180. Office Barnes filled in identical answers on a number of AORWs, and testified that he may have been using a completed AORW as a template from which he created additional AORWs for other age-outs. Id. at 138:2–5, 141:17–25.
181. Officer Barnes was unable to identify a single factor that might prevent an age-out from coming into ICE custody. Id. at 247:1–24, 249:15–22.
182. The Houston office also failed to follow ICE’s requirements for documenting age-out custody determinations. For more than thirty age-outs processed by the Houston office between October 17, 2018 and May 24, 2019, no AORW was uploaded to the SharePoint Database. Trial Tr. at 2995:18–21, 2997:10–14. Officer Hormiga acknowledged that six of the twenty-four AORWs with his name on them had been edited by someone else, and that he had not filled out twelve of them in the first place. Hormiga Dep. Desig. at 304:19–305:10.
183. The Houston field office made little to no effort to identify potential sponsors for ageouts. SDDO Mason testified that it is not an FOJC’s job to look for organizational sponsors when a UAC turns eighteen without having been released by ORR. Trial Tr. at 3023:11–20
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(Mason). Officer Hormiga, the primary FOJC in Houston, and Officer Barnes, his predecessor in that role, both agreed. Hormiga Dep. Desig. at 80:7–17; Barnes Dep. Desig. at 44:11–23. Officer Hormiga views his role with regard to sponsors and alternatives to detention as “being limited to approving or denying alternatives that someone else has given [him].” Hormiga Dep. Desig. at 87:19–88:5. Even when an alternative was presented, though, the Houston office would sometimes reject it, saying it had not been given the information early enough to allow for sufficient investigation of the proposed sponsor. See Trial Tr. at 3048:12–3049:8 (Mason). Because ICE has issued no guidance on what constitutes a “viable sponsor,” it is unclear what investigation was necessary that would have required additional time.
184. Neither Officer Hormiga nor Officer Barnes has ever tried to identify an individual or group sponsor. Hormiga Dep. Desig. at 85:11–86:11; Barnes Dep. Desig. at 45:4–8. Neither was aware of anyone else in the unit ever having made such an attempt. Hormiga Dep. Desig. at 86:12–18; Barnes Dep. Desig. at 45:9–11. Officer Barnes was not aware of any situation in which an age-out was released to a shelter or group home or sponsor that ICE had identified or made arrangements for. Barnes Dep. Desig. at 44:4–45:11. Although Houston FOJCs are not categorically opposed to vetting potential sponsors like FOJCs in some other field offices, they also explained many detention decisions on AORWs by asserting that there was “no viable sponsor.” See PX-334A at 178–184 (reflecting that “no viable sponsor” was identified as a reason for detention for 73 of the 120 age-outs detained by the Houston office between November 2018 and May 2019). Neither officer would speak with age-outs about finding a sponsor. Barnes Dep. Desig. at 151:14–24; Hormiga Dep. Desig. at 56:9–18.
185. Officer Hormiga viewed his window of responsibility for age-outs as only the day of their eighteenth birthday, and did not see himself as having any obligation to prepare in advance
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of their aging out or to follow up on their case after making a placement decision. Hormiga Dep. Desig. at 60:7–19. He testified that “one day is not enough time to be able to release somebody. But if you have time, then you can possibly release somebody.” Id. at 199:17–19.
186. No detention alternatives are used by the Houston office when processing age-outs. Officer Barnes viewed age-out custody determinations as presenting only two options: release or adult detention. Barnes Dep. Desig. at 42:13–18. The Houston office has not used ICE bonds for age-outs. Id. at 79:9–15, 79:24–80:9; Hormiga Dep. Desig. at 114:22–115:7. Defendants dispute this characterization of Officer Hormiga’s testimony because, they argue, he testified that although ICE bonds are not the office’s preferred means of release, an age-out processed by the Houston office could be given one. Defs.’ Resp. ¶ 374 (citing Hormiga Dep. Desig. at 114:2– 18). This is an accurate account of Officer Hormiga’s testimony but it overlooks the fact that he was then asked, “has that happened in your experience” and responded “[n]o . . . Never has.” Hormiga Dep. Desig. at 114:19–21. The Court’s finding is thus sufficiently specific—the office has not used an ICE bond, even if it could. No age-out has ever been placed into the ATD program from the Houston field office. Barnes Dep. Desig. at 40:23–41:1; Hormiga Dep. Desig. at 84:1–9; Trial Tr. at 2990:6–8 (Mason). Officer Barnes was not aware that ICE’s ATD program was an option for age-outs and had not been trained on it. Barnes Dep. Desig. at 40:6– 8, 40:15–22. Officer Hormiga also was not trained on using ATD. Hormiga Dep. Desig. at 83:11–13.
187. The Houston office’s failure to consider alternatives extended even to extreme cases. Officer Barnes detained one age-out in January 2018 even though the age-out was represented by a Catholic Charities staff attorney who contacted Officer Barnes a week before the age-out’s eighteenth birthday to request that the age-out be placed at an organizational sponsor. See PX-4.
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The attorney attached a copy of a letter from the organization saying that they were willing to sponsor the age-out. Id. at 10–12. ORR also submitted a post-18 plan recommending placement with the same organization. Id. at 13–15. The age-out had no criminal history and had an application for asylum pending. Id. at 1–3, 10. The closest thing to a reason for detention that Officer Barnes wrote on the AORW was the conclusory sentence, “Subject is a flight risk.” Id. at 2. Officer Mason approved the detention recommendation. Id. at 3.
This decision was so unreasoned that ORR officials contacted JFRMU to ask for reconsideration. See PX-269 at 3 (email from Sanchez to Barnes and Mason). When Officer Sanchez emailed the Houston officers to ask about it, Officer Mason gave no explanation except the fact that the age-out “ha[d] no family in the United States and [no] ties to the community,” that he was therefore a flight risk, and that “it is in the best interest of the Government that the subject be transferred to adult detention.” Id. at 2.
188. JFRMU knew that Houston detained nearly all of their age-outs, but did not see any substantive problem in need of correcting. In a follow up email conversation with Chief Harper, Officer Sanchez expressed concerns only with Houston’s paperwork, and with what she anticipated would be Officer Barnes’s anticipated poor performance as a witness in this case. Id. at 1 (“The reason for detention is flight risk, but the officer did not articulate the facts. The officer did a poor job completing the [AORW]. . . . Officer Barnes should be able to articulate the facts for a flight risk. He has been a [FOJC] for years. I have no faith in him for the deposition; I hope that I am wrong.”); see also Trial Tr. at 227:23–228:18 (Harper) (discussing this email). She further wrote “it appears that they [Houston] detain most of the age outs. My concern is that they do a terrible job with the paperwork.” PX-269 at 1. JFRMU evidently did
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not take issue with the substance of the decision to detain this eighteen year old who could have been placed in a shelter.
189. One age-out processed in Houston aged out of ORR custody when she was six months pregnant and was detained despite ORR having submitted a post-18 plan recommending release to a cousin. PX-335.22449 (AORW); PX-335.22479 (post-18 plan). Officers responsible for placing her in adult detention were not informed of her pregnancy. See PX335.22467 (email from an officer working in the intake unit stating “we were not aware of the pregnancy”); see Hormiga Dep. Desig. at 301:5–302:1. The eighteen year old was sent to the emergency room about a week after being placed in adult detention, suffering from what appeared to be serious medical issues. See PX-335.22468 (“moderate to severe back and abdominal pain, worsening over the past day, leaking yellow fluid she does not believe to be urine; also believes she has not been able to feel the baby move today”). She was released on OREC a week after her eighteenth birthday, and ICE officers filled out an inaccurate AORW indicating that she was released on OREC when she aged out—glossing over her week in adult detention and trip to the emergency room. See PX-335.22449–51; see also Hormiga Dep. Desig. at 303:7–304:13; Defs.’ Resp. ¶ 370 (not disputing the facts of this individual’s experience).
190. Officer Hormiga’s deposition was taken—outside of court—during the trial in December 2019. As of that time, there had been no changes made to the process by which Houston FOJCs make age-out custody determinations. Hormiga Dep. Desig. at 196:10–17.
ii. Miami 191. Miami: Between April 2016 and May 24, 2019, the ICE field office in Miami detained 181 of 189 age-outs it processed (96%). PX-334 at 57–60; PX–334A at 218–47. Between October 17, 2018 and May 24, 2019 the Miami office detained over 98% of age-outs it processed. PX-334 at 59–60; PX-334A at 240–47; see also Pls.’ Demo. Ex. 25A.
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192. Officer Sean Reardon was deposed in January 2019. See Reardon Dep. Desig. At that time he had been an FOJC in the Miami office for about four or five years. Id. at 5:1–4. His deposition testimony thus describes practices in Miami prior to the August 2019 Miami field office visit during which Chief Harper and other officers in JFRMU traveled to the Miami field office for a training session. See supra ¶¶ 104–08. Officer Reardon also testified at trial in December 2019. Trial Tr. at 3895–3990 (Reardon).
193. Prior to the JFRMU visit in August 2019, Miami FOJCs had been given several instructions that JFRMU viewed as incorrect and clarified at the training. SDDO Lee-Fatt had told the Miami FOJCs that they were not allowed to contact potential sponsors. Trial Tr. at 3925:10–3926:8 (Reardon). Miami Officers had also been told that they could not release an age-out to a sponsor unless the sponsor had lawful immigration status (as a lawful permanent resident or U.S. citizen). Trial Tr. at 3925:10–24, 3926:9–18 (Reardon). Following JFRMU’s visit to Miami and additional guidance, Miami FOJCs now understand that they may contact and vet sponsors and that sponsors do not need any particular status. Trial Tr. at 3927:10–20, 3928:11–18, 3929:9–21 (Reardon).
194. The Miami office was not reliably compliant with ICE’s systems for documenting age-out custody determinations. Officer Reardon testified that when ICE compiled a monthly age-out report (before the AORW was introduced), Miami’s reporting was not consistent and that the office probably missed at least some months. Reardon Dep. Desig. at 281:6–25 (“Yeah, we slacked on it. No doubt.”). After the AORW and SharePoint system was adopted in late 2018, Miami field officers sometimes completed forms for one another. Id. at 83:10–14.
195. Officer Reardon’s understanding, at least at the time of his deposition, was that an age-out could be detained even if they were not determined to be a flight risk, danger to the
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community, or danger to themselves. Reardon Dep. Desig. at 138:5–12; see, e.g., PX-171; PX335.08683–85. He also viewed age-outs without verified sponsors as potential flight risks. See Reardon Dep. Desig. at 139:10–16.
196. The Miami office regularly detained age-outs with proposed sponsors, stating on their AORWs that there was “insufficient . . . time for ICE to verify sponsorship.” See, e.g., Reardon Dep. Desig. at 96:20–98:8 (discussing PX–169); id. at 129:22–131:14, 142:18–143:1 (discussing PX-170); id. at 142:18–144:6, 149:23–150:7 (discussing PX-171). Prior to the August training, having the name of the proposed sponsor earlier would hardly have made a difference, for at least two reasons.
197. As Officer Reardon testified, Miami FOJCs believed they were not allowed to vet sponsors. Id. at 87:15–22. Even at the time of trial, after the August training, Officer Reardon was not able to identify any procedures in place for vetting or approving sponsors. Trial Tr. 3952:19–3953:5 (Reardon) (testifying he was not aware of any procedures for vetting).
198. Second, although FOJCs in the Miami office cited lack of time as a reason for detention, they made no effort to do anything with the time available to them. In the Miami office, a weekly list of UACs approaching their eighteenth birthdays was distributed, but Officer Reardon did not do anything with the list. Reardon Dep. Desig. at 112:8–113:1, 278:22–279:22. Miami FOJCs only ever had one day to work on a given age-out because they did no work before the age-out’s eighteenth birthday and would transfer the age-out to adult detention under the authority of ICE’s detained unit on that day, along with any information on possible sponsors. See Reardon Dep. Desig. at 116:25–117:17, 119:6–22; Trial Tr. at 3952:11–18 (Reardon); id. at 3953:13–3955:14 (Reardon) (testifying that when a post-18 plan was received from ORR, as early as two weeks before the age-out date, it would just be passed along to the detained unit); id.
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at 3955:15–17 (Reardon) (agreeing that only the detained unit would do anything with the proposed sponsor information). Fifty-seven of seventy-eight worksheets from the Miami office gave “insufficient amount of time” or “lack of sufficient time” as a reason why an age out was detained. See Pls.’ Br. FF ¶ 385 (collecting citations to AORWs); Defs. Resp. FF ¶ 385 (not disputing this).
199. The Miami field office at one point had what Officer Reardon called a “local ICE requirement” that, in order to be deemed valid, sponsors needed to show proof of U.S. Citizenship or lawful status and had to demonstrate ties to the community through evidence like a utility bill or affidavit of support. Trial Tr. at 3925:10–24 (Reardon); supra ¶ 159. JFRMU later informed that office that there was “no legal basis” for these requirements. Id. at 3961:9–17 (Reardon).
200. In nine cases processed while these unlawful local ICE requirements were in place, the Miami office refused to release an age-out to a parent who had been proposed as a sponsor, citing insufficient time to investigate the sponsor and fulfill these local requirements—even though there was no documentation suggesting any question about the identity of the parents or any information suggesting that the age-out was a flight risk, danger to self, or danger to the community. See PX-172; PX–335.15716, PX–335.18946, PX–335.14143, PX–335.14218, PX– 335.09290, PX–335.25874, PX–335.10945, PX–335.26507.25
201. In at least some instances, EARM comments in the age-outs’ files indicate that ICE’s detained unit was able to release age-outs detained by Officer Reardon within a week of their
25 In eight more cases, ICE denied release to a proposed sponsor who was the age-out’s sibling, aunt, or uncle, again citing no reason to doubt the relationship and no evidence of the statutory risk factors but only saying there was insufficient time to investigate the sponsor. See PX–335.26545, PX–335.09175, PX–335.14414, PX–335.18355, PX–335.19855, PX–335.02434, PX–335.17037, PX–335.23340.
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detention to sponsors that he claimed he lacked time to verify. See PX-169 at 7; PX-170 at 6; see also PX-171 at 19 (release to sponsor approximately one month after detention).
202. The Miami field office regularly released the age-outs that it detained after habeas petitions were filed on their behalf by legal services providers like Americans for Immigrant Justice. Trial Tr. at 1320:12–1321:2 (Lehner) (attorney for Americans for Immigrant Justice). There were twenty-two such cases between July 2018 and December 2019. Id. at 1320:12–18; see also, e.g., id. at 1307:13–1313:4 (Lehner) (discussing one case in more detail). None of the cases proceeded to a hearing on the merits, meaning that no judge ever ruled on the lawfulness of ICE’s detention of these twenty-two age-outs. Id. at 1313:12–18. ICE released each of them voluntarily before the habeas case reached that point. Id. at 1313:19–21; see Defs.’ Resp. ¶ 401 (not disputing this Plaintiffs’ proposed finding regarding these habeas cases).26
203. Even following the August 2019 JFRMU site visit, the Miami field office believes that sponsors are only available for age-out placement if they have been approved by ORR. When reviewing the AORW at his deposition in January 2019, Officer Reardon testified that in order to answer affirmatively to Item 12, which asks whether an individual or organizational sponsor is available for placement, it was required that the sponsor be “verified or approved by ORR.” Reardon Dep. Desig. At 67:19–22. At trial, when asked the same question, he first responded “we’ll work with ORR on group homes if we can and on sponsors if we can. So I would verify the group home and the sponsor,” and, when pressed, responded that he wasn’t sure whether the sponsor had to be approved or verified by ORR in order to be available for placement. Trial Tr. at 3965:11–17.
26 Releasing these age-outs without waiting for a judge to rule on the legality of their detention suggests that the ICE office tasked with detaining them was not entirely comfortable with the juvenile unit’s decision to detain them in the first place.
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Defendants dispute this proposed finding. Defs.’ Resp. ¶¶ 390–93. It is not clear from their response whether they challenge the notion that Officer Reardon and other Miami FOJCs believed sponsors needed to be approved by ICE before the August 2019 site visit, or whether they only challenge the notion that Miami FOJCs still believed this at the time of trial or at present. Either way, the Court disagrees. Before the August 2019 site visit, the evidence is clear—Officer Reardon rejected proposed sponsors and detained age-outs, explaining on the AORW that ORR requirements that ICE did not share had not been met. See Trial Tr. at 3970:19–22 (Reardon) (reviewing PX-169, an AORW and accompanying documentation for an age-out whose proposed sponsor was rejected for failing to complete ORR’s fingerprinting requirements); id. at 3980:11–13 (Reardon) (reviewing PX-335.18946–48, AORW for an ageout whose proposed sponsor was rejected for failing to complete an ORR home study).
For the time period after the site visit, and up through the present, it is less obvious what Officer Reardon understood it to mean for a sponsor to be available. The Court finds that his testimony suggests he still thinks ORR approval is a necessary step. Asked “[w]hat exactly do you do now to vet sponsors?” he responded that, though he had not had many cases since the change in policy, “now if ORR is saying they have a sponsor but they don’t have any status, or if ORR is -- needs help in any way to contact a sponsor to call, we’ll try to assist them, anything we can do.” Trial Tr. at 3929:15–21 (Reardon). And, as quoted above, he also testified, “we’ll work with ORR on group homes if we can and on sponsors if we can.” Id. at 3965:11–13 (Reardon). Both these descriptions of Miami’s post–August 2019 procedures suggest that Officer Reardon views his role in the process as helping facilitate ORR approval of sponsors, rather than vetting or investigating proposed sponsors to see if they meet ICE’s own criteria.
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204. Prior to 2019, the Miami field office did not consider placing age-outs on ATD or releasing them on ICE bonds. Officer Reardon was familiar with the ATD program, as he formerly worked in that unit. Reardon Dep. Desig. at 6:7–7:7. Nonetheless, in his four or five years as an FOJC prior to his deposition he had never referred an age-out to the ATD unit and was not aware of any age-outs that were placed there by others. Id. at 11:11–19, 12:6–13; but see PX-256 (2018 email from ICE ERO writing to the juvenile unit to say that an age-out would have to be placed on ATD because the adult detention facility was full); Defs.’ Resp. ¶ 403 (“Defendants do not dispute that the Miami Field Office did not utilize ICE’s ATD Program . . . . ”). As of his deposition in January 2019, Officer Reardon had never released an age-out on an ICE bond and was not aware of anyone else in the Miami office having done so. Reardon Dep. Desig. at 69:22–70:1. At some point, in March or April 2019, SDDO Lee-Fatt told the Miami FOJCs that they could offer ICE bonds to age-outs. Trial Tr. at 3931:19–3932:12 (Reardon); see also id. at 3932:13–18 (Reardon) (expressing uncertainty about when in 2019 this instruction was given); id. at 1313:22–1314:18 (Lehner) (testifying that ICE began offering bonds in the summer of 2019).
205. The bonds offered by the Miami field office beginning in 2019 have been in the amount of $5,000—more than the $1,500 minimum used by other offices. Id. at 1314:19–1315:1 (Lehner); see DX-59 at 3 (Miami office AORW indicating a bond set for $5,000); see also Trial Tr. at 3143:12–21 (Hyde) (testifying that the New York City office set bonds at the minimum amount of $1,500). No evidence was presented concerning how this amount was set, why it was greater than other offices, or whether it was calibrated based on risk of flight. The families of many age-outs struggled to pay this bond, so many age-outs who had $5,000 bonds set were nonetheless sent to adult detention facilities. See Trial Tr. at 1315:2–1316:8 (Lehner).
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206. The current policy in the Miami field office is that ICE’s detained unit will no longer release age-outs to sponsors and that if an age-out has been detained, the detained unit will only release them if they pay the $5,000 ICE bond or obtain a lower bond from an immigration judge. Id. at 1317:9–13 (Lehner); see also DX-108 (September 2019 guidance email from JFRMU to Officer Lee-Fatt explaining that after the initial age-out decision is made, Section 1232(c)(2)(B) no longer applies and the age-out should be treated as any other adult in ICE custody); Trial Tr. at 4327:6–4328:12 (Harper) (explaining this guidance and the basis for JFRMU conveying it to the Miami office).
iii. New York City 207. New York City: Between April 2016 and May 24, 2019, the ICE field office in New York City detained 121 of 135 age-outs it processed (90%). PX-334 at 61–63; PX-334A at 248– 85. Between October 17, 2018 and May 24, 2019 the New York City office detained 82% of age-outs it processed. PX-334 at 62–63; PX-334A at 275–85; see also Pls.’ Demo. Ex. 27A. 208. The only witness from ICE’s New York City field office from whom the Court heard testimony was Officer Linda Hyde, who has been SDDO in the New York City office since 2015. Trial Tr. at 3102:16–21. 209. Officer Hyde and the New York City office view those age-outslacking fixed addresses as flight risks, dangers to themselves, and dangers to the community. See Hyde Dep. Desig. at 165:11–14 (“Lack of ties is an indicator that they have no ties to the community. They have no one here. And that’s a potential . . . flight risk.”); id. at 169:17–170:4, 246:6–13 (flight risk); id. at 228:16–229:7 (“[A] person with no place to live, no means of -- to support themselves, could be a danger to themselves . . . . I attribute it to being, you have no place to live, you have no place to eat, no place to drink, you could become a danger to yourself.”); Trial Tr. at 3328:3–11 (Hyde) (“[I]n my interpretation, if someone has no place to go and [is] placed
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out in the elements, it could be a danger to self, yes.”); Hyde Dep. Desig. at 192:24–193:14, 227:13–19 (danger to self); Trial Tr. at 3139:4–7 (Hyde) (explaining that she understands “harm to the community” to mean “someone [with] no place to go that could potential[ly] be a harm or risk to the community at large”).
210. In the vast majority of cases, the New York City office does not attempt to identify, investigate, or vet potential sponsors. Officer Hyde testified that it is not ICE’s responsibility to identify sponsors. Hyde Dep. Desig. at 55:20–56:6, 99:16–21, 128:9–13; Trial Tr. at 3124:14– 18. She also testified that her office does not vet sponsors, but relies on ORR to do that. Trial Tr. at 3268:2–9 (Hyde). With investigation and both vetting off the table under Officer Hyde’s leadership, this leaves nothing for ICE to do with regard to sponsors. Because the New York field office neither identifies nor vets sponsors, a UAC in their AOR that has not already been released to a sponsor by ORR will not be released to a sponsor on their eighteenth birthday.
211. The New York City field office does not maintain a list of potential organizational sponsors in anything approaching a formal or orderly manner. Officer Hyde gave inconsistent and confusing testimony on this issue. E.g. id. at 3341:25–3342:3 (“Q: Do you maintain a list of potential placement folks and organizations who accept age-outs in the New York area? A: No, we have a list in the office.”); id. at 3343:2 (“We looked at the list of sponsors -- entities in New York.”); id. at 3343:17–19 (“Q: Okay. You don’t have your own list of potential sponsors for young adults, 18 year olds? A: No, I get it from the internet.”); id. at 3344:16–18 (“Q: So you do have a list now or you don’t have a list? A: I think we have one somewhere.”). Needless to say, no such list was produced at trial. The Court has explained its concerns regarding Officer Hyde’s credibility generally, see supra ¶ 123 & n.15, and this issue is no different. While there may have been some kind of list created in the New York office at some point in Officer Hyde’s
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five years as SDDO, it is clear from Officer Hyde’s confused testimony that no formal list was in use. The high detention rate supports the conclusion that no such list was being used even if it existed somewhere. This is despite the fact that there is a “rich array of institutional sponsors” in the New York area. Trial Tr. at 846:3–846:21 (Enriquez).
212. The New York City field office does not consider proposed sponsors or post-18 plans coming from anyone other than ORR. Id. at 3268:24–3269:14 (“[w]e don’t know who's credible or who is not credible. We don't know if we're going to get correct information or incorrect information. So we depend on ORR to do the vetting for us.”); PX-488 at 1 (email from Officer Hyde to her supervisors asking “Should we consider Post-18 plans from advocate[s] and attorneys? (I would stick with Post 18 plan from the shelters)”); see also Trial Tr. at 3151:9–10 (Hyde) (“[S]ince the minors are not 18 as yet, we try to steer them to ORR . . . .); id. at 3297:1–5 (Hyde) (“[L]obbying [on behalf of a UAC] should go to ORR, because ORR still had custody. . . . [A]ll this information that the [legal services provider] had would go to ORR, and that would be included in the post-18 plan that would come to ICE.”); PX-292 (email from Officer Hyde stating “ICE cannot get involve[d] with ORR’s procedures . . . prior to a minor turning 18. When a minor turn[s] 18 or ages out of custody that is when ICE involvement begins.”) Officer Hyde felt strongly enough that she sent an email to Chief Harper expressing incredulity with the suggestion by immigration attorneys in New York that ICE bore some responsibility for identifying sponsors. PX-451 at 1 (email from Officer Hyde to Chief Harper, complaining about immigration attorneys sending emails to ORR shelters citing this Court’s opinion granting a preliminary injunction in this case, ECF No. 28); Trial Tr. at 3321:18–20 (Hyde) (“I thought it was unbelievable that they believe that we should go door-to-door looking for sponsorship.”).
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213. Like some other field offices, the New York City office takes the position that it only has one day—the age out’s eighteenth birthday—to take any action with regard to an age-out. Trial Tr. at 3155:19–3156:8, 3240:8–16 (Hyde). The New York City field office makes age-out custody determinations on that day. Hyde Dep. Desig. at 83:7–18, 84:16–85:3.
214. The New York City field office rarely released age-outs with ICE bonds, and never places them in ICE’s ATD program. Officer Hyde testified that she has given age-outs ICE bonds in the minimum amount of $1,500, but only rarely and only when an age-out or an ageout’s family member asks for one. Hyde Dep. Desig. at 142:11–25, 144:6–145:8. Officer Hyde has never referred any age-outs to the ATD unit, and is not aware of anyone else in her field office having done so. Id. at 32:17–33:18.27 She testified that she “do[esn’t] believe in ATD” because she believes requiring age-outs to wear ankle bracelets would be “shaming” them. Id. at 139:3–7. Even if there was a flight risk that needed to be mitigated—as there is in nearly every case as Officer Hyde views it—she would prefer to use any option other than ATD. Id.at 34:9– 19 (“If I believe a person is a flight risk, I would look for other alternatives. But ATD in my estimation is the last resource because he’s going to cut that bracelet regardless. I believe that I’m shaming an individual by putting a bracelet on him. 18-year-old going to school, I don’t think that’s appropriate.”). But this position, again, appears to view ATD as an alternative to ROR rather than as an alternative to detention. Officer Hyde did not explain why being released with an ankle bracelet would be any more shameful than being placed in adult detention. One age-out processed by the New York City office was deemed “not eligible for alternative to
27 Somewhat inconsistently with ICE’s broader emphasis on the need to vet sponsors for the sake of age-outs’ wellbeing, Officer Hyde testified that once a sponsor pays a bond, the sponsor has no ongoing responsibility for taking care of the age-out, and need not even be in this country. See Trial Tr. at 3185:10–3186:6 (Hyde).
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detention” because—according to ICE—he did not have a fixed address. See id. at 192:17–23 (quoting PX-69 at 2).
b. Low Average Detention Rate i. San Antonio
215. San Antonio: Between April 2016 and May 24, 2019, the ICE field office in San Antonio released 527 of 54528 age-outs it processed (96%). PX-334 at 76–87; PX-334A at 329– 66. Between October 17, 2018 and May 24, 2019 the San Antonio office released 117 of 119 age-outs it processed (98%). PX-334 at 85–87; PX-334A at 359–66; see also Pls.’ Demo. Ex. 21A; Trial Tr. at 2805:23–2806:12 (Munguia) (testifying that the San Antonio office has historically released all or almost all age-outs on their own recognizance except for those cases in which the age-out has a criminal history or serious medical condition.). Each of the two ageouts who were detained by the San Antonio office during the time that the AORW and SharePoint system was in place had a criminal history. PX– 335.07680–.07682; PX–335.27174– .27176.
216. Officer Jose Munguia is the primary FOJC in the San Antonio field office (one of four FOJCs in that office), and has been an FOJC for roughly eleven of the past sixteen years. Trial Tr. at 2754:5–25 (Munguia). In those eleven years he does not recall ever having detained an age-out that he would otherwise have released because he was unable to find a sponsor. Id. at 2822:5–21 (Munguia).
28 These figures are based on the Court’s review of PX-334A. Plaintiffs quote slightly different figures, as they say the San Antonio office released 526 of 543 age-outs in this time period. Pls.’ Br. ¶ 269. Defendants do not dispute Plaintiffs’ figures. Defs.’ Resp. ¶ 269. The small differences between the two sets of figures make for a negligible 0.02% change in overall detention rate.
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217. Officer Munguia frequently accesses the ORR UAC data portal and compares the UAC information there with ICE’s own records in order to maintain an up-to-date list of UACs in ORR custody whose eighteenth birthdays are approaching. Id. at 2809:23–2810:22 (Munguia). He then researches each upcoming age-out and speaks with their ORR case managers to learn more about the UAC and his or her time in ORR custody, with the aim of determining whether that UAC is a flight risk, danger to self, or danger to the community. See id. at 2813:3–2814:6(Munguia). He does not view how long the UAC has been in ORR custody as a relevant consideration. Id. at 2832:25–2833:12 (Munguia).
218. FOJCs in the San Antonio office consider post-18 plans, either from ORR or from other advocates, that include contact information for proposed sponsors. See id. at 2764:12–20, 2811:4–12 (Munguia). These post-18 plans are typically received three to seven days in advance of the age-out’s eighteenth birthday. Id. at 2764:21–25 (Munguia).
219. Officer Munguia is often able to place age-outs with sponsors even when he only receives a post-18 plan one or two days before the age-out’s eighteenth birthday. Id. at 2812:4– 7. Officer Munguia will reach out to ORR if he has not received a post-18 plan, and can usually get one either from ORR or from a legal services provider working with the age-out. Id. at 2812:8–21 (Munguia); see also id. at 2764:6–11 (Munguia) (describing the San Antonio field office’s “good working relationship” with ORR). Officer Munguia will sometimes also look at a UAC’s Form I-213, which ORR cannot access, and attempt to identify potential sponsors that he can give to ORR. Id. at 2814:7–24 (Munguia). When a proposed sponsor has been identified, Officer Munguia will verify their address and sometimes call the proposed sponsor. Id. at 2818:4–2819:4.
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Defendants dispute the proposed finding “that Officer Munguia identifies sponsors.” Defs.’ Resp. ¶ 280. The Court finds that Officer Munguia did in fact review the Form I-213 for certain age-outs and that he passed information from that Form along to ORR. Officer Munguia testified consistently to this effect in his deposition and again at trial. See Munguia Dep. Desig. at 82:24–83:18; Trial Tr. at 2814:7–24 (Munguia). Defendants have identified no inconsistent testimony or alternative interpretation of Officer Munguia’s testimony. The Court found him to be a credible witness. (If Defendants only meant to suggest that passing names to ORR does not count as “identif[ying] sponsors,” the Court would find that semantic dispute to be immaterial.).
220. In cases where an individual sponsor cannot be identified, Officer Munguia has been able to place age-outs with organizational sponsors. Id. at 2820:16–20 (Munguia). He is familiar with people working at two adult shelters in the San Antonio AOR and speaks to them on the phone. Id. at 2820:16–2821:25 (Munguia).
221. Officer Munguia speaks with each age-out he processes. Trial Tr. at 2816:6–9 (Munguia). When a proposed sponsor has been identified, Officer Munguia speaks with an ageout to confirm that the age-out is comfortable living with the proposed sponsor. Id. at 2817:9–18 (Munguia). If a sponsor has not yet been identified, he will ask the age-out if he or she knows of any possibilities. Id. at 2817:19–24 (Munguia).
222. Nearly all the age-outs processed by the San Antonio office are placed with sponsors and released on their own recognizance. Id. at 2804:12–2805:2.
223. Other FOJCs in the San Antonio field office follow the same general practices described by Officer Munguia. Id. at 2820:7–15 (Munguia).
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224. No evidence has been presented suggesting that the liberal release procedures followed in San Antonio result in more age-outs absconding than for those offices utilizing more detention-focused procedures.
c. Extreme Shifts in Detention Rate i. Harlingen
225. Between April 2016 and May 24, 2019, the ICE sub-office in Harlingen, Texas processed more age-outs than any other. It detained 674 of 1563 age-outs it processed (43%). PX-334 at 11–42; PX-334A at 78–146. This moderate overall rate is somewhat misleading because it is the product of several fairly dramatic swings in the detention rate. Between April 2016 and October 15, 2016, the Harlingen office detained 88% of the age-outs it processed. PX334 at 11–17. From October 15, 2016 through February 25, 2017, 95% of age-outs were released. Id. at 13–17. Eighty-one percent were detained between February 26, 2017 and December 2, 2017; 94% were released between December 3 and December 14, 2017; then 91% were detained between December 15, 2017 and September 25, 2018. Id. at 17–29. Finally, between September 26, 2018 and May 24, 2019, 99% of age-outs were released. PX-334 at 29– 42; see also PX-334A at 78–146; Pls.’ Demo. Ex. 22A (illustrating these shifts in detention rate).
226. The Court heard testimony concerning the Harlingen office from Officer Stephen Venegas, who worked as the primary FOJC in Harlingen from October 2017 to October 2018, and as a backup FOJC from then until October 2019. Trial Tr. at 2859:2–17 (Venegas).
227. Officer Venegas’s testimony showed that the dramatic shift in detention rate was caused by new guidance given by the Harlingen SDDO. At his deposition, Officer Venegas was unable to provide an explanation for the shift in detention rate. See Venegas Dep. Desig. at 144:20–145:25. At trial he testified that in the fall of 2018, Harlingen’s SDDO, José Cortez, instructed his FOJCs to look at flight risk less “stringently” than they previously had, and to
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“broaden the spectrum on how [they] looked at flight risk” by “tak[ing] into consideration . . . were they really a flight risk.” Trial Tr. at 2881:6–2882:5 (Venegas).
New guidance from JFRMU may also have played a role in the change in detention rate at the Harlingen office. The Harlingen office began releasing nearly all the age-outs it processed starting on September 25, 2018. See PX-334 at 29. That same day, Chief Harper held a call with FOJCs and SDDOs on which she discussed age-outs. See PX-61 at 1 (email from Chief Harper addressed to “FOJC SDDOs” and referencing “the call today”). She sent an email soliciting information from the field offices concerning age-out custody determination policies, guidance, and training, explaining that “we just need to get an overview of any independent guidance or trainings that may have been done in the field.” Id. at 1–2. The email also stated that she “w[ould] be discussing additional documentation that will be needed for age-outs” on the call as well. Id. at 1. This was less than a month before the AORW and SharePoint system was introduced on October 17, 2018, see PX-1, but was subsequent to this Court’s issuance of its orders granting a preliminary injunction and shortly after the Court first certified a class, P.I. Op. (issued April 18, 2018); MTD and Class Cert. Op. (issued August 30, 2018). Given the timing and content of the email and call, the Court thinks it more likely than not that guidance from JFRMU played a role in shifting the outcomes of age-out custody determinations in Harlingen.
228. At his deposition in March of 2019, Officer Venegas testified regarding his process for making age-out custody determinations. This was after Harlingen’s shift to detaining almost no age-outs and Officer Venegas only testified to his then-current practices. His testimony at trial was broadly consistent.
229. Officer Venegas testified at his deposition that Harlingen FOJCs would log onto ICE’s EARM database on a near-daily basis to identify UACs approaching their eighteenth
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birthdays. Venegas Dep. Desig. at 11:15–12:11. At trial he testified that he only did this rarely. Trial Tr. at 2924:21–2925:12 (Venegas). Considering that the deposition was taken while Officer Venegas was still working as an FOJC while the trial was held two months after he stopped working as one, the Court credits his earlier testimony.
Defendants dispute Plaintiffs’ proposed finding that the EARM tool could “identify upcoming Age-Outs,” stating that Officer Venegas needed to look to post-18 plans to know whether “a UAC was really aging out.” Defs.’ Resp. ¶ 301; see id. ¶ 300. This is a semantic distinction worth clarifying. Officer Venegas testified that, with the EARM tool, FOJCs “could see who was going to turn 18, and -- and we could get that information ahead of time.” Trial Tr. at 2873:10–11. The Court takes Defendants’ point that a UAC approaching her eighteenth birthday will not necessarily become an age-out, but Officer Venegas accounted for this possibility, noting that “sometimes they would even be released by ORR before they even aged out.” Id. at 2873:18–19. The EARM tool could not tell the FOJCs whether this would happen, but it could help them identify likely or potential upcoming age-outs—those UACs approaching their eighteenth birthdays. Officer Venegas testified that he would keep track of these upcoming potential age-outs, but would not take much action on them until they received post-18 plans from ORR. Id. at 2873:15–21.
230. Harlingen FOJCs view their responsibilities with age-outs as beginning a day or two before the age-out’s eighteenth birthday and ending on that day. Venegas Dep. Desig. at 14:17– 22. They typically only have one to two days’ advance notice of the age-out, and would receive post-18 plans at that time. Id. at 11:1–7; Trial Tr. at 2920:25–2921:2 (Venegas).
231. Harlingen FOJCs investigated and attempted to identify potential sponsors and would seek out organizational sponsor placements if no individual sponsor was available. They would
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receive post-18 plans, either from ORR or from legal services providers, in most cases and would investigate proposed sponsors. Venegas Dep. Desig. at 17:6–7 (testifying he receives post-18 plans “on most occasions”); id. at 17:24–18:18 (testifying he would call proposed sponsors, run background checks, verify addresses); id. at 65:6–20 (discussing post-18 plans from legal services provider); id. at 66:7–16 (testifying that the process is the same whether the recommendation comes from the legal services provider or from ORR); see also Trial Tr. at 2874:1–15 (Venegas) (describing his phone calls to potential sponsors). Officer Venegas would speak with the age-out to determine if they had any potential sponsors and, if necessary, would review the age-out’s Form I-213 to see if any potential sponsors were mentioned there. Venegas Dep. Desig. at 81:16–82:25, 89:23–90:5. If no individual sponsor could be found, he would reach out to La Posada, a shelter, to see if they would have space for the age-out. Id. at 18:22– 25; 19:7–12. He would release the age-out on his or her own recognizance to La Posada if they had space, which they always did. Trial Tr. at 2876:14–17, 2928:1–3.
232. Office Venegas identified a sponsor for and release every age-out he processed between October 17, 2018 and May 24, 2019, having determined that they were not flight risks, dangers to the community, or dangers to themselves. Id. at 2930:24–2931:20. During the same time period, the Harlingen office as a whole released 603 age-outs and detained only four. PX334A at 125–46. Again, no evidence was presented that these release-favoring procedures affected the rate at which age-outs later absconded.
ii. Chicago 233. Between April 2016 and May 24, 2019, the ICE field office in Chicago detained 128 of 201 age-outs it processed (64%). PX-334 at 1–5; PX-334A at 1–38. Again, this is the product of shifts in the average detention rate. From April 2016 through August 2018, the Chicago office detained 90% of the age-outs it processed. PX-334 at 1–3; PX-334A at 1–29. From September
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2018 through May 24, 2019, just thirteen of the seventy-four age-outs processed by the Chicago office (17.5%) were detained and 82.5% were released. PX-334 at 3–5; PX 334A at 30–38; see also Pls.’ Demo. Ex. 23A (illustrating this shift in detention rate).
234. The Court heard testimony concerning the Chicago office from Officer Geoffrey Pepple, who has worked as an FOJC in Chicago since 2012. Trial Tr. at 3616:5–7 (Pepple).
235. Shifts in the Chicago field office’s detention rate have been attributable to changes in office leadership and to this litigation. See infra ¶¶ 236–237.
236. Officer Pepple testified that around the time Section 1232(c)(2)(B) was enacted, in 2013, his office released most age-outs. Id. at 3621:10–16. In 2015, a new SDDO “started emphasizing” that age-outs were flight risks and “she wanted them detained when they turned 18.” Id. at 3658:4–23. This shift would have predated the period for which ICE produced data, but is consistent with the high detention rates seen in 2016 at the start of the data. See, e.g., Pls.’ Demo Ex. 23A.
237. In the summer of 2018—around when the Chicago office began releasing more of its age-outs—the office “change[d] that emphasis” on flight risk and detention of age-outs. Trial Tr. at 3658:24–3659:2 (Pepple). Officer Pepple candidly attributed the change in attitude primarily to this lawsuit, Garcia-Ramirez v. ICE, and also to the fact that “[n]ew supervisors have different opinions about how we handle cases.” Id. at 3659:3–7; see also Pepple Dep. Desig. at 203:19– 20, 22–23 (“Q: [W]hat was the reason for that change in your opinion? . . . A: I think it was primarily motivated by your lawsuit.”).
238. Officer Pepple’s practice with regard to age-out processing changed in the last few months of 2018. He began taking more active steps to obtain names of potential sponsors from ORR and ORR contractors, and began receiving post-18 plans more often as a result. Pepple
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Dep. Desig. at 191:5–192:8; see also Trial Tr. at 3632:19–3633:9 (Pepple). He had not previously reached out to a charitable organization about sponsoring an age-out until he did for the first time at some point between October and December 2018. Pepple Dep. Desig. at 17:1–6, 44:21–45:4.
239. By the time he testified at trial in December 2019, Officer Pepple was using ICE’s EARM module and ORR’s UAC portal to keep track of UACs in ORR custody who were approaching their eighteenth birthdays. Trial Tr. at 3629:7–16, 3630:25–3631:23. He typically reaches out to an age-out’s ORR shelter ten days before the UAC’s birthday to find out information about the UAC and about any potential sponsors, and ORR typically responds. Id. at 3628:14–3629:6, 3629:17–23, 3632:17–3633:9. If no individual sponsor is available, Officer Pepple asks ORR to look into organizational sponsors. Id. at 3634:7–21. On two occasions Officer Pepple has had to do this himself by contacting a charitable organization because ORR did not find one. Id. at 3634:22–3635:20.
240. The Chicago office released the vast majority of its age outs without using detention alternatives other than release to an individual or organizational sponsor. Officer Pepple has never set an ICE bond for an age-out and was not aware of anyone else in his office having done so, though he was aware that it was an option. Pepple Dep. Desig. at 45:13–23, 47:2–5, 49:2–5. He has also never recommended or used the ATD program with respect to an age-out though, again, he was familiar with it as an option. Id. at 22:13–23:10. He has considered ankle monitoring for age-outs but decided against it because it is more labor intensive for the FOJC to set up. Id. at 173:2–174:10. He believes other officers in his unit feel the same way and do not use ATD with age-outs for the same reason. Id. at 174:9–16. Again, no evidence has been
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presented that Chicago’s more recent release-favoring procedures have negatively impacted ageout rates of absconding.
iii. El Paso 241. Between April 2016 and May 24, 2019, the ICE field office in El Paso detained 123 of 218 age-outs it processed (56%). PX-334 at 6–10; PX-334A at 39–77. The office’s detention rate changed dramatically in early 2017. From April 2016 through January 2017, only four of eighty-seven processed age-outs were detained (5 %). PX-334 at 6–7; PX-334A at 39–48. Between February 2017 and May 2019, however, the rate of detention was higher, with 119 of 131 age-outs detained (91%). PX-334 at 7–10; PX-334A at 49–77. Between October 17, 2018 and May 24, 2019, the El Paso office detained 84% of age-outs it processed. PX-334 at 2–10; PX-334A at 68–77; see also Pls.’ Demo. Ex. 26A. 242. Officer Victor Galvez is one of six FOJCs in the El Paso office. Galvez Dep. Desig. at 7:19–8:15. His deposition was taken and designations were read into the record at trial but he did not testify at trial. The Court also heard testimony concerning the El Paso office from Danielle Escontrias, an immigration attorney who works for Catholic Charities in New Mexico and who previously worked for Diocesan Migrant & Refugee Services in El Paso. Trial Tr. at 1494:24–1495:11 (Escontrias). 243. The El Paso office has had three different SDDOs during the time period for which ICE produced data in this lawsuit: Joel Beard, Hector Juarez, and Danielle Hernandez, the current SDDO. See Galvez Dep. Desig. at 11:17–12:7, 12:14–13:13, 107:19–108:1; Trial Tr. at 1499:8–20, 1514:22–1515:1 (Escontrias). 244. The detention rate increased sharply over Officer Juarez’s first three or four months as SDDO, between December 2016 and March 2017. See Pls.’ Demo. 26A (charting El Paso’s monthly detention rate). See Galvez Dep. Desig. at 306:17–307:8, 307:14–19, 308:1–309:3
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(discussing the shift in rate at Officer Galvez’s February 2019 deposition, but quoting specific figures that were superseded by subsequent productions of and corrections to ICE’s data); see also supra ¶ 241 (summarizing the shift in detention rate visible in the final version of the data). While the El Paso office had released nearly 100% of its age outs through November 2016, it was detaining nearly 100% by the end of February 2017. Id.
Plaintiffs suggest that Officer Beard was replaced by Officer Juarez in January 2017. Pls.’ Br. FF ¶ 428. Defendants do not challenge this, Defs.’ Resp. ¶ 428, but the Court does not see where the testimony establishes a changeover date with this specificity. Officer Galvez testified he began working with the juvenile unit in 2016, possibly in October of that year, and that he does not recall having worked under Officer Beard. Galvez Dep. Desig. at 106:1–16, 107:19–108:1. The shift in age-out detention rate began in December of 2016 and escalated in January and February of 2017. See Trial Tr. at 1505:21–1506:17 (Escontrias) (describing a shift in policy from the El Paso office); see also Pls.’ Demo. 26A. Whether Officer Galvez simply forgets that he worked briefly under Officer Beard, or whether Officer Juarez began as El Paso SDDO slightly earlier than Plaintiffs believe is immaterial. Either way, the detention rate increased sharply over Officer Juarez’s first three or four months as SDDO.
245. Officer Galvez could not recall a single age-out who was not detained while Officer Juarez was SDDO. Galvez Dep. Desig. at 116:11–117:10; see also Trial Tr. at 1506:13–23 (Escontrias) (testifying that nearly 100% of the age-outs she worked with were detained under Officer Juarez, including those with serious health problems).
246. At some time before the end of October 2018, Officer Hernandez became SDDO. See PX-335.27398–.27400 (AORW from late October 2018 approved by Officer Hernandez as SDDO). Around this same time, the detention rate in El Paso began to drop somewhat. From
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February 2017 through September 2018 the office had detained 95.8% of all age-outs it processed. PX-334 at 7–9; PX-334A at 49–67. Between October 2018 and the close of discovery on May 24, 2019, 84.4% of processed age outs were detained. PX-334 at 9–10; PX334A at 68–77. While not as dramatic as the increase in the detention rate when Officer Juarez became SDDO, these figures are consistent with Ms. Escontrias’s testimony that once Officer Hernandez took over as SDDO, her organization had somewhat more success in getting age-outs released. See Trial Tr. at 1514:21–1515:16 (Escontrias). In raw numbers the shift is more obvious: between February 2017 and September 2018 the El Paso office processed seventy age outs and released only three, while between October 2018 and May 2019, it processed only forty-nine but released nine—three times as many. PX-334 at 7–10; PX-334A at 49–77.
247. The Court finds that the shifts in the age-out detention rate in the El Paso field office thus coincided with changes in the position of SDDO. Defendants “dispute that any changes were caused by policy changes that accompanied turnover in the SDDOs.” Defs.’ Resp. ¶¶ 428, 448, 450, 452–53. The Court disagrees. Defendants cite Officer Galvez’s testimony denying that there have been any policy changes. See Galvez Dep. Desig. at 118:3–8 (“Q: Do you recall any change that occurred starting after August of 2018 with respect to the El Paso Juvenile Office’s decisions whether to detain age outs? A: No, there was no change.”); see also id. at 98:18–99:17. The testimony Defendants cite could only relate to changes between Officer Juarez and Officer Hernandez, because of the timeframe indicated by counsel’s question, and because officer Galvez testified that he did not remember working under Officer Beard. So he would not be in a position to say what policy changes officer Juarez put in place when he came in. Further, there was testimony and evidence suggesting that FOJCs in the El Paso office do not necessarily see the post-18 plans that are provided by ORR or by attorneys like Ms. Escontrias.
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See Galvez Dep. Desig. at 29:1–22 (testifying that post-18 plans “go straight to my supervisor” and that FOJCs “don’t get to see them,” unless they are copied on an email, but that generally the materials are physically dropped off and go straight to the SDDO); see also PX-466 (email from Galvez to a FOJC in another field office in which he writes “we don’t get Post-18s”). So if there were a policy change regarding what kinds of post-18 plans are accepted or considered by the El Paso office—the kind of change Ms. Escontrias’s testimony suggests—it is not at all clear that Officer Galvez would have been in a position to know.
Defendants also argue that Ms. Escontrias, who did not work in the field office, was not in a position to know what policy changes were taking place. Even if Ms. Escontrias did not know precisely what policy changes were taking place, she nonetheless testified credibly to certain policy changes implemented by Officers Juarez and Hernandez that she could see from the outside because they related to what materials immigration attorneys could submit to the El Paso office. See Trial Tr. at 1505:21–1506:17 (Escontrias). It is reasonable to assume that if the SDDOs changed outward facing policy, they likely also had changed internal procedures, and the shifts in detention rate are strongly correlated with changes in the SDDO position. Defendants did not present testimony from any witnesses who did work in the El Paso office to refute Ms. Escontrias’s credible testimony.
248. Officer Galvez views most age outs as flight risks and dangers to themselves because of their lack of community ties. Officer Galvez agreed that age-outs lack community ties in most cases, and treats lack of a sponsor as indicating a lack of community ties. Galvez Dep. Desig. at 225:11–17, 226:5–227:17. He views age-outs who lack community ties as flight risks. Id. at 241:12–13, 243:16–244:15. He also views them as dangers to themselves if they do not have a place to go. Id. at 299:19–300:7 (“[W]hen you release a kid out on the street by themselves I
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would say yes [danger to self] because they are in a new land, different language. So if you let them out by themselves, they are a danger to themselves, because red light/green light, if they cross, they could get run over . . . .”); see also id. at 300:19–301:3.
249. Similar to the practice in several other offices, FOJCs in the El Paso field office take little to no action to attempt to identify or vet sponsors for age-outs and leaves this work entirely to ORR. Officer Galvez was not aware of anyone in the Juvenile Unit there ever arranging for or identifying a sponsor for an age out. Galvez Dep. Desig. at 66:15–22. In his experience only an ORR case manager would identify or arrange for a sponsor. Id. at 66:10–22, 68:2–6. Officer Galvez was not aware of any organizational sponsors or group homes—aside from the fact that he recognized the name of one. Id. at 70:1–71:18. Between the institution of the AORW system in October 17, 2018 and the end of January 2019 (two weeks before Officer Galvez’s deposition), for all fourteen age-outs detained by the El Paso office, the explanation on the AORW for the detention was “no viable sponsor.” Id. at 287:13–18, 295:2–22. Officer Galvez summarized his process for age-outs as being that he will “talk to the lead case manager, see if they have any sponsors that [they] will possibly release him [to] before his birthday. And then they will tell [Galvez] yes or no.” Id. at 41:4–7. “If they [are] not released by ORR,” Galvez testified, “they will be adults that will be going to [ICE] custody,” which means “they are taken directly from the shelter to [adult detention].” Id. at 42:1–6.
250. FOJCs in the El Paso field office do not receive post-18 plans. While Officer Beard allowed legal services providers like Diocesan Migrant & Refugee Services to email post-18 plans, Officer Juarez changed the office’s procedures and began requiring attorneys to deliver in person hard copies of the materials they had previously sent via email. Trial Tr. at 1506:4–12
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(Escontrias). Officer Hernandez continued the policy of requiring hard copy materials. Id. at 1514:25–1515:2 (Escontrias).
251. The El Paso office does not make detention alternatives available for age-outs. Officer Galvez has never released an age-out on an ICE bond or an ankle bracelet monitor and he was unaware of anyone else in his office having released an age-out using either alternative. Galvez Dep. Desig. at 80:15–81:10, 85:22–86:13, 87:6–12.
iv. San Francisco 252. The San Francisco office processed a smaller number of age-outs in comparison to some of ICE’s other field offices. Between October 17, 2018 and May 24, 2019 it processed sixteen age-outs and detained only four of them (25%).29 This was a significant shift from the time period for which data was produced before the AORW system was put in place, as the San Francisco office detained 59 of 77 age-outs it processed (77%) between April 2016 and October 17, 2018.30 PX-334 at 88–89; PX-334A at 394–400. Overall, then, between April 2016 and May 24, 2019, the ICE field office in San Francisco detained 63 of 93 age-outs it processed (68%).
29 The following sixteen AORWs came from the San Francisco field office: PX– 335.00007, PX–335.01955, PX–335.02270, PX–335.03355, PX–335.10458, PX–335.11798, PX–335.12040, PX–335.14570, PX–335.17801, PX–335.18631, PX–335.22692, PX–335.23359, PX–335.25794, PX–335.29740, PX–335.33224, PX–335.34258. Plaintiffs cite these AORWs directly to establish the 25% detention rate during this time period and Defendants do not dispute it. Defs.’ Resp. ¶ 334. Oddly, the Defendants’ summary charts, PX-334 and PX-334A seem to misstate the contents of these sixteen worksheets, as they show that the San Francisco office detained ten of the sixteen age-outs it processed between October 17, 2018 and May 2019. See PX-334 at 88–89; PX-334A at 394–400. The Court has reviewed the underlying AORWs and confirmed that the figures quoted in the briefing are correct.
30 Based on the Court’s comparison of unredacted selections from PX-334 with ICE’s raw data in PX-345, it does not appear that there are any problems with the San Francisco data summarized in PX-334 and PX-334A from the time period before the AORWs were used.
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253. Officer Joe Love was the primary FOJC in the San Francisco field office from October 2016 through September 2018. Love Dep. Desig. at 5:19–25. Officer Andrew Kaskanlian replaced him in that role and was the primary—and only—FOJC from October 2018 through August 2019, at which time he was promoted to SDDO. Trial Tr. at 2671:25–2672:6 (Kaskanlian); see also id. at 2673:17–18. Officer Kaskanlian testified at trial and the parties introduced designated testimony from Officer Love’s deposition, which was conducted in October of 2018.
254. The San Francisco office’s shift in September and October of 2018 from detaining most age-outs to releasing most of them thus coincides both with the introduction of the AORW and SharePoint reporting system, see PX-1, and with the changeover from Officer Love to Officer Kaskanlian, supra ¶ 253.
255. The San Francisco field office processes age-outs from one of the highest-security ORR shelters in the country, Yolo County Juvenile Detention Facility. Trial Tr. at 2680:16–24 (Kaskanlian). “[M]inors with more egregious backgrounds are housed” by ORR in this type of facility. Id. at 2680:22 (Kaskanlian). The four age-outs that the San Francisco office detained under Officer Kaskanlian all came from a medium- or high-security ICE shelter. See PX– 335.00007; PX–335.03355; PX–335.22692; PX–335.34258. The Court appreciates that under Officer Love, the San Francisco office may also have processed a disproportionate number of age-outs with “egregious backgrounds” relative to other field offices, but Defendants have not argued that this had any significant impact on the office’s detention rate.
256. If an age-out has no criminal history and has complied with all immigration court obligations, and is not a flight risk, the San Francisco office will typically release them on their
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own recognizance, either to an individual sponsor or to a shelter or group home. See Trial Tr. at 2743:18–2744:24 (Kaskanlian).
257. ICE officers in San Francisco relied on ORR or on legal services providers to arrange for placements with group home or shelters, they do not arrange for these placements themselves. Love Dep. Desig. at 65:14–66:4, 67:18–20; Trial Tr. at 2743:25–2744:12 (Kaskanlian); see also id. at 2681:2–8, 2738:22–2739:3 (Kaskanlian).
258. Officers in the San Francisco field office use the full range of detention alternatives available to them. Officer Love offered age-outs ICE bonds. Love Dep. Desig. at 18:11–12. He testified that he would first consider whether the age-out was a flight risk or danger to himself or the community, and would generally not offer ICE bonds if the age-out was a danger to himself or others. See id. at 19:3–14. Officer Kaskanlian has both given ICE Bonds and placed age-outs in the ATD program. Trial Tr. at 2687:7–21 (Kaskanlian).
d. Intermediate Detention Rates 259. The Court heard testimony concerning four additional ICE field offices for which the age-out detention rate over time did not stand out as particularly high, particularly low, or particularly indicative of fluctuation: Phoenix, Seattle, Los Angeles, and Washington D.C. The Court has relied on the testimony of officers from these offices in cataloging the general training and performance of ICE officers in the field. The custody determination outcomes in these offices are material to the extent that they were incorporated into the experts’ quantitative analyses of ICE’s decisionmaking, discussed below. At the same time, the particular procedures of field officers in these four offices warrant less discussion than those procedures in other offices that led to more uniform results. Accordingly, the Court discusses these four offices only relatively briefly here.
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i. Phoenix 260. The age-out detention rate in ICE’s Phoenix office fluctuated between April 2016 and
May 2019. See Defs.’ Resp. ¶ 521 (not disputing this). Plaintiffs do not suggest precise figures
for the age-out detention rate in the Phoenix office over time, possibly because of complications
resulting from mid-trial corrections to the Defendants’ Phoenix data. See Defs.’ Resp. in Opp’n
to Pls.’ Mem. in Supp. of Admitting their Demonstratives at 3–4, ECF No. 265; see also Pls.’ Mem. in Supp. of Admitting their Demonstratives at 7–9, ECF No. 262.31 Because the parties do not meaningfully rely on or emphasize the average rate of detention in the Phoenix office,32
neither does the Court.
261. Officer Nancy Zanello (formerly Nancy Sullivan) was the primary FOJC in the
Phoenix office from October 2016 through January 2019. Trial Tr. at 3772:5–12 (Zanello). She
testified at trial and was also deposed in February 2019. See Zanello Dep. Desig.
262. In the Phoenix AOR, ORR notifies FOJCs about one day before a UAC would turn
eighteen. Trial Tr. at 3834:1–3. Age-outs are picked up and brought to the Phoenix field office
on the morning of their eighteenth birthdays. Trial Tr. at 3834:4–11. The office’s policy is that
age-outs cannot remain at the office for more than twelve hours, and if they have not been
31 Plaintiffs’ demonstratives 12A, 13A, and 68 were admitted as Rule 1006 summaries of voluminous records. See Fed. R. Evid. 1006. The Court understands these charts to reflect the final version of the Phoenix data, but the Court is unsure whether the most up-to-date Phoenix data has itself been submitted into evidence. The summary information in PX-334A and PX-334 does not appear consistent with the demonstratives, and the raw form Phoenix data in PX-345 and the AORWs in PX-335 are too voluminous for the Court to reconstruct the data from them without clearer guidance from the parties.
32 At two points in their briefing Plaintiffs mention changes in detention rates at the Phoenix office and cite generally to PX-505, a May 9, 2019 email from Officer Helland attaching raw age-out documentation data dating back to April 2016. See Pls.’ Br. ¶¶ 525–26 (citing PX-505). Considering the scope of the data, which covers hundreds of age outs over several years, these general citations to PX-505 with no additional explanation or page reference are not sufficiently specific to support any claims about the Phoenix office’s detention practices.
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released to a sponsor by that point, they are taken to adult detention. Id. at 3834:12– 3835:12;Zanello Dep. Desig. at 57:24–58:2. Officer Zanello clarified at trial that transfer to adult detention at the end of the twelve-hour period was not necessarily indefinite—the age-out could return to the field office thereafter and FOJCs would continue working on arranging for a sponsor or for transportation. See Trial Tr. at 3834:15–3835:5. Nonetheless, they are sent to adult detention at least temporarily at the end of the twelve-hour period. Id.; see also Defs.’ Resp. ¶ 529 (not disputing this).
263. FOJCs in the Phoenix office make limited use of organizational sponsors and do not attempt to identify them on their own. Officer Zanello was only aware of one possible organizational sponsor in the Phoenix area, Casa Alitas. Trial Tr. at 3864:1–3, 3866:5–7. She had released age-outs there, but only when a local immigration non-profit affirmatively suggested it. Id. at 3865:11–19. She does not consider placing age-outs in out-of-state shelters. Id. at 3867:14–23.
264. FOJCs in the Phoenix office do not consider the full range of detention alternatives available to them. Officer Zanello has never released an age-out on an ICE bond and was not aware whether anyone in the Phoenix office had done so. Id. at 3873:12–20. She had never placed an age-out in the ATD program. Id. at 3873:6–8;Zanello Dep. Desig. at 117:10–12. She believed that ATD was only an option for families and that it could not be used for age-outs. Zanello Dep. Desig. at 243:18–244:14.
ii. Seattle 265. Between April 2016 and May 24, 2019, the ICE field office in Seattle detained 38 of 79 age-outs it processed (48%). PX-334 at 90–91; PX-334A at 401–31. The Seattle office processed only eleven age-outs between October 17, 2018 and the close of discovery on May 24, 2019, and detained seven of them. PX-334 at 91; PX-334A at 426–31.
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266. Officer Lika Black has been an FOJC in the Seattle field office since December of 2017. Trial Tr. at 2499:19–20 (Black). As of her testimony at trial she was detailed to the JFRMU unit in Washington, D.C. Id. at 2499:11–18
267. Officer Black uses data available in the UAC portal to keep track of upcoming likely age-outs and reaches out to UACs’ ORR shelters around one month in advance of their eighteenth birthday to ask whether they anticipate submitting a post-18 plan. Id. at 2518:1–20
268. The Seattle field office does not attempt to identify or arrange for placement with individual or organizational sponsors, and only releases age-outs to sponsors when ORR has proposed one in a post-18 plan. Id. at 2604:12–2605:6 Officer Black does not release age-outs other than to a placement suggested by ORR or an ORR contractor in a post-18 plan. Id. Her age-out custody determination decisions are therefore “more or less” a binary choice between the proposal in the post-18 plan or adult detention. See id. at 2605:15–22
269. FOJCs in the Seattle office do not consider the full range of detention alternatives available to them. Officer Black did not know what “Bond” referred to on the AORW at her deposition. Black Dep. Desig. at 46:17–19. She had never issued an ICE bond, did not know of anyone else in the Seattle office having done so, and did not know when it would be appropriate to do so. Id. at 20–24; Trial Tr. at 2607:4–11. At her deposition, she was unaware that she had the option of placing an age-out into ICE’s ATD program and was not aware of anyone else having done so. Black Dep. Desig. at 47:16–25, 180:23–182:12. By the time she testified at trial in December 2019, Officer Black had since released one age-out on ATD. Trial Tr. at 2607:24– 2608:1.
iii. Los Angeles 270. Between April 2016 and May 24, 2019, the ICE field office in Los Angeles detained 60 of 111 age-outs it processed (54%). PX-334 at 54–56; PX-334A at 185–217. Between
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October 17, 2018 and May 24, 2019 the Los Angeles office detained 66% of age-outs it processed. PX-334 at 55–56; PX-334A at 210–17; see also Pls.’ Demo. Ex. 12A.
271. Officer Oscar Irizarry, who has been an FOJC in the Los Angeles field office since 2013, testified at trial. See Trial Tr. at 3667:20–25.
272. Officer Irizarry recommended detaining eight of the eleven age-outs he processed between October 17, 2018 and May 24, 2019, while the AORW and SharePoint documentation system was in place. Id. at 3731:16–19 (Irizzary). The three age-outs he recommended releasing were all eighteen-year-olds with children of their own. Id. at 3731:20–22.
273. Officer Irizarry has not granted an ICE bond for an age-out because, he said, “[m]ost of the time they don’t have the money to pay” the $1,500 minimum. Id. at 3681:10–22. He did not explain why, even if true, they could not be given the opportunity to try to arrange for payment of the bond rather than face adult detention. He also had not released an age-out by using ICE’s ATD program, and he was not aware of anyone else in his office having done so. Id. at 3715:1–20.
iv. Washington, D.C. 274. Between April 2016 and May 24, 2019, the ICE field office in the District of Columbia detained 76 of 156 age-outs it processed (49%). PX-334 at 92–95; PX-334A at 432– 69.33 From October 17, 2018 through May 24, 2019, the D.C. office processed twenty-four ageouts and detained sixteen of them (66.7%). PX-334 at 95; PX 334A at 450–69.
33 Citing the same pages of PX-334A, Plaintiffs suggest that the Washington office detained only 41% of its age-outs during this time period. Pls.’ Br. ¶ 564. Defendants do not directly challenge Plaintiffs’ math, see Defs.’ Resp. ¶ 564 (disputing the proposed finding on other grounds), but, upon the Court’s calculation, the detention rate comes out to 48.7%.
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275. Officer Rebecca Jones has been FOJC in the Washington, D.C. field office since June of 2018. Trial Tr. at 4241:22–23 (Jones). She did not attend the April 2019 JFRMU training in San Antonio. Id. at 4245:7–8.
276. Between April 2016 and August 2018, two of the three ORR facilities from which the Washington field office received age-outs for processing were high security ORR shelters. Id. at 4265:15–4267:9 (Jones). Age-outs placed at these kinds of facilities were more likely to have criminal history, to have made escape attempts, or to have behavioral issues. Id. at 873:5–16 (Enriquez); id. at 2715:23–2716:23 (Kaskanlian); see also id. at 4265:11–13 (Jones) (colloquy with the Court in which Officer Jones suggested that age-outs coming from higher-security facilities were more likely to present reasons why detention might be appropriate).
277. Washington, D.C. FOJCs reach out to ORR facilities in advance of a UAC’s eighteenth birthday to request a post-18 plan. Id. at 4242:20–4243:3 (Jones). They also consider sponsors proposed by attorneys or by age-outs themselves. Jones Dep. Desig. at 33:16–34:15.
278. The Washington D.C. FOJCs do not maintain a list of potential shelters or group homes. Id. at 42:17–20.
279. The Washington D.C. field office does not place age-outs on ICE bonds. See Jones Dep. Desig. at 227:18–228:3.
280. Officer Jones has placed age-outs in ICE’s ATD program as a means of mitigating flight risk concerns. Trial Tr. at 4244:23–4245:2, 4272:3–21.
3. Expert Statistical Testimony 281. Plaintiffs presented expert testimony from economist Dr. Justin Lenzo. Dr. Lenzo holds a Ph.D. in economics, has taught courses in business analytics, and has worked as a consultant since 2014 focusing on empirical analysis. See Trial Tr. at 1891:21–1893:23 (Lenzo).
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The Court found him to be well-qualified to discuss and explain statistical methods and the forms of regression analysis that he performed here, and found him to be a credible witness.
282. Defendants presented rebuttal expert testimony from Dr. Qin Pan.34 Dr. Pan holds a Master’s degree in statistics and a Ph.D. in biostatistics, and is an associate professor of statistics at George Washington University. Id. at 3409:6–22. The Court found her to be well-qualified to discuss statistical methods and also found her testimony to be credible.
283. Dr. Lenzo and his team created a database in which they collected the contents of AORWs and SharePoint material produced by ICE (“age-out documentation”). They reviewed materials relating to all age-outs processed between October 17, 2018 and May 24, 2019— approximately the first seven months during which ICE was using the AORW and SharePoint documentation system. Id. at 1926:24–1957:10. During this time period, ICE processed 1,005 age-outs, and detained 285 of these. Id. (citing Pls.’ Demo. Ex. 7).
To collect data from this varied set of documents, they developed a form, PX-393, that could be filled out by reviewers in order to provide a consistent structure to all the information documented by field officers making detention decisions. See Trial Tr. (Lenzo) at 1897:21– 1899:10. The form, and the resulting database, focused on five primary questions: (1) was there “[a]ny evidence that [the] age-out was a danger to the community”; (2) was there “[a]ny
34 Defendants also presented, and the Court has reviewed, designated testimony from the deposition of Dr. Joseph L. Gastwirth, Dr. Pan’s coauthor on her rebuttal to Dr. Lenzo’s expert report. See generally Gastwirth Dep. Desig. While Dr. Gastwirth appears to be equally qualified, the Court did not find his deposition testimony added anything of substance to the testimony Dr. Pan provided in Court. In particular, the materiality of Dr. Gastwirth’s testimony was lessened by the fact that Dr. Gastwirth never reviewed the full scope of produced AORWs and SharePoint materials that Dr. Lenzo did. See Trial Tr. at 3606:2–3608:13 (Pan). Dr. Pan likewise had not formally updated the co-authored rebuttal report, see id. at 3608:5–111311, but she testified after hearing much of Dr. Lenzo’s testimony at trial. Her testimony is therefore a more reliable source for rebuttal arguments focused on the latest version of Dr. Lenzo’s opinions.
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evidence that [the] age-out was a danger to self”; (3) were any individual or organizational sponsors available; (4) was there evidence of “flight risk that might not be addressed by release to [a] sponsor”; and (5) were there any errors or omissions in the completed AORW. PX-393. For each question, sub-questions asked more detailed questions—primarily in yes-or-no format, and asked the reviewer to copy over additional information like remarks from the AORW or names of available sponsors. Id. The data that was collected regarding errors or omissions in the AORW was not used in Dr. Lenzo’s final analysis. Trial Tr. at 1910:22–1911:2.
284. In reviewing the age-out documentation in order to construct their database, Dr. Lenzo’s reviewers indicated any evidence that might indicate danger to the community, danger to self, or risk of flight, but did not assess whether such a danger or risk in fact existed or evaluate the degree of that danger or risk. Id. at 1899:15–22 (Lenzo); see also, e.g., id. at 1902:20–1903:2 (“Q: And if the age-out had any criminal history at all did [reviewers] look deeper to find out whether it was a nonviolent misdemeanor and just a charge so it shouldn’t be counted as a danger to the community? A: No, we did not. If there was any indication[] of criminal history, we counted that as evidence of potential danger to the community. We did not further evaluate it for severity or anything else.”).
Defendants do not dispute this description of the first stage of Dr. Lenzo’s analysis, but argue that “coding any evidence that might indicate danger to self, danger to the community, and risk of flight, regardless of severity, is a study design weakness” because “[i]n the real world, these variables are not binary.” Defs.’ Resp. ¶ 244 (citing Trial Tr. at 2011:14–2013:17 (Lenzo) (agreeing that these variables are not binary)); see also id. ¶ 252 (arguing Dr. Lenzo’s “oversimplified model . . . d[id] not capture the degree of each risk factor and the interactions between risk factors.”); Trial Tr. at 3467:6–10 (“[U]sing binary indicators for danger to
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community, danger to self and flight risk or potential sponsor cannot capture the complexity of all possible scenarios that were considered by ICE officer in making the decisions.”).
The Court does not see how this particular simplification would do any meaningful damage to the reliability of Dr. Lenzo’s analysis. His research question involved investigating the effect of “the presence or absence of the risk factors” identified in the statute on age-out custody decisions. Trial Tr. at 1934:14–18 (Lenzo). Presence or absence is necessarily binary, even if the underlying substance of the risk factor is not. Further, to the extent this necessary simplification distorts reality, it does so in a direction that is favorable to the Defendants. By coding any evidence that could suggest one of these risk factors equally, Dr. Lenzo, if anything, overvalued evidence of insignificant risks like misdemeanor charges that did not indicate a real danger to the community. Non-serious risk factors are grouped in with serious, obvious ones, so more age-outs are viewed as presenting the risk factors than actually would if they were considered on a case-by-case basis. Dr. Lenzo’s analysis essentially treats every borderline case as breaking in favor of there being a risk factor and from there, presumably, in favor of detention. His conclusion that the presence or absence of risk factors is not the strongest indicator of whether the age-out is detained is bolstered, not weakened, by the fact that he treated risk factors as binary and counted any minor indication of a risk factor as a positive on that binary assessment. This gives the officers the benefit of the doubt by essentially rounding up the degree of risk and treating any evidence of a risk factor (whether minor or serious) as an equally sufficient basis for a detention decision. While reducing the age-out documentation to quantifiable data necessarily required some simplification of the contents of the documents, the Court does not find that he oversimplified the data or that he simplified them in a way that weakens his conclusions.
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285. Turning to the availability of sponsors, Dr. Lenzo’s reviewers indicated that an individual sponsor was available only so long as the age-out documentation lacked any evidence of negative or derogatory information about a potential sponsor—including criminal history or unwillingness to serve as a sponsor. Id. at 1904:16–1905:11. This likely resulted in at least some undercount of available sponsors, because potential sponsors could be found in Forms I-213, which were only created and available for review for about ten percent of the age-outs. Id. at 1905:12–1906:16; see also Defs.’ Resp. ¶ 246 (acknowledging that a Form I-213 was not always included in the SharePoint materials, but noting that information from a Form I-213 could have been duplicated elsewhere in the SharePoint materials that were available).
286. Lack of ORR approval was not treated as negative or derogatory information. If the age-out documentation contained evidence that a potential sponsor existed but that this potential sponsor had not been approved by ORR, Dr. Lenzo would code that sponsor as available. Id. at 1909:7–11. This makes sense because, as indicated before, ORR applies different criteria for the sponsors of children than what ICE applies for adults, including age-outs. Thus, the fact that ORR may have found a potential sponsor unqualified under ORR sponsorship criteria does not negate the viability of that individual as a sponsor under ICE’s criteria, to the extent any ICE criteria exist.
287. For organizational sponsors or group homes, Dr. Lenzo’s team first consulted a list of such potential sponsors prepared by counsel for Plaintiffs which indicated that shelter or group homes existed in all of ICE’s AORs except for Los Angeles and San Diego. Trial Tr. at 1906:22–1907:12 (Lenzo) (identifying PX-463 as a modified version of the list); see also id. at 1700:1–1701:9 (the Court accepting PX-463 into the record as a demonstrative, but not admitting
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it as an exhibit).35 For age-outs from every office except Los Angeles and San Diego, Dr. Lenzo essentially assumed an organizational sponsor or group home was available unless there was evidence to the contrary in the AORW. See id. at 1906:20–1908:7. That is to say, if there was any indication in the AORW or SharePoint material that an ICE officer had considered placing the age-out with an organizational sponsor, but that it was not a viable placement for some reason (bed space, amenability to taking age-outs), that organization would not have been considered an available sponsor. Id. at 1907:24–1908:7. However, because most field offices had more than one potential organizational sponsor or group home in their AOR, Dr. Lenzo would still have considered other organizational placements available for age-outs. See id. at 2024:7–11 (“I believe we did find instances where one of these organizational sponsors was considered and rejected. But there were other organizational sponsors available in the AOR, and so there was still a potential sponsor for that age-out.”). Dr. Lenzo did not recall there being more than a handful of age-outs for whom there was no organizational sponsor deemed available based on ICE’s having considered and rejected every available organizational sponsor or group home in the AOR. Id. at 2023:9–2024:24.
35 Defendants argue that “Plaintiffs elicited no evidence of an established organizational sponsor that operated a shelter in the Miami AOR that could accept age-outs.” Defs.’ Resp. ¶ 229. This is not accurate. The Court admitted PX-485 into evidence. See Trial Tr. at 2321:18–2322:16. This exhibit is a list of shelters created by Lisa Lehner, an attorney at Americans for Immigrant Justice, id. at 1281:12–13, 1318:1–1319:5, 1404:6–10. The list encompassed shelters at which her organization had placed UACs, and she had shared the list with ICE in an effort to get the Miami office to place age-outs at some of these shelters. Id. at 1318:1–13. Two of the shelters on the list were in the Miami AOR. Id. at 1318:16; see also PX485. While some shelters that accepted children may not have accepted eighteen-year-olds, Defendants did not cross-examine Ms. Lehner on that theory. And, regardless, the list included shelters from around the country, some of which did accept adults, so the Miami office had more reason than most to have realized that shelters outside their AOR would accept age-outs.
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288. Defining sponsor availability in this way resulted in 268 of 285 detained age-outs (94.0%) being coded as having potential individual or organizational sponsors. Pls.’ Demo. Ex. 8. Of these, 153 were coded as having individual sponsors available, id., which means that 115 detained age-outs (40.4%) were coded as having a sponsor available based only on the availability of an organizational sponsor as Dr. Lenzo defined it.
289. Dr. Lenzo did not instruct his team to consider conclusory assertions on AORWs as constituting evidence. For example, Dr. Lenzo would not code a sponsor as unavailable if a potential sponsor was listed on the AORW or was identifiable in the accompanying materials but the AORW said “no viable sponsor” without indicating why the sponsor was not viable. See Trial Tr. at 1908:21–1909:6 (“I would not have coded that as not an available sponsor. . . . [T]hat’s a conclusion, that’s not evidence.”). Likewise if an AORW contained the phrase “flight risk” but no indication as to a reason why an age-out was a flight risk, Dr. Lenzo would not have coded this as evidence of a flight risk that would not be addressed by release to a sponsor. Id. at 1910:3–13.
290. Synthesizing the information from the age-out documentation in this way yielded the following results: 285 age-outs were detained between October 17, 2018 and May 24, 2019. Of these, 229 (80.4%) had individual or organizational sponsors available and ICE had recorded no evidence that they presented a danger to themselves, danger to the community, or risk of flight that could not be mitigated by release to a sponsor. Trial Tr. at 1927:16–1928:12 (Lenzo); see also Pls.’ Demo. Ex. 7. This means that only 19.6% of detained age-outs in this time period had age-out documentation showing evidence of one of the statutory risk factors and had no sponsor (that had not been affirmatively investigated and rejected). Trial Tr. at 1930:3–11 (Lenzo).
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Defendants and their expert Dr. Pan do not dispute these figures directly but argue that Dr. Lenzo did not take “sponsor viability” into account. See Defs.’ Resp. FF ¶ 249. Dr. Pan challenges Dr. Lenzo’s assumptions about both individual and organizational sponsors. For individual sponsors, they reject Dr. Lenzo’s assumption that an identifiable sponsor was available unless ICE documented evidence indicating that they were not. See Trial Tr. at 3445:1–3446:5 (Pan). Dr. Pan took at face value an FOJC’s response of “no” to question 12 on an AORW (“Are there any individual or organizational sponsors . . . available . . . ?”), id. at 3441:6–3443:9, and further assumed that an organizational sponsor was not available unless there was a specific reference to that sponsor in the AORW or SharePoint materials, id. at 3568:12–17. Under Dr. Pan’s set of assumptions, only around seven percent of detained ageouts had “viable” sponsors, id. at 3445:3–16, and only around three percent of detained ageouts—rather than Dr. Lenzo’s 80.4%—had no statutory risk factors and a viable sponsor, id. at 3447:21–3448:13. More broadly, Defendants argue that Dr. Lenzo’s assumptions surrounding the availability of organizational sponsors and group homes “did not reflect reality.” Defs.’ Resp. ¶ 247.
It bears repeating that although ICE generally requires that sponsors be deemed “viable,” and although over one hundred AORWs stated “no viable sponsor” as part of the reason why an age-out was detained, ICE does not have a definition of viability or any articulated standards for assessing it. See supra ¶¶ 150–51; see also Trial Tr. at 3432:11–3433:15 (colloquy between the Court and Dr. Pan regarding her definition of viable, which she agreed was not based on any “ICE guidance” or “formal definition” but which instead “just mean[t] the ones without negative comments or negative evidence”). Though they phrase their dispute in terms of “viability,”
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Defendants are essentially arguing only for a different set of presumptions and assumptions about which age-outs could potentially have been placed with sponsors.
Defendants are correct that Dr. Lenzo’s count is likely not a completely accurate measure of the reality of how many age-outs could have been placed if ICE wanted to place them. But the Court does not understand Dr. Lenzo to have ever claimed as much. This type of after-thefact analysis based on documentation can only approximate the facts on the ground at the moment of the custody determination based on the information that ICE provided. The true and historically accurate count of how many age-outs could have gone to sponsors is not calculable in hindsight, though it likely falls somewhere in between Dr. Lenzo’s count and Dr. Pan’s. The Court must then evaluate which statistician suggests the set of assumptions that better approximates reality, and, more specifically, whether Dr. Lenzo’s assumptions are reasonable and whether they have been undermined by Dr. Pan’s critiques. Despite some argumentation in the parties’ briefing about the difference between “structured data” versus “unstructured data,” see, e.g., Defs.’ Br. FF ¶ 712, the Court does not understand the disagreements about how to count available sponsors as ones that require any kind of advanced statistical analysis or understanding to resolve. Rather, these disagreements require a decision about which default rules and assumptions will make the statistical model more closely resemble the real world. Having heard extensive testimony concerning ICE’s age-out documentation procedures, the Court is well positioned to make factual findings about which set of assumptions are most reasonable. Considering everything the Court has learned concerning ICE’s age-out custody determinations, and the facts it has found, the Court finds that the assumptions about sponsor availability made by Dr. Lenzo are reasonable and that Dr. Pan’s challenges do not call into question his methodology.
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Regarding individual sponsors, Dr. Pan recommended taking AORW responses “at face value,” id. ¶ 714, and trusting that there was no individual sponsor available so long as Item 12 on the AORW indicated as much, Trial Tr. at 3441:6–3443:9 (Pan); id. at 444:9–11. This is a particularly credulous approach to mining data from the age-out documentation considering the several ways in which Plaintiffs demonstrated their unreliability. As Plaintiffs’ counsel demonstrated repeatedly at trial and in depositions, a statement on an AORW that a sponsor is not “viable” does not necessarily mean that no sponsor was available. Officer Hyde, for example, admitted that “it wasn’t truthful” when an FOJC answered “no” for Item 12 on one particular AORW, id. at 3374:24 (Hyde), and indicated in the remarks section that a particular shelter had not provided a post-18 plan, id. at 3375:13–21; see generally id. at 3365:12–3375:21 (discussing DX-60). On another AORW reviewed with Officer Hyde, ICE had the name and phone number of a family member and potential sponsor, and an FOJC indicated there was no sponsor, without documenting any attempt at contacting this family member. Id. at 3392:8– 3399:21 (Hyde) (reviewing DX-64). ICE generally viewed sponsors with whom ORR failed to place age-outs as not “viable” sponsors, despite a lack of any articulable reasons why ICE ought to follow ORR sponsorship standards in deciding to whom age-outs could be released. See, e.g., supra ¶¶ 157–63. On top of this, significant testimony showed that many AORWs were filled out long after a custody determination was made, or by an officer who did not make the custody recommendation, or under JFRMU’s instruction in advance of a deposition. See, e.g., supra ¶¶ 63–67.
Dr. Pan admitted that her method would treat the answer to Item 12 as accurate even when there was substantive evidence in the age-out documentation that contradicted the conclusory “no” response. Trial Tr. at 3601:10–21 (“Q. . . . [Y]ou testified that you relied on a
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no answer to [Item 12] even where there was contrary evidence? . . . A. Yes, I did.”)); see also id. at 3458:7–12 (“The Court: So if the officer clicked no . . . you took that as a given? [Dr. Pan]: I took that as a no.”). On cross-examination, Plaintiffs’ counsel illustrated the flaws with Dr. Pan’s “face value” approach to age-out documentation in a few analogous contexts: Dr. Pan admitted that certain AORWs indicated that an age-out was a “flight risk, danger to the community, or danger to themselves” and checked the box for “other credible threat,” but with purportedly explanatory remarks that bore no relation to any type of threat or danger. Id. at 3482:20–3483:3. Another group of AORWs indicated that age-outs were flight risks because they had removal orders pending, but a review of the substance of their SharePoint materials revealed that the orders were not entered until after the age-out was placed in custody by ICE. See id. at 3518:7–3528:4.36
Elsewhere in her testimony, Dr. Pan noted that her model was “much more likely to observe the detention or release outcomes in real life,” meaning that “[her] definition [of sponsorship] is closer to the real factors that were considered by the field officer.” Id. 3453:23– 3454:3; see also id. at 3455:13–17 (“[S]tatistically our model fits better. And the reason is the viable sponsor, it’s closer to the true outcomes, the consideration in real life what they relied on. They didn’t rely on the assumption of everyone has a sponsor . . . .”); id. at 3464:4–8; 3473:19–
36 There were nineteen age-outs coded by Dr. Lenzo as not presenting risk factors whom Dr. Pan did code as having risk factors based on a face value evaluation of Item 8 on the AORW. See Trial Tr. 3474:16–3475:24 (Pan). The testimony cited in this paragraph comes from Plaintiffs’ cross-examination of Dr. Pan regarding these nineteen age-outs. At this stage, Defendants do not appear to dispute Dr. Lenzo’s evaluation of the documentation for these ageouts. See Defs.’ Resp. ¶¶ 239–57 (raising no challenge to these aspects of Dr. Lenzo’s work); see also Trial Tr. at 3453:6–15 (Pan) (“The only difference, in fact, from my regression and Dr. Lenzo’s regression is the definition of the sponsor. Again it’s the sponsor that we differ. Others are all the same variables, the same dataset[.]”). For the same reasons discussed in this paragraph, the Court finds that Dr. Lenzo’s method of counting evidence of the statutory risk factors is reasonable and preferable to taking the AORWs at face value.
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20 (“[T]he main thing is sponsor availability -- available, viable sponsor.”). The Court does not find this compelling, as it presumes that field officers were following the correct factors and the law. That was the question that the Court set out to decide at trial, and cannot be taken as a given. If, as seems to be the case, ICE officers were stating that there were no viable sponsors in cases where in fact there were viable sponsors, then of course an officer’s statement that there was no viable sponsor would be a good predictor of a detention decision. But it would reveal nothing about the officer’s actual attention to the statutory factors or consideration of placement in the least restrictive setting.
Consider, by way of analogy, an employer using a similar form to document hiring or promotion decisions. If that form included a box that could be checked to indicate whether an applicant was qualified, and if that employer were sued for discrimination, no court would take at face value the employer’s forms indicating that white applicants were qualified and nonwhite applicants were not. Courts would look for evidence of the applicants’ qualifications. Any statistical analysis of applicants’ qualifications that took the boxes at face value would be useless. Dr. Pan suggests doing just that here. Her analysis even disregards contrary substantive evidence.
Dr. Pan further testified that, to the extent she did evaluate substantive information contained in the age-out documentation that might have affected whether sponsors were viable, evaluations were made by Dr. Pan and her assistant, “just by [their] judgments.” Id. 3433:8– 3434:4. This methodology is, perhaps, a necessary consequence of ICE’s lack of standards for sponsor viability. Nonetheless it is not a methodology that would necessarily approximate the reality of sponsor availability more accurately than Dr. Lenzo’s method of designating sponsors unavailable so long as some substantive derogatory information was found. This method took
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into account any evidence that ICE had found an individual sponsor was not viable. Id. at 1904:16–1905:11 (Lenzo). Because ICE officers were instructed to document all considerations that went into their custody determination, see PX-1 at 1, any such information should have been recorded on the AORW. Assuming derogatory information when none was presented is speculative.
Turning to organizational sponsors, the Court first observes that Dr. Pan and defense counsel mischaracterized Dr. Lenzo’s method as having “assumed that anyone sent to [13 field officers with shelters in their AOR] has a potential sponsor.” Trial Tr. at 3422:17–24 (Pan); id. at 3447:23–3448:1 (question by Ms. Parascandola referencing “Dr. Lenzo’s assumption that a sponsor was available” for these age-outs); id. at 3435:17–18 (same). As Dr. Lenzo testified, he did not make such a blanket assumption. Rather, he assumed that these organizational sponsors in the area of a field office were available only if the age-out’s AORW and SharePoint materials lacked evidence of ICE’s having considered and rejected them. See id. at 1905:25–1907:8, 1907:24–1908:7, 2024:7–11 (Lenzo).
The Court considers it self-evident that there were limits on the capacity of shelters and group homes, and that it may not necessarily have been the case that 94% of age-outs could realistically have been placed in one on the precise day they turned eighteen. At the same time, placing a significant number of those age-outs would not necessarily have been impossible. Testimony at trial showed that when FOJCs made efforts to locate organizational sponsors for age-outs who did not have individual sponsors, they were able to do so in almost all instances. See supra ¶¶ 215 (San Antonio); 225 (Harlingen after September 2018); 233 (Chicago after September 2018). Moreover, this analysis is conservative in that it treats as available only organizational sponsors from a field office’s particular AOR. In reality, some shelters accepted
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age-outs from throughout the country. See supra ¶ 42 (citing Trial Tr. at 1317:14–25 (Lehner) (testifying that age-outs processed by the Miami field office have been placed at Viator House in Chicago and at La Posada and Casa Marinella in Texas)). Dr. Lenzo did not take this into account, see Trial Tr. at 1929:6–25 (Lenzo), so he may have missed some proportion of age-outs who could have been placed with a shelter outside the processing office’s AOR.
To the extent that Dr. Lenzo does overestimate the availability of organizational sponsors, he does not seem to have done so to such a degree as to call his broader analysis into question. Dr. Lenzo explained that he considered the possibility that he was assuming too much in regard to organizational sponsor availability and ran a “robustness check” which confirmed that this assumption was not driving the statistical analysis. Trial Tr. at 1942:9–1943:20; see also id. at 2023:16–21. While Defendants challenge the reasonableness of Dr. Lenzo’s assumptions about organizational sponsors, they do not suggest that Dr. Pan identified this assumption as having any kind of outsize influence on Dr. Lenzo’s conclusions. The Court expects that if the assumption about organizational sponsor availability made a significant difference in the conclusions Dr. Lenzo put forward, Dr. Pan would have so testified. It makes sense that this assumption would not have a large impact on the overall analysis because the availability of organizational sponsors is somewhat ancillary to the main conclusions Dr. Lenzo reaches in his analysis, which concern the relative effect on age-out custody determinations of the risk factors identified in Section 1232(c)(2)(B) and the field office making the custody determination. Dr. Lenzo’s analysis would certainly have been more robust if he had been able to account for variables like bed space availability on a given night, but the kind of regression analysis that Dr. Lenzo was attempting to perform necessarily requires some simplification and reduction of the nuances of particular cases, and the Court understands him to have taken
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reasonable precautions in his analysis to avoid making any assumptions that would overly distort his results.37
Finally, considering as a whole the assumptions that Dr. Lenzo made in synthesizing ICE’s production into a manageable database format, the impact of the Plaintiffs-favoring aspects of his assumptions about both individual and organizational sponsors are arguably mitigated somewhat by his Defendants-favoring assumptions, including (a) that organizational sponsors outside an office’s AOR were not available for placement, see supra ¶ 290; (b) that weak indications of risk factors should be considered on par with strong ones, see supra ¶ 284; and (c) that no individual potential sponsor was available when the SharePoint materials were missing a Form I-213, see supra ¶ 285. These assumptions do not all directly offset Dr. Lenzo’s assumptions about organizational sponsor availability, but they contribute to Dr. Lenzo’s credibility and rigor by demonstrating that he did not attempt to draw every possible assumption in favor of Plaintiffs.
291. Having thus determined the presence or absence of the statutory risk factors and the availability of sponsors—as reflected in the age-out documentation—Dr. Lenzo performed two
37 Defendants did not produce any analysis of available bed space either, and the Court suspects that doing so would not have been feasible for either party. Dr. Lenzo and his firm should not be criticized for not undertaking an analysis that would have increased exponentially the resources his firm put into this case. So long as the analysis performed was adequate—as it is here—an expert need not disprove every possible alternative theory, especially when there is no factual basis. The testimony was clear that FOJCs who attempted to place age-outs with organizational sponsors were able to do so in nearly every case. See supra ¶¶ 210–15 (San Antonio); 225 (Harlingen after September 2018); 233 (Chicago after September 2018). Although Defendants intimate that Dr. Lenzo should have considered bed space availability, they point to no testimony from any ICE officer suggesting that availability of bed space at organizational sponsors was an obstacle to release. See, e.g., Defs.’ Br. FF ¶ 654; Defs.’ Resp. ¶¶ 242–57 (responding to Plaintiffs’ discussion of the expert statistical testimony).
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sets of statistical analyses seeking to explain the disparities in detention rates across different field offices. Trial Tr. at 1930:12–19.
292. Dr. Lenzo’s first analysis asked “whether the presence or absence of the risk factors among age-outs could explain the disparities” between field office detention rates. Id. at 1934:14–18. This involved looking only at those age-outs for whom there was no evidence of any of the statutory risk factors in their age-out documentation and determining whether the different field offices determined members of this subset of age-outs at rates different enough to be statistically significant. Id. at 1934:19–1935:5. Dr. Lenzo concluded that “[t]he differences in assortment of risk factors among age-outs assigned to offices cannot explain the differences we see in . . . detention rates across those offices.” Id. at 1935:17–22.
293. Dr. Lenzo’s second analysis was designed to control for a variety of variables including field office and the presence or absence of evidence for each risk factor, with the aim of evaluating whether the offices’ different detention rates could be explained by the presence or absence of the risk factors or of any particular risk factor. See id. at 1935:23–1937:21. This analysis was able to compare how much more likely an age-out was to be detained if, for instance, he was processed by a particular office or if his file contained evidence of one of the statutory risk factors. See id. at 1938:11–1940:13 (referencing Pls. Demo. Ex. 16 and explaining the regression analysis). From this, Dr. Lenzo concluded that, holding all else equal, an age-out was more likely to be detained if processed by one of six ICE field offices—Houston, Miami, El Paso, New York, Los Angeles, or Phoenix—than if that age-out’s documentation contained evidence of any of the statutory risk factors—danger to community, danger to self, or risk of flight. See id. at 1940:3–13, 1941:3–10. Dr. Lenzo then ran a further analysis to confirm that the
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field office “matter[ed] significantly to the probability the age-out is detained, even once controlling for risk factors,” and confirmed that it did. Id. at 1941:11–16.
294. The second analysis confirmed the outsize influence of the field office on age-out custody determinations. Age-outs were determined to be 12.7% more likely to be detained if their documentation contained evidence of any one risk factor, and 28.0% more likely to be detained if their documentation contained evidence of all the risk factors. Id. at 1943:11–1945:2 (discussing Pls.’ Demo. Ex. 19); id. at 1945:8–1946:17(discussing Pls.’ Demo. Ex. 18). Field offices mattered much more: age-outs processed by the Houston office were over 90% more likely to be detained than otherwise identical age-outs processed by the San Antonio office. Id. at 1946:1–17; see also Pls.’ Demo. Exs. 18, 19. The same was true for the Miami office. See id. Age-outs processed in El Paso were over 80% more likely to be detained, New York over 60%, and Los Angeles and Phoenix also showed significant increases. See id.
295. Defendants do not dispute these characterizations of Dr. Lenzo’s methods and opinions but challenge that his model was “oversimplified” or “defective.” SeeDefs.’ Resp. ¶¶ 252–53. The Court has already addressed the argument that the model oversimplified the assessment of risk factors in particular by treating them as binary. See supra ¶ 284. More broadly, Defendants and Dr. Pan challenge the application of a regression model in the first place, charging that it “oversimplifies real world conditions, and any Field Office location effects estimated from such regression models could result from other factors such as the characteristics of the age-outs assigned to a particular Field Office.” Defs.’ Br. FF ¶ 756–57. The Court does not find this critique convincing.
Dr. Pan’s critique of using regression analysis as a methodology amounts primarily to the position that more complex forms of analysis might provide better information if they could be
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brought to bear on the question at hand—but Dr. Pan acknolwedged that this was not possible. Trial Tr. at 3580:15–3581:25. As Dr. Pan explained at trial, “to mimic the process of the decision process of field officers,” and to avoid oversimplifying, “you need something like a random forest or recurrent neural network . . . to reflect the complicated detailed thinking process.” Trial Tr. at 3425:20–25. She admitted, though, that such analyses would be impossible here because there are not nearly as many data points (age-outs) as would be needed to set up algorithms of these sort. Id. at 3426:1–16. Because these more precise methods could not be applied here, Dr. Pan suggested that the best way to understand ICE officers’ decisions would be to review the limited set of age-out documentation to see what reasons they provided. See id. at 3426:17–3427:22. She and her assistant had done this, and “summarized” the officers’ records. Id. Simply looking at the stated reasons on the worksheets, of course, does not require expert statistical analysis. As the Court noted at trial—and as Dr. Pan agreed—hearing “three weeks of testimony of the actual decision makers,” would be a better way of evaluating compliance with the law than simply working from a summary of the documentation produced by Dr. Pan and her assistant. Id. at 3427:23–3428:11 (Dr. Pan colloquy with the Court).
This does not amount to a compelling critique of Dr. Lenzo’s regression methodology. The fact that a more complex but practically impossible statistical technique might have revealed more does not show that regression did not reveal what Dr. Lenzo asserts it did. The Court agrees with Dr. Pan that there are limits to regression analysis and that it is useful to review the substance of the worksheets and to “interview each field officer, go through the case and judge is this good practice, is this complying [with] the law.” Id. at 3428:2–5. This too does not mean the regression analysis is improper or unhelpful. Instead it describes the substance of the extensive non-expert testimony and evidence that the Court has taken under consideration and
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has used to assess the credibility of Dr. Lenzo’s work. This testimony was highly relevant to the Court’s evaluation of Dr. Lenzo’s methodology, as the Court applied its understanding of ICE’s practices and policies in determining that Dr. Lenzo’s assumptions about risk factors and sponsor availability were appropriate.
296. Dr. Pan did not challenge Dr. Lenzo’s execution of the regression methodology. Though she formed the opinion that regression was inappropriate at some point after drafting her report and after testifying at her deposition, her rebuttal report agreed with Dr. Lenzo’s analysis that differences in prevalence of risk factors did not fully explain why El Paso, Houston, Los Angeles, Miami, New York and Phoenix had significantly higher detention rates than other offices. See Trial Tr. at 3578:23–3579:19. This was true even when risk factors were identified in the way Dr. Pan proposed—by taking the AORWs at face value. Id. at 3586:21–3588:6. Dr. Pan and her coauthor Dr. Gastwirth tested a number of other independent variables to attempt to explain the variations in detention rates, and nothing they could come up with—availability of counsel for age-outs, third-party involvement, country of origin, field office caseload, number of days in ORR custody, or ORR bed space—was significantly correlated with detention decisions. Id. at 3559:7–3565:13.
297. Defendants raised a new argument for the first time in their Addendum to Defendants’ Responses to Plaintiffs’ Proposed Findings of Fact and Conclusions of Law Concerning Liability. ECF No. 323. In this document they argue that Dr. Lenzo and Plaintiffs “make the fatal mistake of ignoring community environment, including the availability of viable sponsors.” Defs.’ Resp. ¶ 218. The Court has already addressed Dr. Lenzo’s assumptions about sponsors. To the extent that “community environment” means anything more, this argument is underdeveloped, unexplained, and waived by virtue of having been raised for the first time in a
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response to Plaintiffs’ Proposed Findings. The phrase “community environment”—which was not uttered once in eighteen days of trial—appears over twenty times in Defendants’ Addendum to their Responses, but is nowhere defined. Defendants say that “community environment” includes “factors such as the availability of a viable sponsor . . . , the level of cooperation provided by the local ORR contractor, and whether the FOJC was provided a Post-18 Plan.” Id. ¶ 224.
It is unclear whether Defendants mean for “community environment” to be a new concept, or whether it is simply a grab-bag reframing a collection of arguments made elsewhere. The Court has addressed each of the identified elements of community environment. As explained above, the Court found Dr. Lenzo’s assumptions about sponsors to be reasonable. Regarding Post-18 plans, Dr. Pan considered whether “NGO organization[s] help[ing] in locating potential sponsors or providing post-18 plans” correlated with detention outcomes and found that it did not. Trial Tr. at 3561:23–3562:8. And the Court has explained that a high rate of detention could reasonably lead third parties to choose not to bother submitting post-18 plans. Supra ¶ 156. ORR officials could have reached the same conclusion. Dr. Pan did not test for effects of “community environment” nor did she address it in her testimony. There is no evidence of any understood meaning of the term. To the extent that Defendants meant for “community environment” to refer to something new, they have waited far too long to raise it and have thus waived the argument. See Campbell v. District of Columbia, No. 12-cv-1769, 2016 WL 3023977, at *8 (D.D.C. May 25, 2016) (“[B]ecause the District waited until after trial to raise it, the District has waived this argument . . . .”) (citing Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (explaining that Rule 59(e) motions
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cannot be used as “as a vehicle for presenting theories or arguments that could have been advanced earlier”)).
298. As the Court has observed, statistical experts are not required to disprove every possible speculative and unsupported theory about what could be driving detention rates. See supra n.37 (discussing shelter bed space availability). As Dr. Lenzo noted, proper statistical analysis should focus on “legally relevant” factors and on those for which there was data. Trial Tr. at 2074:5–14 (responding to Defendants’ counsel’s question whether it would be significant if “the age-out . . . was wearing red shoes” correlated with detention decisions, id. at 2073:16– 21). Where one party’s statistical expert is able to demonstrate a statistically significant correlation, and where the rebuttal expert is unable to make a stronger case for any other plausible factor or to disprove the first expert’s methods or implementation of those methods, this is enough for a court to make a finding of fact in line with the first expert’s conclusions.
299. Considering Dr. Lenzo’s testimony as a whole, which the Court finds corroborative of the evidence presented in exhibits and witness testimony, the Court finds as Dr. Lenzo did, that variations in the statutory risk factors presented by age-outs at different ICE field offices do not explain those offices’ varying propensities to detain the age-outs they process.
IV. CONCLUSIONS OF LAW Having established and explained its findings of fact, the Court now provides its conclusions of law.
A. Administrative Procedure Act Plaintiffs’ claims are brought under 5 U.S.C. § 706 which 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,
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or otherwise not in accordance with law.” 5 U.S.C. § 706. The APA provides for judicial review of all “final agency action for which there is no other adequate remedy in a court,” id. § 704, except when “statutes preclude judicial review” or the “agency action is committed to agency discretion by law,” id. § 701(a). The Court has already ruled on the applicability of the APA to Plaintiffs’ claims. See MTD and Class Cert. Op. at 44–55. Here the Court briefly summarizes its prior holdings and addresses a few discrete issues that are still disputed.
The APA “applies, according to the provisions thereof, except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). Neither exception applies here. The language of the statutory provision features no terms either expressly or impliedly precluding judicial review. Compare 8 U.S.C. § 1232(c)(2)(B), with, e.g., 8 U.S.C. § 1226(e) (stating that “discretionary judgment regarding the application of [Section 1226] shall not be subject to review”). No legislative history suggests otherwise. See MTD and Class Cert. Op. at 47. The agency action required by § 1232(c)(2)(B) is not in one of the “categories of administrative decisions” that Courts have held unreviewable. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006). Nor is the statutory text “drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); see also MTD and Class Cert. Op. at 48–49. Defendants do not challenge the application of the APA at this stage, but do correctly emphasize that, as the Court has previously ruled, the Court’s review only extends to the decisionmaking process established by Section 1232(c)(2)(B), and not to the substance of the individual age-out custody determinations. See MTD and Class Cert. Op. at 35 n.8 (“As
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Plaintiffs appear to recognize, they have no legally protected interest in any particular
placement . . . .”); Defs.’ Resp. ¶ 611.38
Plaintiffs’ challenges to ICE’s conduct also met the APA requirement that challenged
conduct be a final agency action. Again, the Court has already so determined, MTD and Class
Cert Op. at 50–53, and Defendants do not dispute this at this stage, Defs.’ Resp. ¶ 612. The 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) (emphases added). 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”). As the Supreme Court established in Bennett v. Spear, 520 U.S. 154
38 Inconsistent with this correct description of the scope of the Court’s review, Defendants have argued in their responsive briefing on remedies that “[u]nder the APA’s arbitrary and capricious standard, this Court must defer to the agency, and indeed must grant extra deference to agency decisions made under Section 1232(c)(2)(B).” Defs.’ Remedies Mem. Resp. at 5. This argument misunderstands what is at issue in this case. ICE would certainly be entitled to some level of deference regarding the outcomes of age-out custody determinations, and that is why there is no entitlement to any particular placement for any particular age-out. However, ICE is not entitled to any deference when it comes to whether or not it follows the required procedures laid out in Section 1232(c)(2)(B). Sas Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (“[W]e owe an agency’s interpretation of the law no deference unless . . . we find ourselves unable to discern Congress’s meaning.”); see Chevron, U.S.A. Inc. v. Natural Res. Def. Council., 467 U.S. 837, 843 n. 9 (“If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”). Nor is the agency entitled to deference with regard to whether certain documentation—like an AORW—demonstrates compliance with the statute’s required procedures. To defer on that question would be to defer to the agency on the question of whether they have complied with the statute, and that is indisputably the Court’s role.
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(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.” Id. at 177–78 (internal quotation marks and citations omitted). Plaintiffs have challenged final agency action subject to review under the APA. They seek to compel Defendants to conduct the inquiry that the statute mandates they conduct before determining where to place each former unaccompanied minor now in DHS’s care and custody. See MTD and Class Cert Op. at 52–53 (citing P.I. Op. at 18–20).
Turning to matters that remain disputed, Defendants contest whether age-outs who are detained without ICE following the requirements of Section 1232(c)(2)(B) suffer irreparable harm. See Defs.’ Resp. ¶ 613 (“Defendants dispute that an irreparable harm exists here.”). The Court has already rejected this argument. As it explained when granting a preliminary injunction with regard to the named Plaintiffs, “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” and “have likewise recognized that the ‘major hardship posed by needless prolonged detention’ is a form of irreparable harm.” P.I. Op. at 36–37 (quoting R.I.L-R v, Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) and citing Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37, 53 n.20 (D.D.C. 2002)). “[W]here 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.” Id. at 37 (citing R.I.L-R, 80 F. Supp. 3d at 191). Defendants argue that any injury “is quite reparable—this Court merely need instruct the agency to perform the step of
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consideration.” Defs.’ Resp. ¶ 613. As the Court already explained, this kind of re-evaluation would not “lessen the harm associated with each additional day Plaintiffs endure purportedly inappropriate detention.” P.I. Op. at 37. The harm that detention causes to age-outs was established at trial by Plaintiffs’ pediatric expert Dr. Linton, see supra ¶¶ 23–26, and was not contested by Defendants, see supra ¶ 27 (quoting Trial Tr. at 2423:16–17 (Mr. Kisor agreeing with the Court that “this is not going to be a contested issue”). While the procedural injury could be rectified, the lasting harm from detention could not be.
Last, Plaintiffs have no alternative adequate remedies at law.39 See 5 U.S.C. § 704 (exempting from judicial review agency action for which there is an “adequate remedy in a court”). The Court has addressed the lack of other adequate remedies in two prior orders. P.I. Op. at 22–25; MTD and Class Cert. Op. at 53–55. As the Court explained, “[w]hen 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.” MTD and Class Cert Op. at 53 (quoting Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (“CREW”), 846 F.3d 1235, 1244 (D.C. Cir. 2017)). Defendants previously argued that bond hearings were adequate alternatives, but the Court rejected this contention because bond hearings are too speculative, would not necessarily take place quickly, and would not remedy the injury. See P.I. Op. at 24–25. Since that argument was rejected, Defendants have suggested no other alternatives. See MTD and Class Cert Op. at
39 Defendants appear to dispute this. Defs.’ Resp. ¶¶ 614-15. Their briefing provides no suggestion of what other remedy is available, but instead they assert that “because there is no irreparable injury, it is not possible for Plaintiffs to establish that the remedies at law are lacking.” Defs.’ Resp. ¶ 615. Given that the Court has identified an irreparable injury, it is not clear that Defendants would maintain their dispute on this point.
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54–55; see also Pls.’ Br. (not raising an argument based on 5 U.S.C. § 705). The Court therefore stands by its prior rulings.
B. Class Membership As a final preliminary matter before returning to the substance of Section 1232(c)(2)(B), the Court addresses Defendants’ arguments concerning class membership. Defendants have suggested, but not directly argued, that the class may not contain sufficient members to be maintained. See Defs.’ Br. CL ¶ 23 (arguing that “Plaintiffs have the continuing burden of proof by preponderance of the evidence to show that the class contains sufficient members to remain certified”); Defs.’ Resp. ¶ 45 (arguing that age-outs are not class members if they either were not detained or were detained through a process consistent with Section 1232(c)(2)(B), and also asserting that “[i]t is now incumbent upon the Court to determine which former UACs detained by ICE are class members”). As Plaintiffs observe, Defendants do not have a motion to decertify the class pending, Pls.’ Resp. CL ¶ 23, and in fact withdrew a motion to decertify that they filed last year, Defs.’ Mot to Hold Defs.’ Motion to Decertify the Class in Abeyance, ECF No. 192. As the Court explained when ruling on Defendants’ Motion for Summary Judgment, the size of the class in this case depends on the finding of liability. See MSJ Order at 4. “If ICE Officers in the field are not actually considering the least restrictive setting, then there might well be plenty of discernable age-out class members.” Id. Because the Court finds today that violations of 1232(c)(2)(B) are occurring, there is little difficulty in saying that the class is sufficiently numerous. See Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 196 (D.D.C. 2013) (“In
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this district, courts have found that numerosity is satisfied when a proposed class has at least forty members . . . .”).40
C. Statutory Requirements
Under Section 1232(c)(2)(B), “[i]f a minor described in subparagraph (A)”—that is, “an
unaccompanied alien child in the custody of [HHS],” § 1232(c)(2)(A)— “reaches 18 years of age
and is transferred to the custody of the Secretary of [DHS], the Secretary 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.” 8 U.S.C. § 1232(c)(2)(B) (emphasis added).
This first sentence requires two things of the Secretary. First, the Secretary must take into
account the three statutory factors—dangers to self, danger to the community, and risk of flight.
Second, the Secretary must “consider placement in the least restrictive setting available.” This
“consider[ation]” is due no matter the outcome of the danger and flight evaluation because the
statute does not place any limits or conditions on it other than the sentence’s first clause. From
there, “such aliens”—meaning all age-outs because all age-outs are encompassed by the
preceding sentence—“shall be eligible to participate in alternative to detention programs,
40 Between April 2016 and May 24, 2019, the ICE field office in Houston detained 515 age-outs and the Miami field office detained 181 age-outs. See supra ¶ 176 (citing PX-334 at 43–53 and PX–334A at 147–84 for Houston data); supra ¶ 191 (citing PX-334 at 57–60 and PX– 334A at 218–47 for Miami data). Even if only a small fraction of detained age-outs from just these two offices were processed without section 1232(c)(2)(B) being followed, the number of class members would still be significantly more than forty.
In its most recent filing, the Government has suggested that the Court must scrutinize, one at a time, the AORW created for each age-out. Resp. to Pls.’ Resp. to Defs.’ Notice of Supp. Authority, ECF No. 332. This is too late to raise such an argument. See Brady Ctr. to Prevent Gun Violence v. U.S. Dep’t of Justice, 410 F. Supp. 3d 225, 240 n.3 (D.D.C. 2019) (finding that an argument raised “for the first time in [a] Notice of Supplemental Authority” had been forfeited because it was “only belatedly and cursorily raised”); see also U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871, 878 n.1 (D.C. Cir. 2010) (treating arguments raised in a post-argument letter as forfeited). And regardless, as the Court has explained, the AORWs are not a reliable record of agents’ actual decisionmaking processes. See supra ¶¶ 62–66.
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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.” Id. Thus, per the plain language of the provision, for each and every age-out, DHS must (1) take into account the statutory factors, (2) do so as it considers placing the age-out in the least restrictive setting available, and (3) make the age-out eligible for the identified alternative to detention options. As the Court has already noted, the statute is unambiguous in this regard and must be enforced “according to its terms.” MTD and Class Cert. Op. at 31 (quoting Bd. of Cty. Comm’rs of Kay Cty., Okla. v. Fed. Hous. Fin. Agency, 754 F.3d 1025, 1029 (D.C. Cir. 2014) (quoting Jimenez v. Quarterman, 555 U.S. 113, 118 (2009))).
The Secretary’s obligation to “consider placement [of each age-out] in the least restrictive setting available” and make each age-out “eligible for participation” in certain programs regardless of the age-out’s danger to self, danger to community, or risk of flight warrants further discussion. The Court addressed this in some detail in a prior Opinion, yet it evidently remains a matter of at least some dispute. See Defs.’ Resp. ¶ 621 at pp.451–53 (citing MTD and Class Cert Op. at 40–41). The Court explained that “Section 1232(c)(2)(B) does not limit “consider[ation]” or “eligib[ility] to participate in alternative to detention programs” to those who DHS has determined pose no risk of flight.” MTD and Class Cert. Op. at 40. The assessment of the three statutory factors “is only the beginning of the Secretary’s inquiry.” Id. This is a simple matter of statutory construction because the requirement to “consider” is not limited in any way and because “such aliens” in the second sentence refers back to all the aliens previously specified— all age-outs. See id. at 32. It is therefore contrary to the statute for ICE to engage in what Plaintiffs have called “sequential decisionmaking,” which entails “first determin[ing] whether the Age-Out should be detained, and then consider[ing] alternatives to detention only if the Age-
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Out is released, as a form of release, instead of as an alternative to detention.” Pls.’ Br ¶ 621 at p.240. When the Court observed that the statute requires an “individualized assessment of the proper placement” for each age-out that does not “short-circuit th[e] inquiry,” this is what it meant. MTD and Class Cert. Op. at 40. The “consider[ation]” must be given “after taking into account” the factors—ICE cannot take the factors into account and decide directly from that step that no consideration of alternatives to detention is necessary.
Defendants argue that “[p]rovided that officers are considering the relevant statutory factors, this Court lacks the authority to require the agency to follow a specific sequence or structure when making decisions under Section 1232(c)(2)(B).” Defs.’ Resp. ¶ 629. They cite Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir. 1978), for the proposition that if “Congress did not mandate any particular structure or weight” for an agency’s consideration of a variety of factors, then the agency is left with “discretion to decide how to account for the consideration factors, and how much weight to give each factor.” Id. at 1045. This is precisely correct, but here it is Congress that has mandated a particular structure. The structure being required is derived from the text of the statute, it is not an invention of the Court. Weyerhaeuser concerned a statute requiring the Environmental Protection Agency to “take into account” certain factors, “without prescribing any structure for EPA’s deliberations.” Id. at 1045–46 (quoting 33 U.S.C. § 1314(b)(2)(B) (1972)). Here, the statute does prescribe a structure—taking the statutory factors into account and then considering the least restrictive setting available. It implicitly proscribes another—taking the statutory factors into account and detaining automatically based on that accounting. JFRMU’s training materials, therefore, instruct FOJCs to follow decisionmaking procedures that are inconsistent with the statute insofar as they suggest
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sequential decisionmaking in which not every age-out is at least considered and eligible for detention alternatives. See supra ¶¶ 131–33.
The first thing the statute requires of the Secretary is that he or she “take into account” the statutory factors. See 8 U.S.C. § 1232(c)(2)(B) (“[T]he Secretary shall consider placement . . . after taking into account . . . .” (emphasis added)). This “account[ing]” is the type of factor-weighing exercise that the D.C. Circuit described in Weyerhaeuser. See Weyerhaeuser, 590 F.2d at 1046 (“So long as [the agency] pays some attention to the congressionally specified factors, the section on its face lets [the agency] relate the various factors as it deems necessary.”). Congress identified three factors—danger to self, danger to community, and risk of flight—that are relevant to the decision, but did not dictate how they ought to be weighed in relation to one another or how each should be factored into the final decision. This is a relatively common framework for Congress to use in giving instruction to an administrative agency, and courts are familiar with it. See, e.g., New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992) (“Because Congress did not assign the specific weight the [EPA] Administrator should accord each of these factors, the Administrator is free to exercise his discretion in this area.”); Cent. Vermont Ry., Inc. v. I.C.C., 711 F.2d 331, 336 (D.C. Cir. 1983) (“when a statute requires an agency to ‘consider’ a factor, the agency must reach an express and considered conclusion about the bearing of the factor, but need not give any specific weight to the factor.” (alterations and quotations omitted)); Accrediting Council for Indep. Colleges & Sch. v. DeVos, 303 F. Supp. 3d 77, 112 (D.D.C. 2018) (“the Court finds no reason to question the reasonableness of the weight that the Secretary assigned to the evidence”); see also Am. Corn Growers Ass’n v. EPA, 291 F.3d 1, 6 (D.C. Cir. 2002) (“Although no weights were assigned, the factors were meant to be considered together by the states.”).
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The Secretary’s second obligation—to “consider placement in the least restrictive setting available”—adds a separate step to the decisional structure. Defendants suggest that “consider” means “take into account,” Defs.’ Br. CL ¶ 31, and they are correct to note that courts— including this one—have treated the two terms as essentially synonymous. N.M. Navajo Ranchers Ass’n v. I.C.C., 850 F.2d 729, 735 (D.C. Cir. 1988) (noting that a prior ruling “held only that the [agency]’s mandate to consider the public interest required it to take into account their underlying policies”); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 516 n.17 (D.C. Cir. 1983) (interpreting Weyerhaeuser and observing that “[the Clean Water Act] directs EPA to ‘consider’ certain factors; this requires the agency only to ‘take into account’ those factors”); Delta Air Lines, Inc. v. Export-Import Bank of United States, 85 F. Supp. 3d 387, 407 (D.D.C. 2015) (Contreras, J.) (noting that certain statutes “require [an agency] to consider (or, more accurately, ‘take into account’) the potential adverse effects . . . .”). Nonetheless, it is clear from the language of the statute that the obligations are separate.
Plaintiffs argue that “consider” means something more than “take into account,” Pls.’ Resp. CL ¶ 31, and appeal to “the usual rule [of statutory construction] ‘when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.’” Sosa v. Alvaraez-Machain, 542 U.S. 692, 711 n.9 (2004). While the Court agrees that the “consider” requirement and the “take into account” requirement in Section 1232(c)(2)(B) are distinct, the Court does not reach this conclusion based on the definitions of the terms. Instead, the Court relies on the structure of the decisional process described (“consider placement in the least restrictive setting available after taking into account . . .”). Additionally, there is a meaningful difference in kind between the three risk factors and the setting or settings, all of which the Secretary is obligated to think about in some
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way. The Secretary cannot “consider placement in the least restrictive setting available” in the same way as he “tak[es] into account” the three risk factors, because the age-out’s placement is a potential output of this decisionmaking process, while the factors are characteristics of the input (the age-out).
It is equally clear to the Court that the “consider[ation of] placement in the least restrictive setting available” must bear some relation to the risk factors that have been “take[n] into account.”41 Rather, the sentence outlines the structure of a single agency decision, with two components to it. As the Court put it previously, “the statute calls for an individualized assessment of the proper placement for each former unaccompanied minor in light of DHS’s assessment of his or her danger to self, danger to the community, and risk of flight.” MTD and Class Cert Op. at 40. The Secretary must treat the risk factors as relevant variables, like the “consideration factors” in Weyerhaeuser, and then must determine a placement, the outcome of the decisionmaking process for each age-out. See Weyerhaeuser, 590 F.2d at 1045. In reaching that outcome, the Secretary must “consider”—must think about as a possibility—the least restrictive setting available when processing an age-out. The use of “consider” at this point in the statute is best understood in contrast with Section 1232(c)(2)(A), which requires that UACs in the custody of the Secretary of HHS “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A). When processing age-outs, the secretary of DHS is left greater discretion with regard to what setting is deemed appropriate,
41 Although Congress’s decisionmaking structure places one step “after” the other, Defendants have never suggested that taking the risk factors into account is a freestanding exercise that simply must be completed before the Secretary proceeds to the unrelated process of considering where to place the age-out.
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but the least restrictive setting must be considered, and the specified risk factors must be “tak[en] into account.”
To consider the least restrictive setting available, the Secretary—or the ICE officers actually making the decisions—are obligated to determine what settings are “available.” This, too, is a matter of statutory construction. Defendants renew their argument that courts cannot dictate procedures where the agency was left with discretion to structure its own decisionmaking, Defs.’ Resp. ¶ 624, and also suggest that because “[t]he word ‘identify’ appears nowhere in the statute” their officers cannot be under any obligation to identify placements, Defs.’ Resp. ¶ 621 at p.445. These arguments fail because it is Congress, not this Court, that implied some degree of awareness of alternatives. The “least restrictive setting” is defined in relation to other, more restrictive settings, and the Secretary cannot know which setting is least restrictive without knowing the range of alternatives that are available. Congress singled out a particular alternative for consideration but only described it based on its relation to other alternatives. This makes it the Secretary’s obligation to determine the full range of alternatives and work out which one Congress singled out for consideration. The instructions are similar to those given by a diner asking a waiter for a bottle of the restaurant’s least expensive wine. The diner does not have to be familiar with the full list of wines and their prices in order to give this instruction, but the waiter must be, or must review the list and identify the cheapest bottle in order to carry out the instruction. Congress similarly did not need to use the word “identify” in order to impose an obligation that a range of possible settings and the least of these be identified. The Secretary could not consider placing the age-out in the least restrictive setting available without
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determining what available setting is least restrictive. And the Secretary cannot determine that without evaluating the range of available settings.42
Even without the kind of specific statutory directive to consider certain alternatives that Section 1232(c)(2)(B) presents, agencies are often obligated to do so. Courts have held agency actions to be arbitrary and capricious for failure to consider “significant and viable” alternatives. Farmers Union Cent. Exchange, Inc. v. FERC, 734 F.2d 1486, 1511 n.54 (D.C. Cir. 1984). Agencies are not obligated to consider “every alternative . . . conceivable . . . regardless of how uncommon or unknown,” but “[t]he failure of an agency to consider obvious alternatives” often leads to reversal. City of Brookings Mun. Tele. Co. v. F.C.C., 822 F.2d 1153, 1169 (D.C. Cir. 1987) (first quoting Farmers Union, 734 F.2d at 1151 n.54; and then quoting Yakima Valley Cablevision, Inc. v. F.C.C., 794 F.2d 737, 746 n.36 (D.C. Cir. 1986)); see also Nat’l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013). Failure to consider alternatives is an issue more frequently addressed when courts review agency rulemakings as opposed to adjudications, but there is precedent for applying the same obligation in review of adjudications as well. See Laclede Gas Co. v. FERC, 873 F.2d 1494, 1498 (D.C. Cir. 1989). The D.C. Circuit has also applied some obligation on agencies to consider “facially reasonable alternatives” presented by a party to an adjudication. Id. (“[T]he agency must either consider those alternatives or give some reason . . . for declining to do so.”). With this statute, which specifically mandates consideration of one particular alternative, and where identifying that
42 Defendants argue the opposite, claiming that “the word ‘available’ modifies and limits the requirement to ‘consider.’” Defs.’ Resp. ¶ 632. Grammatically, this is incorrect, as the adjective “available” modifies the noun “setting.” The descriptor “available” limits which settings must be considered. Compared to some potential alternatives, the use of the word “available” might be said to expand the Secretary’s inquiry obligation. For instance, the statute might have required that the Secretary “consider placement in the least restrictive setting known to the Secretary,” in which case no inquiry would have been required.
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alternative requires awareness of others, the agency’s obligation to know what alternatives are on
the table is even clearer.
The Secretary’s third obligation under the statute provides some guidance as to what
kinds of settings must be considered. All age-outs “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.” § 1232(c)(2)(B).43 Any officer tasked with making a
custody determination should know to evaluate these programs as possible least restrictive
settings. Here, “alternative to detention programs,” in lowercase, does not refer only to the
monitoring programs administered by ICE’s ATD unit, but refers instead to anything ICE might
do with an age-out other than place them in adult detention. ICE bonds also fit this description,
though they are not necessarily a “program.” Defendants argue that because ATD monitoring
programs are more restrictive than release of an age-out on his or her own recognizance to a
43 Plaintiffs have suggested that ICE must “make available to each 18 year old ‘alternative to detention programs, utilizing a continuum of alternatives . . . which may include placement … with an individual or an organizational sponsor, or in a supervised group home.’” Pls.’ Br. ¶ 620. Defendants dispute whether ICE is obligated to “make available” the “alternative to detention programs” described in the second sentence of Section 1232(c)(2)(B). Defs.’ Resp. ¶ 620. While this language is referenced in both Counts of the Amended Complaint, Am. Compl. ¶¶ 105, 109, the Court does not find it material to their resolution as they have been argued in this case, and thinks the parties may be talking past one another. The statute explicitly states that age-outs “shall be eligible to participate in alternative to detention programs” that “utilize[e] a continuum of alternatives.” § 1232(c)(2)(B). And ICE has done just that—many age-outs have been released to sponsors, and at least some have been placed in the ATD program or released on ICE bonds. The Plaintiffs may simply be rephrasing ICE’s obligation to make age-outs eligible for placement as an obligation to make placements available to age-outs. To the extent that there is a genuine dispute over what ICE is obligated to offer, it is outside the scope of this litigation. This case has not been focused on whether ICE is obligated to maintain the ATD program or to offer bonds, but only over whether it must consider using these with ageouts. Nor has there been any suggestion that ICE itself must somehow make sponsors available, as opposed to identifying sponsors who are already available.
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sponsor, ICE officers are not obligated to consider these more restrictive alternatives for age-outs they release on OREC. See Defs.’ Resp. ¶ 632. In one sense this is correct—ATD need not be considered as “the least restrictive setting available” if OREC is available, but it must always be evaluated in order to determine what available setting will be least restrictive for a given age-out. ATD (and ICE bonds) are always on the table and always less restrictive than adult detention. They are not to be considered as an alternative to OSUP or OREC, as many FOJCs seem to think, but as an alternative to detention.
Placement with individual or organizational sponsors or in group homes are also expressly contemplated by Section 1232(c)(2)(B). An officer making a custody determination who does not evaluate these alternatives and does not inquire about them is unlikely to be able to identify the least restrictive setting available and to consider placing the age-out there. Again, this is going to require some inquiry or research, even if neither word is used in the statute. If ORR, an age-out’s attorney, or a third party comes forward with a potential sponsor, the inquiry or research obligation may be minimal and may simply entail confirming that there is nothing wrong with the proposed placement. The statute cannot reasonably be interpreted to require any officer to make an indefinite search that goes beyond the requirements of reasonable diligence. See Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972) (observing, when discussing an agency’s obligation to “study, develop, and describe appropriate alternatives” under the National Environmental Protection Act, 42 U.S.C. § 4332(E), that “[t]he statute must be construed in the light of reason” and “not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research—and time— available . . . are not infinite.”). In many cases, once the officer identifies a sponsor to whom an age-out can be released on OSUP or OREC, there will be no need to continue searching, as no
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other form of release will be less restrictive. If, after a reasonable search involving review of—at the very least—proposed sponsors, material in the age-out’s file and on the Form I-213, and known shelters, no placement is “available” for a particular age-out, then sponsorship may not be an option and the officer may be left to evaluate only whatever available placements do not require a sponsor.
The obligation to consider alternatives is placed on the Secretary. The Secretary, through the Department’s many field offices, is already aware of a multitude of available placement options that officers have used in the past and that advocacy groups have encouraged the agency to use. Focusing on whether a particular FOJC received materials from ORR or had time to research available placement options distracts from the fact that the obligation is agency-wide. The Secretary, acting through his or her subordinates, knows what options are available and fails to fulfill his or her statutory obligations when there is a failure to make sure those subordinates consider those known alternatives. This means that organizational sponsors outside a field office’s AOR should, in many cases, be treated as available. The Secretary already knows that La Posada and Casa Marinella in Texas and Viator House in Chicago, among others, accept age-outs from around the country, because the Secretary—acting through ICE—has released Miami age-outs to those shelters. See Trial Tr. at 1317:14–25 (Lehner); see also id. at 845:20–847:14 (Enriquez) (identifying organizational sponsors around the country that Catholic Charities has suggested to ORR); id.. Nothing in the text of the statute puts any geographic limit on what counts as “available.” Geography does not appear to be a relevant consideration at any other stage of the process, as there appears to be no rationale (other than space) for why age-outs are placed in any particular ORR shelter (and thus processed by the closest ICE field office). And even if geographic limits were reasonable, there
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is little reason behind any AOR-based rule, as opposed to a rule based on distance, or even on state lines.44
The statute does not place any time limits on ICE’s duties under the statute, either on the front end or the back end. Section 1232(c)(2)(B) provides that “[i]f a [UAC] reaches 18 years of age,” the Secretary’s obligations are triggered. It does not say that the Secretary—through ICE—cannot prepare to carry out those obligations until the UAC turns eighteen. A number of ICE field offices view their obligations with regard to age-outs as limited to only the day the ageout turns eighteen. See supra ¶¶ 185 (Houston), 198 (Miami), 213 (New York). The statute does not require this. This is not to say that FOJCs are necessarily obligated to begin working on ageouts’ cases earlier than they do. There may be sound reasons, based in other statutes, regulations, or policies, that require FOJCs to structure their time in certain ways. On the back end, ICE is correct that the statute does not require “periodic re-assessment” of a decision once it has been made. E.g., Defs.’ Resp. ¶ 119. But ICE is not relieved of its obligation to follow VAWA at the end of the day on the age-out’s eighteenth birthday. If an age-out is detained without proper consideration of alternatives, that age-out is owed a compliant decision. This is not re-assessment, but simply the proper assessment that was required in the first place. Officer Zanello’s testimony describing how the Phoenix office would bring age-outs back from detention the day after their birthday shows that there are no legal or practical barriers to an FOJC doing
44 For instance, the Los Angeles-based Southern California AOR lacked identified organizational sponsors. (The Court suspects one or more could probably be located somewhere in that highly populated area of the country.) But organizational sponsors did exist in San Francisco. See PX-463 (list of identified organizational sponsors). The San Francisco office’s AOR included Hawaii and Guam. Trial Tr. at 2673:8–15. If the statute only allowed placement of an age-out with an organizational sponsor in the same AOR this would mean that an age-out in Guam could be placed with an organization in San Francisco, but that an age-out in Los Angeles could not be.
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what is necessary to make a decision that complies with the statute.45 Trial Tr: at 3834:15– 3835:5 (Zanello). In short, Section 1232(c)(2)(B) has nothing to say on when exactly FOJCs must start or stop working. Section 1232(c)(2)(B) only requires that ICE begin early enough to fulfill its obligations under the statute, and that it continue working it fulfills those obligations. Testimony from the San Antonio office suggests that the time period required to place an age-out with a sponsor is not too great. Id. at 2764:21–25 (Munguia) (testifying that three days to a week is sufficient time to research sponsors and make placements). So, a wise allocation of resources may not require starting the process too far in advance. But the self-imposed 24-hour limit on the process followed by some offices has no basis in the statute and is unreasonable if the decisionmaking process required has not been completed in that artificial time frame.
In short, the statute explicitly requires three things and implicitly requires a fourth from the Secretary and thus from the ICE officers executing his instructions. First, they must take into account the age-out’s statutory risk factors—danger to self, danger to community, and risk of flight. With these in mind, they must second consider placing each and every age-out in the least restrictive setting available for that individual. This implicitly requires that officers be aware of what settings are available, and that they take affirmative steps to identify available settings when they are not self-evident, in order to determine which will be the least restrictive for that age-out. Third, and more broadly, DHS and ICE must make a variety of detention alternatives available for age-outs. The Court now turns to evaluate whether Defendants have fulfilled these obligations.
45 The Phoenix process described by Officer Zanello is far from perfect, of course, because it entails overnight placement of the age-out in adult detention while the process of attempting to comply with the statute is ongoing. That overnight detention could violate the statute. Nonetheless, Phoenix’s continued efforts are preferable to simply giving up at the end of the day as many other field offices do.
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D. Merits The Court now turns to the merits. Plaintiffs’ two claims challenge the same conduct under two distinct provisions of the APA. Count I alleges that ICE is violating 5 U.S.C. § 706(2) by acting 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 after taking into account [their] danger to self, danger to community, and risk of flight” and by failing to make available to Plaintiffs any alternatives to detention. Am. Compl. ¶¶ 98–106. Count II alleges that ICE has ‘‘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 Court finds that ICE has violated both provisions of the APA. An agency acts arbitrarily and capriciously in violation of the APA when it makes a decision that is not “based on a consideration of the relevant factors” or fails to “follow[] the necessary procedural requirements.” Overton Park, 401 U.S. at 416–17; see Judulang v. Holder, 565 U.S. 42, 55 (2011) (“[A]gency action must be based on non-arbitrary, ‘relevant factors.’”) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see id. at 53 (“When reviewing an agency action, [courts] must assess, among other matters, ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” (quoting State Farm, 463 U.S. at 43)). Courts “do not defer to [an] agency’s conclusory or unsupported suppositions.” McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (citing State Farm, 463 U.S. at 43). In an adjudication like the decisions at issue here, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” NetCoalition v. SEC, 615 F.3d 525, 532 (D.C. Cir. 2010)
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(quoting State Farm, 463 U.S. at 43). “[A]n agency’s refusal to consider evidence bearing on the
issue before it constitutes arbitrary agency action within the meaning of § 706.” Butte Cnty. v.
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) (citing State Farm, 463 U.S. at 43; Comcast Corp. v.
FCC, 579 F.3d 1, 8 (D.C. Cir. 2009)).46
As the Court has already held, there is sufficient “law to apply” here for the Court to
review the agency’s decisions. See MTD and Class Cert. Op. at 48–49. While the statute is
permissive in that it does not require any particular placement for any particular age-out or group
of age-outs, a permissive statute is not a blank check for an agency. On the question of whether
46 Defendants misunderstand the proper standard for review of an agency action. Ostensibly quoting Department of Commerce v. New York, 139 S. Ct. 2551, 2579 (2019), they argue that “Plaintiffs must show that the agency ‘entirely failed to consider an important aspect of the problem.’” Defs.’ Br. CL ¶ 22 (emphasis removed). But this quotation does not appear in Department of Commerce. Justice Breyer’s concurrence in that case comes closest, observing that an agency “ordinarily fails to meet [the arbitrary and capricious] standard if it has ‘failed to consider an important aspect of the problem.’” Dep’t of Comm., 139 S. Ct. at 2585 (quoting State Farm, 463 U.S. at 43) (Breyer, J., concurring in part and dissenting in part). The full phrase as Defendants quote it appears in State Farm, but there “entirely fail[ing] to consider an important aspect of the problem” is only one of several ways in which an agency might fail arbitrary and capricious review. State Farm, 463 U.S. at 43. Public Citizen v. Fed. Motor Carrier Safety ,Admin., 374 F.3d 1209 (D.C. Cir. 2004), which Defendants also cite, Defs.’ Br. CL ¶ 22, makes the same point. See Public Citizen, 374 F.3d at 1216. The agency in that case failed arbitrary and capricious review because it had “wholly failed to comply with [a] specific statutory requirement””,”” but the D.C. Circuit never suggested that this was the only way an agency could fall short of that standard. Defendants incorrectly suggest that a sufficient condition is a necessary one.
Elsewhere in their briefing, Defendants invoke the correct but irrelevant rule that “[t]he ‘arbitrary and capricious’ standard is particularly deferential in matters implicating predictive judgments” concerning the future. Defs.’ Br. CL ¶ 53 (quoting Rural Cellular Ass’n v. F.C.C., 588 F.3d 1095, 1105 (D.C. Cir. 2009)). In the case Defendants cite, “the FCC [was required to] make predictive judgments about the effects of increasing subsidies,” leading the Circuit to note that “certainty is impossible.” Rural Cellular Ass’n, 588 F.3d at 1105. None of the relevant factors here are forward-looking or predictive in the same way. The Secretary is instructed to evaluate risk factors in the moment, arguably with an eye toward future risk, but not in any sense beyond the everyday sense that any agency decision will have effects in the future. The normal—still reasonably high—level of deference afforded to an agency under the arbitrary and capricious standard is thus sufficient and appropriate here.
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a statute allows for judicial review, Courts have said that “[l]anguage allowing for discretion does not create unlimited discretion.” Am. Petroleum Tankers Parent, LLC v. United States, 943 F. Supp. 2d 59, 67 (D.D.C. 2013) (quoting Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 348 (4th Cir. 2001)). A similar principle is at play when, as here, a permissive statute does not dictate much by way of outcomes but only requires consideration of certain factors. Judicial review is, if anything, even more important in situations like these if the agency has declined to issue regulations or even provide guidance to its personnel that might cabin the exercise of their considerable discretion. See Heckler v. Chaney, 470 U.S. 821, 853 (1985) (Marshall, J., concurring) (“[An] agency may well narrow its own enforcement discretion through historical practice, from which it should arguably not depart in the absence of explanation, or through regulations and informal action.”).47 If agency leadership takes no steps to ensure that discretion is exercised with the thoughtfulness the statute requires, then it falls to courts to scrutinize more closely the decisions being made further down the agency chain-of-command.
Defendants argue that an agency’s “obligation to ‘consider’ is a minimal one.” Defs.’ Br. CL ¶ 25; see id. at 26. They do not explain what exactly they mean by minimal, but the cases they cite do not establish that it is necessarily easy for an agency to show it considered something. Defendants argue, for instance, that “[w]hen Congress has in fact intended to affirmatively constrain [an] agency . . . it has done so in no uncertain terms,” by requiring more than simply consideration. Id. (quoting Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,
47 “[A] large number of agency oversight and review structures are agency created, ranging from informal rules governing what decisions an employee must run past her manager to formal complaint mechanisms to express requirements of sign-off by different subunits or highlevel approval for certain decisions. These internal administrative structures . . . are central to controlling the actions of agency personnel and determining how the agency operates.” Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239, 1253 (2017).
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581 (1998); see also id. (citing United States v. Bruce, 285 F.3d 69, 74 (D.C. Cir. 2002) (“To ‘consider’ means to ‘reflect on,’ ‘think about,’ ‘deliberate,’ ‘ponder’ or ‘study’ . . . . It does not mean to ‘adhere to,’ ‘be bound by’ or ‘follow.’” (quoting Webster’s Third New International Dictionary, Unabridged 483 (1993))). These and other cases contrast consideration with other requirements Congress could have imposed. The fact that different or more restrictive instructions might have been given does not suggest that the obligation to “consider” or “take into account” factors is, on its own terms minimal or unimportant. Under arbitrary and capricious review the agency is “required to identify the standard and explain its relationship to the underlying regulatory concerns.” WorldCom, Inc. v. FCC, 238 F.3d 449, 462 (D.C. Cir. 2001). Whether this obligation is “minimal” depends on the agency and the decision at issue.48
For an age-out custody determination, the relevant factors are the age-out’s danger to self, danger to community, and risk of flight, along with availability of certain settings for a particular age-out’s placement. Each of these is identified in and the Secretary is instructed by Congress to “tak[e] into account” the three risk factors. The Court cannot “substitute its judgment for that of the agency,” when evaluating how these factors were weighed in the final custody determination. State Farm, 463 U.S. at 43. “Agencies . . . have expertise and experience in administering their statutes that no court can properly ignore.” Judulang, 565 U.S. at 53. Nonetheless, “courts retain a role, an important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Id. The Court therefore “must assess, among other
48 In addition, other definitions could be identified that suggest more of an obligation. Defendants themselves, for example, cite a 1990 edition of Black’s Law Dictionary that defines “consider” as “careful examination” and “[t]o deliberate and ponder over.” Defs.’ Br. CL ¶ 30 (citing Consider, Black’s Law Dictionary 306 (6th ed. 1990)). That definition suggests a higher burden, and one that would not have been carried by the minimal work ICE suggests it needs to do.
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matters, ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Id. (quoting State Farm, 463 U.S. at 43).
To evaluate whether Defendants comply with the statute, the Court must evaluate not only the results of the decisionmaking processes, but the process itself. Defendants take issue with this sort of analysis. At many points in Defendants’ briefing, they respond to Plaintiffs’ observation that ICE does not take some particular action by noting that the statute does not require it or that the terms used do not appear in the statute. See, e.g. Defs.’ Resp. at ¶ 621 (arguing, among other things, that the statute “contains no requirement to ‘identify’ the least restrictive setting,” id. at p.445, “does not require Defendants to take any specific actions with regard to sponsors,” id. at p.446, and does not require Defendants “‘to do ‘diligence,’ to ‘vet,’ or to ‘identify’ sponsors,” id. at p.448). In many instances, Defendants are correct that the statute does not require the agency to take the particular steps described. The statute does require something of the agency, though, and what it requires—considering certain alternatives and taking certain factors into account—is not directly observable. Observing what steps officers do or do not take is highly probative when it comes to determining whether the largely mental decisional processes the statute dictates are being followed. For example, while the statute does not require that ICE accept proposed sponsors suggested by third parties, a policy stating that such suggested sponsors will be evaluated would be evidence that ICE is making an effort to identify the least restrictive alternative in every case. Defendants’ own arguments reveal that they understand the concept that procedures can reveal compliance, as they argue that the filling out of an AORW demonstrates compliance with the statute, see Defs.’ Br. CL ¶ 62, even though the statute does not mention AORWs or require that they be filled out, see Defs.’ Resp. ¶ 621 at p.456 (“The statute does not require any of the specific documentation aids that DHS has chosen
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to use to help confirm that its officers comply with Section 1232(c)(2)(B).”). It is with this in mind that the Court has reviewed, in such detail, the instructions ICE gives its officers and the processes they follow.
Defendants argue that their documentation of age-out custody determinations shows they complied with the statute, see Defs.’ Br. CL ¶ 62, but the AORWs do not prove ICE’s compliance with the statute. Both versions of the AORW ask the FOJC to make a custody recommendation while “Considering [the] Least Restrictive Setting Available.” Supra ¶¶ 56, 60. Each also asked whether certain detention alternatives either were or were not considered. Id. The AORWs fail to establish that proper consideration was given for a number of reasons. As the Court has observed, the AORWs are not a reliable record of ICE’s decisionmaking process because so many were produced and edited after the fact by officers other than the ones who actually made the decisions. Supra ¶¶ 62–66.49 This is to say nothing of the over three hundred age-outs who were processed without having AORWs filled out at all during the time period when ICE was attempting to document its decisions. See supra ¶¶ 67–69.
Even an AORW filled out in a timely manner by the correct FOJC would not show that the officer had actually considered the least restrictive setting available rather than simply
49 Defendants argue, in a Notice of Supplemental Authority, ECF No. 330, that a recent case from the District of New Mexico supports their contention that a “properly completed [AORW] satisfies the requirement in section 1232(c)(2)(B) to consider the least restrictive setting available.” Id. at 2 (citing Rodas Godinez v. ICE, No. 2:20-cv-446 KWR/SMV, 2020 WL 3402059 (D.N.M. June 19, 2020)). The Court that decided that case was looking at only one AORW, reflecting the petitioner’s custody determination, and only held that this one particular AORW satisfied section 1232(c)(2)(B)—not that AORWs do so as a general matter. See Rodas Godinez, 2020 WL 3402059, at *7 (“[T]he worksheet shows that [ICE] considered placing Petitioner in the least restrictive setting . . . .” (emphasis added)). Further, that court was ruling on a Motion for a Temporary Restraining Order, while this Court has heard weeks of testimony and developed a broader sense of the processes by which ICE officers fill out AORWs.
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engaged in a superficial box-checking exercise. The form does not ask the officer to identify what the least restrictive setting available is, but only to make a recommendation while “[c]onsidering” it.50 Nor does it ask the officer to take the statutory risk factors into account while considering placements—the form does not connect the detention recommendation with the yes-or-no boxes addressing the elements Congress required the Secretary. Checked boxes indicating that these factors were taken into account do not demonstrate that they were substantively evaluated or thought about in any meaningful way. Checked boxes are, at best, the kinds of “conclusory or unsupported” statements that do not fulfill an agency’s obligation to provide the reasons for its decisions. McDonnel Douglas Corp., 375 F.3d at 1187; cf. Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2018) (“[S]imple, conclusory statements of ‘no impact’ are not enough to fulfill an agency's duty under NEPA.” (quoting Found. on Econ. Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir. 1985))). The AORW does not require, for instance, elaboration on what level of danger or flight risk an age-out posed or why. And even if merely checked boxes somehow could indicate sufficient consideration of alternatives, more than half of the AORWs reviewed indicated that alternatives to detention were not considered. Supra ¶ 169.51 Although “[courts] will . . . uphold a decision of less than ideal
50 The FOJC’s ultimate recommendation regarding where the age-out should be placed is not an identification of the least restrictive setting available because, as this Court has held and as Defendants have repeatedly noted, age-outs are not guaranteed placement in the least restrictive setting available, but only consideration of that setting. This is in contrast to 8 U.SC. § 1232(c)(2)(A) which dictates that a UAC “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” Id. If there were a form documenting UAC placement decisions, it would make sense to assume that the recommended setting was the least restrictive. The Court cannot make the same assumption here because the FOJC’s recommended setting need not be the least restrictive that was considered.
51 Defendants argue not only that completed AORWs are sufficient evidence that ICE followed the statute, but that even partially completed ones demonstrate compliance. Defs.’ Br. CL ¶ 62 (citing State Farm, 463 U.S. at 43). Because the Court does not think a completed
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clarity if the agency’s path may reasonably be discerned,” the Court is unable to find that the proper procedures were followed in making these custody determinations based on the AORWs because they do not show that “the decision was based on a consideration of the relevant factors.” State Farm, 463 U.S. at 43 (quotations omitted).
The testimony of ICE officials bolsters the Court’s view of the AORWs and also stands on its own as further evidence that the least restrictive setting available was regularly not considered, that risk factors were not taken into account, and that inquiries were often not made to identify available settings that would have been less restrictive than the default of adult detention. To begin at the top, JFRMU and ICE headquarters make no efforts to monitor whether field officers are complying with the statute. As Defendants acknowledge, no review of the substance of age-out custody determinations is ever conducted. Supra ¶ 145. While officers properly have discretion in how they weigh the statutory factors and in whether they ultimately place an age-out in the least restrictive setting available, they do not have discretion to decline to take those factors into account, or to decline to consider the least restrictive setting available. See P.I. Op. at 32 (“[C]ompliance with 8 U.S.C. § 1232(c)(2)(B) is mandated by statute and therefore not discretionary.”). JFRMU could review the substance of age-out custody determinations for compliance with the statute even while affording officers a reasonable degree of discretion, but instead ICE headquarters allows field officers to decide whether or not they will follow the statute.
One reason that many field officers may choose not to follow the statute’s directives is that JFRMU training materials do not emphasize compliance with the statute, and in fact
AORW can demonstrate compliance, it should come as no surprise that an incomplete one also falls short for the same reasons.
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encourage procedures that are contrary to it. Training materials emphasize that officers should consider the “totality of the circumstances”—a term JFRMU does not define—much more than they emphasize the three statutory risk factors Congress has directed the Secretary to take into account. Supra ¶¶ 109–12. Despite emphasizing this standard, which Chief Harper professed means that ICE “contemplate[s] every possible factor that we’re aware of at the time,” Trial Tr. at 62:4–6, ICE allows its FOJCs to ignore certain obvious facts, for instance, FOJCs tend to overlook the fact that nearly all age-outs lack community ties in the United States, supra ¶ 113; or that a long period of time in ORR may mean an age-out is unlikely to flee, supra ¶ 114; the fact that ATD and ICE bonds are available options for age-outs, supra ¶¶ 139–41; or even the simple fact that officers in certain offices like San Antonio manage to place almost all age-outs with sponsors without incident. ICE also permits FOJCs to disregard potential sponsors recommended by advocates, potential sponsors identifiable in an age-out’s form I-213, and organizational sponsors used in prior instances by their colleagues. Supra ¶ 147, 149, 183, 211, 249.
Officers are also instructed to follow the kind of sequential decisionmaking process that the Court has concluded violates the statute by denying age-outs consideration of the least restrictive setting available. Supra ¶¶ 131–33. This is compounded by training that comes close to treating detention as a default. Officers are instructed to run a Risk Classification Assessment tool that, unbeknownst to many officers, never recommends release. Supra ¶¶ 125–30. They are instructed to view age-outs as flight risks based on characteristics that are present for nearly all age-outs. Supra ¶ 113–14. Although the statute does not entitle any particular age-out to any particular placement, giving these sorts of detention-favoring instructions alongside an emphasis
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on sequential decisionmaking that would skip over the required consideration serves to increase the likelihood that officers will not fulfill their statutory obligations.
JFRMU’s training concerning sponsors—or rather its lack thereof—increases the importance of sponsors to age-out custody determinations while simultaneously failing to encourage FOJCs to arrange for sponsors or even to accept proposed ones. JFRMU training suggests that nearly all age-outs are flight risks but also states that this risk can be mitigated by placement with a sponsor. Supra ¶¶ 113–15. FOJCs are unlikely to recommend release if they cannot identify a way of mitigating the flight risk they are trained to see in nearly every case. This means that the availability of sponsors is often critical to an age-out’s receiving consideration of the least restrictive setting available for their placement. Nonetheless, JFRMU does not give field officers any instruction on how to investigate what sponsors are available. Nor does it encourage them to do so. Although JFRMU training materials indicate that sponsors must be “viable,” and although the lack of a viable sponsor is often cited by FOJCs as a reason for detention, JFRMU has never developed any standards for what makes a sponsor viable. Supra ¶¶ 150–51. JFRMU does not require, encourage, or take a position on any number of steps an FOJC might take in order to identify the least restrictive setting available including reaching out to ORR, speaking with an age-out, contacting proposed sponsors, or responding to communications from third parties that have suggested possible sponsors. Supra ¶¶ 146–49. JFRMU also does not instruct ICE field officers on how to place or consider placing age-outs in the ATD program or on ICE bonds. Supra ¶¶ 139–41.
The result of JFRMU’s lack of instruction concerning sponsor viability or investigation is that, in many cases, ICE essentially leaves it to ORR—a subcomponent of a different agency serving a different population—to fulfill the statutory obligation to consider placement in the
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least restrictive setting available. JFRMU officials and many field officers view identifying sponsors as ORR’s job, not ICE’s. Supra ¶¶ 153, 157–58, 160–63, ; see also supra ¶¶ 183–84, 197, 210. As the Court has explained, the statute requires the Secretary to identify potential placements for age-outs. When ICE officers decline to identify sponsors, Defendants thus fail to fulfill these statutory obligations.
Even if DHS could somehow delegate to ORR its investigative obligations under Section 1232(c)(2)(B), the kind of vetting and investigation that ORR performs, because it deals with children, is materially different than the investigation DHS needs to do with the now-adult ageout. The effect of pushing the duty to investigate onto ORR is that sponsorship standards designed with a different population in mind are applied to age-outs. The unaccompanied alien children in ORR’s custody are just that—children. Age-outs are eighteen years old—legal adults. It is not at all clear that placement with a sponsor should not be treated as “available” to an eighteen-year-old simply because ORR would not or could not place the same individual with that sponsor when they were a child.
As the Court has said before, it stands to reason that ORR should and does have more onerous sponsorship requirements than ICE. P.I. Op. at 31 (citing 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)). The Court appreciates that ORR may have considered and rejected the sponsor only a few days before a UAC became an age-out, and that little may have changed in the intervening time, but Congress has drawn a bright line at eighteen years of age, and
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identified in Section 1232(c)(2)(B) what protections are provided for age-outs who cross this line and transfer to ICE’s custody. Sponsorship standards designed for children in ORR care are not among the protections afforded to eighteen-year-olds, and applying these higher standards takes away from the protections Congress did give to age-outs by limiting available placements. Because children need more care and supervision than adults, ORR’s standards are different and higher than what is necessary for adult age-outs. Allowing these heightened standards to dictate which placements are considered for age-outs denies those age-outs of consideration of the least restrictive settings that might be available to them.
Regarding the FOJC’s training, Defendants argue that “[t]he FOJCs uniformly testified that they understood that they were to consider the least restrictive setting available in making a custody decision as to an age-out.” E.g., Defs.’ Resp. ¶ 182. The officers’ ability to recite the proper standard at trial after preparation by counsel does not show that they were adequately trained by ICE on how to implement it or that they understood what Congress meant by those words. Even granting that ICE officers did know what they needed to do in order to follow the statute, this would not resolve the key question before the Court, which was what they are actually doing in the field. It would not foreclose the possibility that ICE officers knew how to comply with the statute but knowingly chose not to, or found it impossible to follow appropriate and necessary procedures in an actual work environment with limited resources. Testimony from the FOJCs that they knew what they were obligated to do therefore does not preclude a violation of the statute.
Turning from JFRMU’s training to the officers in the field making age-out custody determinations, it is clear that the considerable discretion afforded to these officers is exercised in many field offices in ways that do not follow the statute’s directives. As the Court has
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explained, FOJCs in a number of ICE’s largest field offices do not make attempts to identify sponsors. See, e.g., supra ¶¶ 184, 198–203, 210–11, 263. This leaves many settings unconsidered, any number of which may be the least restrictive setting available—certainly less restrictive, at least, than the adult detention facilities in which these field offices tend to place their age-outs. An even broader set of FOJCs do not consider ICE’s ATD program or ICE bonds as possible detention alternatives to mitigate flight risk. Supra ¶¶ 169, 186, 204, 214, 240, 251, 258, 264, 269, 273, 279. Again, this leads ICE not to consider certain settings that may be less restrictive than those in which the age-outs are regularly placed. This failure to consider ICE’s ATD program or ICE bonds also runs afoul of the Secretary’s obligation to make age-outs “eligible to participate in alternative to detention programs.” 8 U.S.C. § 1232(c)(2)(B). They are not meaningfully eligible for these programs if few FOJCs know how to properly use them in the context of age-outs.
Defendants argue throughout their briefing “that changes in detention and release rates [do not] correspond to compliance or non-compliance with 8 U.S.C. § 1232(c)(2)(B).” E.g., Defs.’ Resp. ¶¶ 316. Defendants are correct that there is no direct correspondence, but detention and release rates are nonetheless probative evidence of compliance with the statute. If the statutory factors were being taken into account, and if the least restrictive setting was being considered in every case, it would be expected that changes and differences in detention rates— especially large changes and differences—would correspond to changes and differences in risk factors and sponsor availability. The fact that expert statisticians were not able to identify such a correspondence goes to show that the risk factors are not driving detention decisions. This is not direct evidence of a violation, but it corroborates the other evidence of a violation, because if differences in detention rates cannot be explained by differences in risk factors, it is less likely
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that risk factors are being taken into account. Of course, no age-out has a right under the statute to any particular placement, so it remains possible in theory that ICE officers are properly taking the risk factors into account and considering the least restrictive setting, but simply choosing not to place age-outs in those least restrictive settings. However, considering the full scope of the testimony, evidence, and expert analysis presented at trial, the Court finds the likelihood of this to be vanishingly small. The evidence at trial was overwhelming that ICE officers making ordinary efforts to identify placements for age-outs tend to be able to find them, and tend to release more of their age-outs. See supra ¶¶ 215–23 (discussing the San Antonio Office), ¶¶ 231–232 (discussing changed procedures at the Harlingen office), ¶¶ 237–240 (same for the Chicago office). And no evidence was presented that engaging in these ordinary efforts and releasing more age-outs than are detained would result in the types of harm that the statute considers relevant—higher rates of absconding, more harm to the age-outs, or to the public.
The completed AORWs, to the extent that they are reliable, further show the importance of investigating alternatives. Defendants’ expert explained that taking all the AORW responses at face value suggests that the lack of a viable sponsor was the main predictor of whether an ageout is detained or released. Supra ¶ 290. The Court doubts that taking the responses at face value is a reliable means of analyzing ICE’s decisionmaking, but it is significant that if the Court takes Defendants at their word, sponsorship and not risk factors, is the most determinative piece of information captured on the form. Plaintiffs’ expert analysis, which the Court found more reliable than Defendants’ rebuttal analysis, demonstrates that the statutory risk factors are not driving ICE’s detention decisions. Different field offices detain age-outs at vastly different rates. If age-outs’ danger to self, danger to community, and risk of flight were being taken into account, it could be expected that variations in identifiable evidence of these risk factors between
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age-outs would correspond to whether or not they were detained. Plaintiffs’ expert did not find such a correlation. Instead, he concluded, and the Court found, that variations in the statutory risk factors do not explain the varying rates of age-out detention between field offices. Supra ¶¶ 291–93, 299. The field office matters much more than the age-out’s history and characteristics, and some offices—Houston, Miami, and New York—detain nearly all the ageouts they encounter. And this despite no evidence that these offices’ age-out populations differed in any material way from their sister offices with low detention rates.
Needless to say, the location of the ICE field office where the age-out is processed is not a proper consideration in the agency’s decisionmaking. “That fact is as extraneous to the merits of the [age-out’s] case as a coin flip would be.” Judalang v. Holder, 565 U.S. 42, 56 (2011) (holding that the Board of Immigration Appeals violated the APA’s arbitrary and capricious standard when it “hing[ed] a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country,” id. at 53); see also id. at 58–59 (“Judge Learned Hand wrote in [an] early immigration case that deportation decisions cannot be made a ‘sport of chance.’” (quoting Di Pasquale v. Karnuth, 158 F.2d 878, 879 (2d. Cir. 1947)). ICE violates the APA by making the outcomes of its detention decisions depend not on the factors Congress has identified as relevant but instead on the field office making the decision.
The testimony of field officers offered some explanation for why different offices detain at different rates. The explanations appear to have little to do with the statutory risk factors or sponsor availability and everything to do with the amount of effort made by ICE field officers exercising their considerable discretion under ICE policies. Offices with the highest detention rates are those where officers make among the least efforts to identify sponsors: Houston, Miami,
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and New York City. Supra ¶¶ 184, 198–203, 210–11. In San Antonio, the detention rate has been consistently low, officers do try to identify sponsors, and they are successful in doing so. Supra ¶¶ 219–20. At offices where the detention rate has fluctuated, fluctuations can be explained by external factors—changes in personnel or responses to litigation—not by changes in the population of age-outs being processed. Supra ¶¶ 227, 237, 247, 254. If field officers at any of these locations were taking the statutory risk factors into account, the detention rate would not be expected to swing so significantly at certain offices. In short, when ICE officers attempt to identify settings for age-outs that are less restrictive than adult detention, they are able to do so almost without fail. The Court heard no testimony from any ICE officer describing a field office that was taking steps to identify detention alternatives that was not able to find such alternatives for the majority of age-outs it processed. And, as set forth above, there was no evidence presented that these efforts resulted in the types of harms of which the statute required ICE to take into account. When ICE officers decline to investigate these kinds of options, they are treating as unavailable certain less restrictive settings that ICE is obligated to consider under the statute.
* * * The statute requires the Secretary of DHS—acting through ICE officers in the field—to take into account the statutory risk factors as they consider placing each age-out in the least restrictive setting available. Doing this necessarily requires making an inquiry aimed at determining what settings are available and which of these is the least restrictive. As was clear from the testimony presented at trial, ICE officers are consistently failing to take either of these steps. Their training does not emphasize the proper considerations or decisionmaking processes and, in fact, gives instructions that are contrary to the statute. Field officers are left with nearly
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unbridled discretion to make age-out custody determinations however they would like, and this

discretion is exercised in ways that does not comply with the agency’s statutory obligations.

To put it in terms of the Administrative Procedure Act, ICE has acted in a manner that is

“arbitrary, capricious, an abuse of discretion” and—most clearly—“otherwise not in accordance

with law” by failing to follow procedures made necessary by Section 1232(c)(2)(B) and to take

into account the factors that the statute requires. 5 U.S.C. § 706(2). In so doing, ICE has also

“unlawfully withheld or unreasonably delayed” required consideration of placement in the least

restrictive setting available to many members of the certified class. 5 U.S.C. § 706(1).

V. CONCLUSION

For the foregoing reasons, the Court finds in favor of Plaintiffs on Counts I and II. The

Court will also GRANT each of the parties’ motions to file unredacted versions of portions of

their briefing under seal. Pls.’ Mot. to File Pls.’ Proposed Findings of Fact and Conclusions of

Law Concerning Liability and Remedies Under Seal, ECF No. 270; Pls.’ Mot. To File Resp. to

Defs.’ Br. Under Seal, ECF No. 316; Defs.’ Unopposed Mot. For Leave to File Under Seal, ECF

No. 320. An order concerning the remedies the Court finds appropriate to remedy the violations

of law found herein is to follow in the near future.

Dated: July 2, 2020

RUDOLPH CONTRERAS United States District Judge

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 Case 1:18-cv-00508-RC Document 21 Filed 03/30/18 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

WILMER GARCIA RAMIREZ,

)

1705 E. Hanna Road

)

Eloy, AZ 85131; and

)

)

SULMA HERNANDEZ ALFARO,

)

27991 Buena Vista Blvd.

)

Los Fresnos, TX 78566; and

)

)

ANA P.,

)

160 S. River Street

)

Hackensack, NJ 07601; and

)

)

On behalf of themselves and others similarly ) Case No. 1:18-cv-00508-RC

situated,

)

) Class Action

Plaintiffs,

)

)

v.

)

)

U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT (ICE),

)

Department of Homeland Security

)

500 12th Street N.W.

)

Washington, DC 20536; and

)

)

THOMAS HOMAN, Acting Director of ICE, )

Department of Homeland Security

)

500 12th Street N.W.

)

Washington, DC 20536; and

)

)

DEPARTMENT OF HOMELAND SECURITY, )

245 Murray Lane S.W.

)

Washington, DC 20528; and

)

)

KIRSTJEN NIELSEN, Secretary of Homeland )

Security,

)

245 Murray Lane S.W.

)

Washington, DC 20528,

)

)

Defendants.

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Case 1:18-cv-00508-RC Document 21 Filed 03/30/18 Page 2 of 24
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. Plaintiffs are immigrant teenagers held in the custody of Defendant U.S.
Immigration and Customs Enforcement (ICE). They bring this action on behalf of themselves and other similarly situated immigrant teenagers, because ICE has failed to consider them for placement in “the least restrictive setting available” and to provide them with meaningful alternatives to detention, as required by amendments to the Trafficking Victims Protection Reauthorization Act (TVPRA). See 8 U.S.C. § 1232(c)(2)(B).
2. Congress enacted the TVPRA in 2008 to protect immigrant children who come to the United States without a parent or guardian. See Pub. L. 110-457 (codified at 8 U.S.C. § 1232). The TVPRA requires federal officials to screen these unaccompanied children for certain vulnerabilities, including whether they are victims of trafficking and whether they fear persecution in their home countries. See 8 U.S.C. § 1232(a)(4). The TVPRA also enacted procedures for ensuring “safe and secure placements” for these children, see § 1232(c)(1), and mandated that the Department of Health and Human Service’s Office of Refugee Resettlement (ORR) promptly place them in the “least restrictive setting,” such as with a parent or family member. 8 U.S.C. § 1232(c)(2)(A).
3. In 2013, Congress enacted an amendment to the TVPRA extending many of these same protections to unaccompanied immigrant children who turn 18 and are transferred by ORR into the custody of ICE. See Pub. L. 113-4, § 1261, 127 Stat. 120-122 (Mar. 7, 2013). That amendment, which is codified as Section 1232(c)(2)(B), requires that ICE “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.” Section 1232(c)(2)(B) further requires that such children “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 . . . with
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an individual or an organizational sponsor, or in a supervised group home.” 8 U.S.C. § 1232(c)(2)(B).
4. Each of the Plaintiffs recently turned 18 and was transferred by ORR to ICE. Upon their transfer to ICE, ICE did not comply with the requirements set forth in Section 1232(c)(2)(B). Specifically, it did not “consider placement in the least restrictive setting available” or make any alternative to detention programs available. Quite the opposite, it automatically placed Plaintiffs in adult detention without considering any alternatives.
5. On information and belief, ICE is routinely and systematically failing to comply with the requirements of Section 1232(c)(2)(B) with respect to unaccompanied immigrant children transferred into ICE’s custody when they turn 18. Moreover, ICE has failed to establish any policies, programs, or procedures implementing Section 1232(c)(2)(B)’s statutory requirements that ICE “consider placement in the least restrict[ed] setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight,” and that ICE provide these immigrants with “alternative to detention programs.” 8 U.S.C. § 1232(c)(2)(B). Instead, ICE automatically places unaccompanied immigrants who have turned 18 into adult detention without considering or making available the least restrictive (or other) alternatives.
6. Accordingly, Plaintiffs seek to represent a class of all unaccompanied immigrant children who have been transferred to the custody of ICE upon turning 18 and as to whom ICE has not considered placement in the least restrictive setting available and/or made alternative to detention programs available, as required by Section 1232(c)(2)(B).
7. Plaintiffs ask this Court to grant declaratory and injunctive relief to each of them individually and to the class they represent, enjoin ICE from detaining Plaintiffs and other class members without considering placement in the least restrictive setting available after taking into
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account their danger to themselves and others and risk of flight, and making alternative to detention programs available to them, including release to individual and organizational sponsors and supervised group homes.
JURISDICTION AND VENUE 8. This Court has jurisdiction over the claims alleged in this Complaint pursuant to 28 U.S.C. § 1331, as they arise under federal statutes, including 8 U.S.C. § 1232(c)(2)(B) and 5 U.S.C. § 706(2). 9. The Administrative Procedure Act, 5 U.S.C. § 706(2), waives the U.S. government’s sovereign immunity where, as here, federal agencies have acted in violation of the law. 10. The Court has authority to issue a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and Rule 57 of the Federal Rules of Civil Procedure. 11. The Court has authority to grant injunctive relief pursuant to 5 U.S.C. §§ 702 and 706, and Rule 65 of the Federal Rules of Civil Procedure. 12. Venue properly lies in the District of Columbia because a substantial part of the events and omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(e)(1)(B). Defendants are headquartered in Washington, D.C., and on information and belief, Defendants’ decisions regarding the policies and procedures relating to the detention of 18 year-olds who “age out” of ORR custody are being made in the District of Columbia.
PARTIES 13. Plaintiff Wilmer Garcia Ramirez is an 18 year-old from Guatemala. He entered the United States without inspection on March 26, 2017, at the age of 17. He is currently detained at the Eloy Detention Center in Eloy, Arizona.
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14. Plaintiff Sulma Hernandez Alfaro is an 18 year-old from Honduras. She entered the United States without inspection in December 2016, at the age of 16. She is currently detained at the Port Isabel Service Detention Center in Los Fresnos, Texas.
15. Plaintiff Ana P. is an 18 year-old from El Salvador. She entered the United States without inspection in January 2018 with her 2-year-old son. She is currently detained at the Bergen County Jail in Bergen, New Jersey.
16. Defendant Department of Homeland Security (DHS) is a department of the Executive Branch of the United States government. It is located in Washington, D.C. DHS is responsible for enforcing federal laws governing border control, customs, trade, and immigration.
17. Defendant Kirstjen Nielsen is sued in her official capacity as the Secretary of the DHS. In this capacity, she directs each agency within DHS, including ICE. As a result, in her official capacity, Secretary Nielsen is responsible for the administration and enforcement of the immigration laws.
18. Defendant ICE is an agency within DHS. It, too, is located in Washington, D.C. It is in charge of the administration and enforcement of federal immigration laws, including implementing and complying with 8 U.S.C. § 1232(c)(2)(B), and determining whether and where to detain Plaintiffs and other immigrants who are transferred by DHS into the custody of ICE upon turning 18.
19. Defendant Thomas Homan is sued in his official capacity as the Acting Director of ICE. In that capacity, he is responsible for the administration and enforcement of federal immigration laws, including implementing and complying with 8 U.S.C. § 1232(c)(2)(B), and determining whether and where to detain Plaintiffs and other immigrants who are transferred by DHS into the custody of ICE upon turning 18.
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STATEMENT OF FACTS A. Wilmer’s Background and Immigration History 20. Wilmer Garcia Ramirez was born in 1999, in Caserio Pinalito Matazano, within the department of Chicimula, Guatemala. He is one of six children. His family lived in poverty in Guatemala, sharing a one-room house with dirt walls, a tin roof, and no floors. 21. Wilmer began working in his family’s fields at the age of six. Wilmer walked with his father more than an hour to the fields and worked there five days per week, cutting underbrush with a machete. 22. When he was approximately 8 years old, Wilmer began working in other people’s fields. He worked daily for 9 or more hours. He would often make the 30-minute walk to the fields by himself. 23. When Wilmer was approximately 9 years old, his father began taking him and his brothers to work at a coffee plantation in Escipulas, Guatemala. From the ages of 9 to 15, Wilmer worked at the coffee plantation in Escipulas for three months each year. 24. The working conditions in Escipulas were difficult. Wilmer worked from about 6 a.m. to about 5 p.m. with a small break for lunch. The work involved cutting coffee beans by hand. He was required to stand along the row of plants all day and was not allowed to take breaks, even to use the restroom. Wilmer was required to fill about two and a half barrels of coffee beans every day. In return, he earned approximately $3.40 (25 Quetzales) daily, all of which he gave to his parents. 25. While working in Escipulas, Wilmer’s boss provided housing and food. Wilmer worked with 15 other people, with whom he stayed in a bedroom-sized open-air structure. Wilmer slept on the floor.
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26. If Wilmer did not complete his work, his boss would not feed him. Even when he was fed, most meals were limited to beans and rice.
27. In 2016, when Wilmer was 16, he went to work at another coffee plantation in Honduras for three months. He traveled there alone.
28. At the coffee plantation in Honduras, Wilmer worked 11 or more hours a day, cutting coffee, cleaning plants, and removing weeds from the fields. He would work for about 20 days, take a six-hour bus ride home to visit for a night, and then return to Honduras.
29. In Honduras, Wilmer had to fill three barrels full of coffee beans each day, and was paid approximately $1.35 (10 Quetzales) for each barrel. Each time he returned home, he gave the money to his parents.
30. The conditions at this plantation were even worse than those in Escipulas. Again, Wilmer slept on the floor with approximately 30 other workers. And while Wilmer’s boss provided food, he withheld it whenever he was unsatisfied with a laborer’s work. In one instance, Wilmer was not fed for two days. When Wilmer and the other workers were fed, it was only beans and water.
31. In March 2017, at the age of 17, Wilmer left Guatemala, seeking a better life in the United States.
32. Wilmer entered the United States near Andrade, California, on or about March 26, 2017.
33. Wilmer was apprehended by U.S. Customs and Border Protection officers after he crossed the border. The officers determined that he was an unaccompanied alien child and transferred him to the custody of ORR.
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34. While in ORR custody, Wilmer petitioned the Superior Court of Arizona to declare him a dependent of the State due to his parent’s neglect in Guatemala. The court granted Wilmer’s petition on September 19, 2017, finding that it was not in Wilmer’s best interest to be returned to Guatemala due to the circumstances described above, including being neglected by his parents and forced to work as a minor in deplorable conditions.
35. Wilmer then filed a petition for special immigrant juvenile status (SIJS) based on the state court’s dependency order. SIJS is granted to immigrant children who demonstrate that it is not in their best interests to return to their home country and parents because of abuse, abandonment, or neglect. 8 U.S.C. § 1101(a)(27)(J). If immigrant children meet the criteria for SIJS they are eligible for lawful permanent residency. Id.
36. U.S. Citizenship and Immigration Services received Wilmer’s SIJS application on October 12, 2017. That application remains pending. This is despite the fact that Wilmer meets all of the statutory criteria for SIJ status, as evidenced by the state court’s dependency order finding he suffered parental neglect in Guatemala and that it would not be in his best interest to return there.
37. Wilmer has a family friend in Warmister, Pennsylvania, who is willing to act as his sponsor and provide for his care and custody.
38. ORR transferred Wilmer to the custody of ICE in 2017, on his eighteenth birthday. ICE is currently detaining him at Eloy Detention Center in Eloy, Arizona.
39. On January 5, 2018, Wilmer’s attorney sent a request to ICE asking the agency to release Wilmer to the least restrictive setting available as required by 8 U.S.C. § 1232(c)(2)(B). Wilmer included information about his SIJS application, his life in Guatemala, and his potential sponsor in Pennsylvania. Wilmer’s attorney did not receive a response to that letter.
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40. To date, ICE has failed to consider or make any determination regarding whether Wilmer’s detention was “the least restrictive setting available after taking into account [his] danger to self, danger to the community, and risk of flight.” It has also failed to make available to Wilmer any alternative to detention programs, as required by Section 1232(c)(2)(B).
B. Sulma’s Background and Immigration History 41. Sulma Hernandez Alfaro was born in 2000, in Corquin, Copan, Honduras. 42. Sulma is one of ten children. For the first several years of her life, she, her mother, and her siblings lived with her paternal grandparents. Her father worked in a different town. 43. Sulma was subjected to multiple forms of abuse by members of her father’s family, primarily her uncle. Although efforts were made to protect Sulma from this abuse, they were not successful. Sulma also feared for her safety because she was threatened, including with death, by her uncle. 44. Because of the abuse she suffered and the threats she faced, Sulma left Honduras and traveled to the United States so that should would be safe. She traveled by bus, train, and car to the United States. The trip took about a month and a half. 45. Sulma entered the United States near Eagle Pass, Texas, on or about September 19, 2016. After she arrived, she approached a Border Patrol unit and asked for help. U.S. Customs and Border Patrol agents determined she was an unaccompanied alien child and transferred her to the custody of ORR. ORR placed her in a shelter for unaccompanied immigrant children in San Benito, Texas. 46. Sulma was housed at the ORR shelter in San Benito for more than a year. She was treated well there, provided good food, and the staff was friendly and kind. She particularly enjoyed the classes she was able to take, especially English and math.
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47. While in ORR custody, Sulma was diagnosed with Post-Traumatic Stress Disorder resulting from the abuse she suffered in Honduras.
48. Sulma applied for asylum on November 16, 2017, based on the abuse and harm she suffered from her father’s family, and particularly her uncle. An asylum officer interviewed her regarding her asylum claim on January 17, 2018. She is currently awaiting a decision on her asylum application.
49. When Sulma turned 18 in 2018, ORR transferred her to ICE’s custody. ICE placed her in the Port Isabel Detention Center in Los Fresnos, Texas.
50. Sulma has had a difficult time adjusting to ICE detention. She currently sleeps in a large room with up to 67 other detainees. She is not receiving counseling to address her post-traumatic stress disorder, and she is not able to take classes or continue her schooling.
51. On February 2, 2018, counsel for Sulma sent a letter to ICE requesting that Sulma be released to La Posada Providencia, a shelter home for immigrants and refugees in San Benito, Texas. An ICE deportation officer responded verbally that Sulma would not be released, but did not give any reason for that decision.
52. ICE has failed to consider or make any determination regarding whether Sulma’s detention is “the least restrictive setting available taking into account [her] danger to self, danger to the community, and risk of flight,” or to make any alternative to detention programs available to her, as required by Section 1232(c)(2)(B).
C. Ana’s Background and Immigration History 53. Ana was born in 2000 in El Paraiso, in the department of Sonsonate, El Salvador. Ana is the second of eight children in her family.
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54. Ana grew up in a two-room home with her parents, grandmother, and seven siblings. Her parents separated four years ago and her father left their home. Ana’s family relies solely on the money her father sends to her grandmother.
55. When Ana was fifteen years old, she had a son, D. The father of her son has not participated in her child’s life or provided financial support.
56. Ana’s family was already strained financially, and she had to find a job to support D.
57. Ana was unable to find work in her hometown of El Paraiso. In order to provide for her son, Ana had to take a job in the town of San Julian, El Salvador, which is about an hour and a half from El Paraiso. She would travel there in the back of a pickup truck, and would work there during the week, coming home on the weekends to see her son.
58. On her way home to El Paraiso one Saturday, Ana was stopped by two masked gang members, who demanded money from her. She had no money to give them. The gang members told her not to return to the area and threatened her with death if she did so.
59. Ana went home, took her son D., and returned to San Julian with him the same day. She has not returned to her family home in El Paraiso since that day.
60. Ana decided to leave El Salvador due to the violence there. She and her son traveled by bus to the United States, a journey that lasted about two weeks.
61. Ana and D. entered the United States in January 2018. They crossed the border and entered at a Port of Entry, where U.S. Customs and Border Protection agents determined that both Ana and her son were unaccompanied alien children and transferred them to ORR custody. ORR placed them in a shelter in New York.
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62. On Ana’s 18th birthday in February, she was told to report to a government office at 5 a.m. and not to bring her son. When she arrived at the office, two ICE officers arrested her and transferred her to the Bergen County Jail. She did not have a chance to say good-bye to her son.
63. Ana has not seen her son or talked to him since ICE detained her at the Bergen County Jail. Nor has she received any updates concerning her son.
64. Ana has described the experience of being separated from her son D. as breaking her heart.
65. Ana has a willing sponsor: a couple in Texas whom she met when they were visiting family in El Salvador in 2017. The couple are friends of her son’s father’s family, and they have agreed to sponsor and support Ana and her son. Ana is in almost daily contact with the couple, who submitted family reunification paperwork to ORR and submitted the necessary fingerprints. Ana turned 18 while preparations for her release by ORR to the couple was in process.
66. On March 15, 2018, Ana’s attorney submitted a request for release on humanitarian parole under 8 U.S.C. § 1182(d)(5), which is given to those who can demonstrate an “urgent humanitarian reason[] or significant public benefit” to parole. To date, ICE has not communicated a determination on that parole request.
67. To date, ICE has failed to consider or make any determination regarding whether Ana’s detention was “the least restrictive setting available after taking into account [his] danger to self, danger to the community, and risk of flight.” It has also failed to make available to Ana any alternative to detention programs, as required by Section 1232(c)(2)(B).
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LEGAL BACKGROUND A. Laws And Agreements Governing The Care And Custody Of
Unaccompanied Immigrant Children 68. Three key laws and agreements govern the federal government’s treatment and custody of unaccompanied immigrant children: the 1997 Flores Settlement Agreement; the Homeland Security Act of 2002; and the TVPRA. 69. The Flores Settlement Agreement resulted from a lawsuit filed by a group of immigrant children challenging their detention and seeking to be released to family members and/or sponsors within the United States. See Flores v. Sessions, 862 F.3d 863, 869 (9th Cir. 2017) (discussing the history of the Flores litigation). In 1997, the plaintiff children entered into a consent decree with the federal government that created a nationwide policy governing the custody and release of immigrant children by immigration authorities. Flores v. Reno, No. CV 85-4544, Settlement Agreement, available at https://cliniclegal.org/sites/default/files/attachments /flores_v._reno_settlement_agreement_1.pdf (“Flores Settlement Agreement”). Among other things, the agreement requires: (a) release without unnecessary delay, (b) release to an adult caregiver, with parents and other family members given priority, and (c) placement in the “least restrictive setting.” Flores Settlement Agreement ¶¶ 11, 14. 70. At the time of the Flores Settlement Agreement, a single agency—the Immigration and Naturalization Service (INS)—administered the custody, detention, and deportation of immigrant children. In 2002, Congress passed the Homeland Security Act (HSA), which abolished the INS, created a new Department of Homeland Security, and transferred all functions related to the care and custody of unaccompanied immigrant children to ORR, a sub-department of the Department of Health and Human Services. Pub. L. 107–296, 116 Stat. 2153 (Nov. 25, 2002).
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71. Section 462 of the HSA extended the key terms of the Flores Settlement Agreement to all unaccompanied immigrant children, including the requirement that ORR place such children in the least restrictive setting. Id.
72. In 2008, Congress further strengthened protections for unaccompanied children through the TVPRA. See Pub. L. 110–457, 122 Stat. 5044 (Dec. 23, 2008). Like the Flores Settlement Agreement, the TVPRA mandates that an unaccompanied child “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” Id. (emphasis added).
73. Under the TVPRA, ORR endeavors to place each unaccompanied immigrant child with a suitable sponsor, such as a parent or family member. A sponsor is suitable if he or she is “capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A); see also ORR, Children Entering the United States Unaccompanied: Section 2, available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states -unaccompanied-section-2.
74. In 2013, Congress enacted a statutory provision to address the placement of unaccompanied immigrant children who have turned 18 and been transferred into ICE custody. See Violence Against Women Act in 2013. Pub. L. 113-4, 127 Stat. 156, (codified at 8 U.S.C. § 1232(c)(2)(B) (March 7, 2013). That provision, which was codified as Section 1232(c)(2)(B), requires that ICE “shall consider placement” of such 18-year olds “in the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” Id. (emphasis added).
75. Section 1232(c)(2)(B) further requires that such children “shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the
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alien’s need for supervision, which may include placement . . . with an individual or an organizational sponsor, or in a supervised group home.” Id. (emphasis added).
B. The Requirement That Immigrant Children Be Placed In The “Least Restrictive Setting”
76. The term “least restrictive setting” was first used in the Flores Settlement Agreement, which required the government to release children to the “least restrictive setting appropriate to the minor’s age and special needs . . . .” Flores Settlement Agreement ¶ 11.
77. Congress subsequently codified the term “least restrictive setting” in the TVPRA, requiring that immigrant children “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
78. ORR has multiple placement options for unaccompanied children. First, if a suitable sponsor is available, ORR will release the unaccompanied child to that sponsor. See 8 U.S.C. §§ 1232(b)(2)(A); 1232(c)(3). If a suitable sponsor is not available, ORR will house the child in one of three types of facilities—shelter care, a staff secure shelter, or a secure shelter, which is “akin to a local juvenile hall.” Saravia v. Sessions, No. 17-CV-03615-VC, 2017 WL 5569838, at *3 (N.D. Cal. Nov. 20, 2017), appeal docketed No. 18-15114.
79. The TVPRA requires that a child shall not be placed in a secure facility absent a finding that he or she is a flight risk or dangerous. 8 U.S.C. § 1232(c)(2)(A). And, when ORR places a child in a secure facility, it is required to review that placement every 30 days. Id.
80. In 2013, when Congress amended Section 1232, it chose to extend the foregoing protections afforded by the TVPRA to unaccompanied children to those immigrant children who turn 18 and are transferred into ICE’s custody. See Pub. L. 113-4, § 1261. As discussed above, Section 1232(c)(2)(B) requires that ICE place such 18 year-olds “in the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of
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flight,” and that ICE make available to them “alternative to detention programs, utilizing a continuum of alternatives . . . which may include placement . . . with an individual or an organizational sponsor, or in a supervised group home.” 8 U.S.C. § 1232(c)(2)(B).
81. But unlike ORR, which has multiple non-detention options for placing a child, (i.e., release to a sponsor, foster care, shelter care, staff-secure shelters, or a secure shelter), ICE maintains only one type of placement—adult detention. ICE has not created a continuum of alternatives to detention for unaccompanied immigrant children who turn 18, as required by Section 1232(c)(2)(B).
82. In addition, ICE currently does not have a uniform, nationwide practice of complying with Section 1232(c)(2)(B)’s related requirement that it place unaccompanied children who have turned 18 “in the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” And, to the extent it has policies or procedures requiring such compliance, those policies and procedures are not being consistently enforced and followed. See Ex. A, Declaration of Jajah Wu, Young Center, ¶¶ 17-62; Ex. B, Decl. of Lisa Knox, Centro Legal de Raza, ¶¶ 4-10; Ex. C, Decl. of Andrea Saenz, Brooklyn Defender Services, ¶¶ 4-6, 9-10; Ex. D, Decl. of Diana Tafur, RAICES, ¶¶ 4-26; Ex. E, Declaration of Olivia Gibbons, Northwest Immigrant Rights Project, ¶¶ 4, 9-10.
83. In the last year, there has been a significant and noticeable increase in the number and proportion of cases in which ICE has failed to comply with Section 1232(c)(2)(B) and to place unaccompanied immigrant children who have turned 18 in the least restrictive setting and in alternatives to adult detention. Ex. B ¶¶ 4-5; Ex. C ¶¶ 4-6; Ex. D ¶¶ 4, 27. While ICE’s current practices appear to differ by office, with respect to the offices as to which plaintiffs have been able to obtain evidence, there appear to be few, if any, cases where ICE currently considers placement
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in a less restrictive setting based on the 18 year old’s danger to self or others or risk of flight. Instead, in the majority of cases, unaccompanied children are automatically sent to adult detention and left there until their removal cases are resolved or they are released by the immigration court. And, when they are released by ICE, it is not due to its consideration of the three factors enumerated in Section 1232(c)(2)(B), but because of some completely unrelated factor, such as the availability of beds in adult detention. See Ex. A ¶¶ 17-62; Ex. B ¶¶ 4-10; Ex. C ¶¶ 4-10; Ex. D ¶¶ 3-27; Ex. E ¶¶ 4, 9-10.
84. Currently, in determining where to place 18 year olds who have been transferred to ICE by ORR, ICE rarely, if ever, complies with Section 1232(c)(2)(B). ICE does not make a determination as to, or place 18-year olds in, “the least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” Id. Nor does it make available to such immigrants “alternative to detention programs, utilizing a continuum of alternatives” that include placement “with an individual or an organizational sponsor, or in a supervised group home.” Instead, it places such individuals in adult detention without considering alternatives. See, Ex. A ¶¶ 17-62; Ex. B ¶¶ 4-10; Ex. C ¶¶ 4-10; Ex. D ¶¶ 3-27; Ex. E ¶¶ 4, 9-10.
CLASS ACTION ALLEGATIONS 85. Plaintiffs seek to represent a class under Federal Rule of Civil Procedure 23(b)(2) consisting of: All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternative to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B). 86. The class is so numerous that joinder of all class members is impracticable. In Fiscal Year 2017, 40,810 children were referred to ORR as unaccompanied alien children. Of
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those, 32%, or 13,059 children were age 17. Plaintiffs estimate that at the present point in time, the class contains approximately 100 18 year-olds.
87. In addition, because class members are routinely being granted immigration relief or removed from the country, the composition of the class changes on a regular basis and the class is inherently transitory.
88. All members of the class are subject to ICE’s failure to comply with, and to establish policies and practices implementing, the requirements of Section 1232(c)(2)(B).
89. There are questions of law and fact common to the class. These questions include, but are not limited to: whether ICE has violated Section 1232(c)(2)(B) by failing to place class members in the least restrictive setting available (considering danger to self and community and flight risk); and whether ICE has violated Section 1232(c)(2)(B) by failing to consider class members for alternative to detention programs, including providing the types of alternative placements described in the statute.
90. Plaintiffs’ claims are typical of the claims of all members of the proposed class. Plaintiffs have no interests separate from those of the class, and seek no relief other than the relief sought on behalf of the class.
91. Plaintiffs will fairly and adequately represent the interests of the class because (a) they are willing and able to represent the proposed class and have every incentive to pursue this action to a successful conclusion; (b) their interests do not in any way conflict with those of absent members of the class; and (c) they have retained counsel who are competent and experienced in litigating class actions, civil rights, and immigrants’ rights litigation.
92. The named Plaintiffs are adequate representatives. They have suffered the same injury as all class members—ICE’s failure to consider their placement in the least restrictive
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setting under Section 1232(c)(2)(B), and ICE’s failure to make alternatives to detention available utilizing a continuum that includes release to a sponsor or placement in a group home. Named Plaintiffs assert the same statutory violations as each member of the class: ICE’s failure to comply with Section 1232(c)(2)(B).
93. Plaintiffs are also adequate representatives based on the relief they seek. Plaintiffs seek two forms of relief: first, a declaration that ICE is failing to comply with Section 1232(c)(2)(B) and thereby violating the unambiguous commands in the statute; and second, an injunction barring ICE from continuing to violate Section 1232(c)(2)(B). If Plaintiffs succeed in obtaining this declaratory and injunctive relief, such relief will adequately ameliorate the harm ICE is causing to each class member. Accordingly, there is no conflict of interest among named Plaintiffs and the class members they represent.
94. Plaintiffs’ counsel are experienced in class action, civil rights, and immigrants’ rights litigation. Plaintiffs and Plaintiffs’ counsel will fairly and adequately represent the interests of the class.
95. Given the commonality of the questions shared by all class members, prosecuting separate claims as to individual class members would create a risk of inconsistent individual adjudications that would establish different and potentially incompatible rules and standards for ICE to apply when ORR transfers 18 year-old unaccompanied immigrants into ICE’s custody.
96. Defendants have acted, and failed to act, on grounds that apply generally to the class, such that injunctive and declaratory relief are appropriate with respect to the class as a whole.
97. Plaintiffs and the class they seek to represent have been directly injured by the Defendants’ violations of Section 1232(c)(2)(B). They are at risk of future harm from continuation
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of ICE’s failure to comply with Section 1232(c)(2)(B) and failure to enact policies, programs and practices implementing and effectuating Section 1232(c)(2)(B).
COUNT I Administrative Procedure Act—5 U.S.C. § 706(2) Defendants Are Violating 8 U.S.C. § 1232(c)(2)(B) By Failing To Consider The Least Restrictive Setting For Plaintiffs And Failing To Make Alternatives To Detention Available 98. Plaintiffs reallege and incorporate the allegations of all preceding paragraphs. 99. ICE has failed to consider the “least restrictive setting” for each Plaintiff and has failed to consider each Plaintiff for alternatives to detention in compliance with § 1232(c)(2)(B). 100. ICE’s failure to consider the least restrictive setting for each Plaintiff and to make alternative to detention programs available to Plaintiffs violates § 1232(c)(2)(B), which requires that ICE “shall consider placement in the least restrictive setting available” for all immigrants who are transferred into its custody after turning 18, and that these immigrants “shall be eligible to participate in alternative to detention programs.” Id. (emphasis added). 101. Each Plaintiff specifically asked ICE to place him or her in the least restrictive setting available and to allow him or her to participate in alternative to detention programs. Their requests have been summarily denied and/or ignored. 102. ICE has no uniform practice of placing 18 year-olds who are transferred by ORR into the “least restrictive setting available after taking into account [their] danger to self, danger to the community, and risk of flight” or assessing what the least restrictive setting would be. 103. ICE has no uniform practice of making 18 year-olds eligible to participate in alternatives to detention, including placement with an individual sponsor, an organizational sponsor, or in a supervised group home as an alternative to detention.
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104. ICE’s failure to make “least restrictive setting” determinations violates Section 1232(c)(2)(B), which requires that ICE “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.” Id. (emphasis added).
105. ICE’s failure to make alternatives to detention available to 18 year-olds transferred from ORR custody violates Section 1232(c)(2)(B), which requires that such immigrants “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 . . . with an individual or an organizational sponsor, or in a supervised group home.” Id. (emphasis added).
106. ICE’s disregard of Section 1232(c)(2)(B)’s requirements violates the APA in that ICE’s actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” 5 U.S.C. § 706(2)(A), and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” 5 U.S.C. § 706(2)(C).
COUNT II Administrative Procedure Act—5 U.S.C. § 706(1) Defendants Are Failing To Take Action They Are Required To Take
Under 8 U.S.C. § 1232(c)(2)(B) 107. Plaintiffs reallege and incorporate the allegations of all the preceding paragraphs. 108. The Court may “compel agency action unlawfully withheld or unreasonably delayed . . . .” 8 U.S.C. § 706(1). To make a showing under Section 706(1), Plaintiffs must demonstrate “that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis omitted). 109. Section 1232(c)(2)(B) sets out two discrete, nondiscretionary actions that ICE is required to take with regard to all 18 year-olds transferred into its custody from ORR. First, ICE
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Case 1:18-cv-00508-RC Document 21 Filed 03/30/18 Page 22 of 24 must “consider placement in the least restrictive setting.” 8 U.S.C. § 1232(c)(2)(B). Second, ICE “shall” make 18 year-olds “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 . . . with an individual or an organizational sponsor, or in a supervised group home.” Id.
110. As explained above, ICE has not taken, and is not taking, either of these statutorilyrequired actions.
111. Accordingly, Plaintiffs seek a court order under 5 U.S.C. § 706(1) compelling ICE to take the actions it is required to take pursuant to Section 1232(c)(2)(B).
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court: A. Assume jurisdiction over this matter; B. Certify a class of unaccompanied immigrant children who have been transferred to ICE because they have turned 18, as defined in Paragraph 65 above; C. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure; D. Declare that ICE’s failure to place Plaintiffs and members of the class 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); E. Declare that ICE’s failure to make “alternative to detention programs” available to Plaintiffs and members of the class violates 8 U.S.C. §1232(c)(2)(B) and 5 U.S.C. §§ 706(1) and 706(2); F. Order that ICE comply with 8 U.S.C. §1232(c)(2)(B) by considering Plaintiffs and members of the class for, and placing them in, the last restrictive setting available after taking into account each individual’s danger to self, danger to community, and risk of flight; G. Order that ICE comply with 8 U.S.C. § 1232(c)(2)(B) by allowing Plaintiffs and members of the class 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; H. Award Plaintiffs their attorneys’ fees and costs; and I. Grant such other and further relief as the Court deems equitable, just, and proper.
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Dated: March 30, 2018

/s/ Tia T. Trout Perez Tia T. Trout Perez D.C. Bar No. 990447 KIRKLAND & ELLIS LLP 655 Fifteenth St., NW Washington, DC 20005 Tel.: (202) 879-5000 Fax: (202) 879-5200 tia.trout-perez@kirkland.com
Stephen R. Patton Anne K.H. Reser KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Tel.: (312) 862-2000 Fax: (312) 862-2200 stephen.patton@kirkland.com anne.reser@kirkland.com
Katherine Melloy Goettel NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street, Suite 1300 Chicago, Illinois 60604 Tel: (312) 660-1335 Fax: (312) 660-1505 kgoettel@heartlandalliance.org

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 Garcia Ramirez v. U.S. Immigration and Customs Enforcement, Slip Copy (2019)

2019 WL 7370368 Only the Westlaw citation is currently available. United States District Court, District of Columbia.
Wilmer GARCIA RAMIREZ, et al., Plaintiffs, v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
Civil Action No. 18-508 (RC) |
Signed 11/07/2019
Attorneys and Law Firms
Barack Echols, Erin Reynolds, Michael B. Slade, Amanda Jacobowski, Anne K. Reser, Jamie R. Netznik, Kirkland & Ellis LLP, Gianna Borroto, Ruben Loyo, Katherine E. Melloy Goettel, National Immigrant Justice Center, Stephen R. Patton, Kirland & Ellis, Chicago, IL, Jonathan Fombonne, Orla P. O’Callaghan, Kirkland & Ellis LLP, Houston, TX, Paul L. Quincy, Tia T. Trout Perez, Britney Ann Lewis, Devin Allan DeBacker, Kevin Ross Powell, Patrick T. Haney, Paul F. Brinkman, Rebecca Wall Forrestal, Kirkland & Ellis LLP, Washington, DC, for Plaintiff Wilmer Garcia Ramirez.
Barack Echols, Erin Reynolds, Michael B. Slade, Pro Hac Vice, Amanda Jacobowski, Anne K. Reser, Jamie R. Netznik, Kirkland & Ellis LLP, Gianna Borroto, Ruben Loyo, Katherine E. Melloy Goettel, National Immigrant Justice Center, Stephen R. Patton, Kirland & Ellis, Chicago, IL, Jonathan Fombonne, Orla P. O’Callaghan, Kirkland & Ellis LLP, Houston, TX, Paul L. Quincy, Tia T. Trout Perez, Britney Ann Lewis, Devin Allan DeBacker, Kevin Ross Powell, Patrick T. Haney, Paul F. Brinkman, Rebecca Wall Forrestal, Kirkland & Ellis LLP, Washington, DC, for Plaintiff Sulma Hernandez Alfaro.
Gianna Borroto, Katherine E. Melloy Goettel, Ruben Loyo, National Immigrant Justice Center, Michael B. Slade, Pro Hac Vice, Amanda Jacobowski, Jamie R. Netznik, Kirkland & Ellis LLP, Stephen R. Patton, Kirland & Ellis, Chicago, IL, Jonathan Fombonne, Kirkland & Ellis LLP, Houston, TX, Tia T. Trout Perez, Devin Allan DeBacker, Kevin Ross Powell, Paul F. Brinkman, Kirkland & Ellis LLP, Washington, DC, for Plaintiff Ana P.
1

Cara Elizabeth Alsterberg, Christina Parascandola, Colin Abbott Kisor, Theo Nickerson, Evan Paul Schultz, Benjamin Jay Zeitlin, Kevin Charles Hirst, William Herrick Weiland, Yamileth G. Davila, United States Department of Justice, Civil Division, Washington, DC, for Defendants.
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
RUDOLPH CONTRERAS, United States District Judge
*1 This case concerns alleged violations of the Administrative Procedures Act (“APA”) by the U.S. Immigration and Customs Enforcement (“ICE” or “the Agency”). The government has moved for Summary Judgment on Count One but not Count Two of the Amended Complaint. Defs.’ Mot. for Partial Summ. J. (“MSJ”), ECF No. 209. The Government concedes that there is a genuine dispute of fact on Count Two that will have to be litigated at trial. The Government has evidently overlooked the reality that this factual dispute is equally crucial to adjudication of Count One because the two claims rely on the same set of facts and challenge the same conduct by ICE. As a result, summary judgment on either count is equally inappropriate at this stage, and the motion is denied.
In their Amended Complaint, plaintiffs allege two counts of violations of the APA. Count One alleges a violation of § 706(2), which says that a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be” among other things “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). Count Two is similar. It alleges a violation of § 706(1) which says that a reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). In both Counts, Plaintiffs allege that ICE is failing to fulfill its statutory obligation under 8 U.S.C. § 1232(c)(2)(B) to “consider placement in the least restrictive setting available” when

Garcia Ramirez v. U.S. Immigration and Customs Enforcement, Slip Copy (2019)

processing HHS age-outs. Both counts allege that the failure to consider the least restrictive placement violates the APA. In Count One, the Plaintiffs argue that it is arbitrary, capricious, or an abuse of discretion for ICE not to consider placement in the least restrictive setting. In Count Two they argue that ICE is unlawfully withholding consideration of placement in the least restrictive setting and they ask the Court to compel the Agency to undertake such consideration. Both Counts are about what ICE is actually doing with each age-out it encounters. Neither is about what official policy ICE might have written down. In both Counts, the Plaintiffs are alleging that ICE is not fulfilling its obligation to actually consider placement in the least restrictive setting for each age-out that comes into its custody.
The Government has moved for summary judgment, which the Court can only grant if the Government “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In footnote three to its memorandum in support of its motion for summary judgment, the Government identifies a disputed issue of fact that it says precludes summary judgment on Count Two. MSJ at 8 n.3. The government says it is not seeking summary judgment on Count Two because there is genuine dispute over “whether ICE Officers in the field are indeed considering the least restrictive setting available, as 8 U.S.C. § 1232(c)(2)(B) and ICE policy require.” Id. The Government says it needs to go to trial to present testimony to show the Court that ICE Officers in the field are actually considering the least restrictive setting. See id. This means the Court cannot decide right now as a matter of law that the agency is unlawfully withholding the action—considering placement in the least restrictive setting—that it is obligated to take. The problem for the Government is that the same logic applies for Count One, because Count One is challenging the same exact conduct. The Government concedes in this footnote that it is genuinely disputed right now whether ICE Officers in the field are actually considering the least restrictive setting. Id. This also means that the Court cannot determine—for Count Two—whether the agency is abusing its discretion or acting not in accordance with law, or exceeding its statutory authority by not considering the least restrictive placement.
*2 The Government argues that it is entitled to summary judgment because ICE requires officers to complete Age-Out Review Worksheets and to undergo certain training. See MSJ at 11–20. But this would not defeat the Plaintiffs’ claims because the Plaintiffs are not claiming
2

that ICE is obligated to have a policy in place for considering the least restrictive setting. Rather, they are claiming that ICE is obligated to actually consider the least restrictive setting and that ICE has failed, and continues to fail, to do so. The Government has conceded that this is unproven at this stage. Later in its briefing the Government says that “[t]he material facts show that Defendants are considering alternatives to detention which are available.” MSJ at 21. This could be a basis for summary judgment if the Court agreed, but there is no way to square this statement with the Government’s earlier concession that there is a genuine dispute regarding what ICE Officers are actually doing out in the field. At summary judgment, the Court must draw factual inferences in favor of the nonmoving party so, where the moving party’s briefing is internally inconsistent, the Court accepts the version of the facts on which the Plaintiffs’ claim survives. On this issue that means the Court accepts the Government’s concession that there is a genuine dispute here.
Finally, the Government makes an argument focused on the class nature of the claim in an attempt to distinguish Count One and Count Two. Defs.’ Reply Br. in Supp. of Mot. for Partial Summ. J. at 8–10, ECF No. 236. The Government says that “Plaintiffs cannot prevail at trial unless they prove that there are sufficiently numerous (to maintain a class) specifically discernable age-out class members who are in ICE detention without ICE having considered the least restrictive setting available for them.” Id. at 8. The Government seems to suggest that there will not be enough class members for the claim to succeed as Plaintiffs have framed it but, again, this assumes the very issue that the Government has conceded is a matter of genuine dispute. If ICE Officers in the field are not actually considering the least restrictive setting, then there might well be plenty of discernable age-out class members. See Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 196 (D.D.C. 2013) (“In this district, courts have found that numerosity is satisfied when a proposed class has at least forty members....”).
For these reasons, the Government’s Motion for Summary Judgment is DENIED.
SO ORDERED.
All Citations
Slip Copy, 2019 WL 7370368

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