This is a case about Immigration and Customs Enforcement's (ICE) policies for detaining immigrants after they turned 18 who had entered the U.S. as unaccompanied minors. On March 5, 2018 two individual plaintiffs filed this lawsuit in the United States District Court for the District of Columbia, where it was assigned to District Judge Rudolph Contreras. They brought suit on behalf of a class of unaccompanied alien children who had been placed in the custody of the Department of Health and Human Services' Office of Refuge Resettlement (ORR) when they arrived in the U.S. However, on their 18th birthdays, members of the plaintiff's class were transferred to ICE custody, where many of them were placed in adult detention, allegedly without consideration of alternative, less restrictive options, as required by law. The plaintiffs sued ICE, its parent agency the Department of Homeland Security, and both organizations' leaders. Represented by counsel from the National Immigrant Justice Center and private counsel, the plaintiffs sought class certification for a group of similarly situated immigrants, declarations that ICE had violated the law, injunctive orders that ICE comply in the future, and attorneys' fees.

The plaintiffs alleged that the defendants violated two sections of the Administrative Procedure Act (APA)(5 U.S.C. §§ 706(2), 701(1)) and the Trafficking Victims Protection Reauthorization Act (TVPRA). That act 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" when it receives custody of an immigrant who arrived in the U.S. as an unaccompanied minor and was placed in the custody of ORR. 8 U.S.C. § 1232(c)(2)(B). The plaintiffs alleged that ICE was systematically failing to comply with its obligations under this statute by automatically, or nearly automatically, placing these individuals in adult detention. According to the plaintiffs, ICE's failure to comply with this requirement was arbitrary and capricious, in violation of §706(2)(A) of the APA. As such, the plaintiffs requested that the court "compel agency action."

The plaintiffs also added a third named plaintiff in an amended complaint on March 30, 2018, though the allegations in that complaint were identical to the first. A year later on April 5, 2019, however, the parties stipulated to this plaintiff's voluntary dismissal from the case.

After the case was filed, the plaintiffs immediately moved for a temporary restraining order and a preliminary injunction, applying only to the two named plaintiffs. Judge Contreras denied the temporary restraining order during a hearing on March 8, 2018. However, on April 18, 2018, he issued an opinion granting a preliminary injunction ordering ICE to comply with 8 U.S.C. § 1232(c)(2)(B) in the named plaintiff's placement, effectively considering the least restrictive alternative to detention. 310 F.Supp.3d 7. As a result, ICE released the plaintiffs from custody.

On March 6, 2018, the plaintiffs filed their motion for class certification, 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)." Meanwhile, defendants moved to dismiss the complaint for lack of jurisdiction on May 7, 2018. Judge Contreras resolved both of those motions in an August 30, 2018 order. 338 F.Supp.3d 1. At the request of the plaintiffs, he certified the class. Judge Contreras also denied the defendants motion to dismiss.

After Judge Contreras' August 2018 opinion, the parties wrangled over discovery for close to a year and a half. While this was going on, the defendants filed a motion to decertify the plaintiffs' class on April 1, 2019, but eventually asked the court to hold their motion in abeyance on July 8, 2019 due to issues with ICE data that formed the motion's basis. The defendants also filed a partial motion for summary judgment on September 13, 2018. Judge Contreras denied that motion on November 7, 2019, finding that the case contained disputes of fact that would have to be litigated a trial. 2019 WL 7370368.

The case proceeded to trial. Between December 2, 2019 and January 15, 2020 Judge Contreras conducted an 18-day bench trial. On July 2, 2020, he issued findings of fact and conclusions of law in favor of the plaintiffs. 471 F.Supp.3d 88. Judge Contreras found that ICE did not comply with its statutory obligations to place immigrants who arrived in the U.S. as unaccompanied minors in the least restrictive setting available. Due to poor training and non-existent guidance from ICE headquarters, many ICE field offices detained these individuals on a nearly automatic basis (above 95% in certain field offices), and in some cases refused to release immigrants to their parents or organizations who volunteered to take care of them. Judge Contreras deferred the issue of remedy for further consideration.

After a July 21, 2020 conference, the parties began working together to select a monitor for the case and also draft training materials to help ICE employees comply with the findings. On December 16, 2020, Judge Contreras referred the case to Magistrate Judge Michael Harvey for mediation.

On September 21, 2021 the court issued a five-year permanent injunction, which requires ICE to re-train its officers, fill out new paperwork, re-vamp its training and policies with regards to age-outs, and provide monthly reports and documentation to class counsel on its rates of detention for age-outs.

This case is ongoing.

Jonah Hudson-Erdman - 02/05/2021


compress summary