Ms. L. v. U.S. Immigration and Customs Enforcement et al

Filing 46

RESPONSE in Opposition re #21 Amended MOTION for Preliminary Injunction filed by Greg Archambeault, Alex Azar, L. Francis Cissna, Pete Flores, Joseph Greene, Thomas Homan, Francis M. Jackson, Scott Lloyd, Adrian P. Macias, Hector A. Mancha Jr., Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: #1 Declaration Ortiz, #2 Declaration Banzon, #3 Proof of Service)(Bettwy, Samuel) (aef).

1 CHAD A. READLER
Acting Assistant Attorney General
2 WILLIAM C. PEACHEY
Director, Office of Immigration Litigation (OIL)
3 U.S. Department of Justice
WILLIAM C. SILVIS
4 Assistant Director, OIL District Court Section
SARAH B. FABIAN
5 Senior Litigation Counsel
NICOLE MURLEY
6 Trial Attorney
Office of Immigration Litigation
7 U.S. Department of Justice
Box 868, Ben Franklin Station
8 Washington, DC 20442
Telephone: [phone]
9 Fax: [phone]
10 ADAM L. BRAVERMAN
United States Attorney
11 SAMUEL W. BETTWY
Assistant U.S. Attorney
12 California Bar No. 94918
Office of the U.S. Attorney
13 880 Front Street, Room 6293
San Diego, CA 92101-8893
14 619-546-7125
619-546-7751 (fax)
15
Attorneys for Federal Respondents-Defendants
16
17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19
20 MS. L, et al.,
Petitioners-Plaintiffs,

21
22

Case No. 18cv428 DMS MDD

vs.

23 U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
24
Respondents-Defendants.
25

DATE: March 29, 2018
TIME: 1:30 p.m.
Hon. Dana M. Sabraw
RESPONDENTS’ RESPONSE IN
OPPOSITION TO PETITIONER Ms.
L’s MOTION FOR PRELIMINARY
INJUNCTION1

26
27

Petitioner Ms. L’s instant motion has not been amended or supplemented to include
anything that was added in the subsequently filed First Amended Complaint.
28
30

1

TABLE OF CONTENTS

1

PAGE

2
3 I.

INTRODUCTION .................................................................................................... 1

4 II.

STATEMENT OF FACTS ....................................................................................... 3
PROCEDURAL HISTORY OF THIS CASE ..................................................... 7

5
6 III.

ARGUMENT ............................................................................................................ 8

7

A.

PRELIMINARY INJUNCTION STANDARD ............................................. 8

8

B.

MS. L’s CLAIMS ARE MOOT ..................................................................... 9

9

C.

NO AUTHORITY TO ORDER RELEASE OR
TRANSFER OF MS. L ................................................................................ 10

D.

NO CONSTITUTIONAL RIGHT TO JOINT DETENTION ..................... 14

10
11

1.

MS. L IS ASKING THIS COURT TO MAKE A NEW RULE
OF CONSTITUTIONAL LAW......................................................... 14

13

2.

SUBSTANTIVE DUE PROCESS..................................................... 17

14

3.

PROCEDURAL DUE PROCESS ..................................................... 18

12

15
16
17 IV.
18
19
20
21
22
23
24
25
26
27
28
30

E.

BALANCE OF HARDSHIPS TIPS IN FAVOR OF THE
GOVERNMENT ......................................................................................... 19

CONCLUSION....................................................................................................... 19

TABLE OF AUTHORITIES

1

PAGE

2
3

CASES

4
5 Abdala v. INS,
488 F.3d 1061 (9th Cir. 2007) ........................................................................................... 9
6
Aguilar v. ICE,
7
510 F.3d 1 (1st Cir. 2007) ......................................................................................... 16, 17
8 Altagracia v. Sessions,
No. 16-cv-6647, 2017 WL 908211 (W.D.N.Y. Mar. 7, 2017) ....................................... 12
9
Ambriz v. Coca Cola Co.,
10
No. 13-CV-03539-JST, 2014 WL 296159 (N.D. Cal. Jan. 27, 2014)............................... 7
11 Amochaev v. Citigroup Glob. Markets Inc.,
No. C-05-1298 PJH, 2007 WL 484778 (N.D. Cal. Feb. 12, 2007) ................................... 7
12
Avramenkov v. I.N.S.,
13
99 F. Supp. 2d 210 (D. Conn. 2000) ............................................................................... 13
14 Blackie’s House of Beef, Inc. v. Castillo,
659 F.2d 1211 (D.C. Cir. 1981)......................................................................................... 8
15
Comm. of Cent. Am. Refugees v. INS,
16
795 F.2d 1434 (9th Cir. 1986) ......................................................................................... 13
17 County of Sacramento v. Lewis,
523 U.S. 833 (1998) ........................................................................................................ 17
18
D.B. v. Cardall,
19
826 F.3d 721 (4th Cir. 2016) ....................................................................................... 9, 18
20 Demore v. Kim,
538 U.S. 510 (2003) ........................................................................................................ 12
21
Duchesne v. Sugarman,
22
566 F.2d 817 (2d Cir. 1977) ............................................................................................ 15
23 Dukes v. Wal–Mart Stores, Inc.,
No. 1–cr–2252–MJJ, 2001 WL 1902806 (N.D. Cal. Dec. 3, 2001) ................................. 7
24
Edwards v. Johnson,
25
209 F.3d 772 (5th Cir. 2000) ........................................................................................... 16
26 Fiallo v. Bell,
430 U.S. 787 (1977) ........................................................................................................ 16
27
Gallanosa v. United States,
28
785 F.2d 116 (4th Cir. 1986) ........................................................................................... 16
30

1 Gandarillas-Zambrana,
44 F.3d ............................................................................................................................. 13
2
Garcia v. Google, Inc.,
786 F.3d 733 (9th Cir. 2015) ............................................................................................. 8
3
4 Gordon v. Mule,
153 F. App’x 39 (2d Cir. 2005) ....................................................................................... 16
5
Halet v. Wend Investment Co.,
672 F.2d 1305 (9th Cir. 1982) ......................................................................................... 15
6
7 Hansen Beverage Co. v. Innovation Ventures, LLC,
No. 08cv1166-IEG, 2009 WL 6597891 (S.D. Cal. Dec. 23, 2009) .................................. 2
8
Heartland Acad. Comm. Church v. Waddle,
427 F.3d 525 (8th Cir. 2005) ........................................................................................... 15
9
10 I.N.S. v. St. Cyr,
533 U.S. 289 (2001) ........................................................................................................ 14
11
Jackson v. City of Columbus,
194 F.3d 737 (6th Cir. 1999) ......................................................................................... 2, 4
12
13 Jennings v. Rodriguez,
No. 15-1204, 2018 WL 1054878 (U.S. Feb. 27, 2018)................................................... 12
14
Jordan v. Jackson,
15 F.3d 333 (4th Cir. 1994) ............................................................................................. 15
15
16 Kleindienst v. Mandel,
408 U.S. 753 (1972) ........................................................................................................ 10
17
Kucana v. Holder,
558 U.S. 233 (2010) ........................................................................................................ 12
18
19 Lassiter v. Dep’t of Social Servs.,
452 U.S. 18 (1981) .......................................................................................................... 15
20
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001) ........................................................................................... 15
21
22 Leiva-Perez v. Holder,
640 F.3d 962 (9th Cir. 2011) ............................................................................................. 8
23
Lyons v. Clark,
694 F. Supp. 184 (E.D. Va. 1988) ................................................................................... 17
24
25 Marsh v. Cty. of San Diego,
680 F.3d 1148 (9th Cir. 2012) ......................................................................................... 18
26
Mathews v. Diaz,
426 U.S. 67 (1976) .................................................................................................... 10, 17
27
28 Mathews v. Eldridge,
424 U.S. 319 (1976) ........................................................................................................ 19
30

Opposition to Motion for P.I.

18cv428 DMS MDD

1 Milan-Rodriguez v. Sessions,
No. 116CV01578AWISABHC, 2018 WL 400317 (E.D. Cal. Jan. 12, 2018) ................ 16
2
Milardo v. Kerilikowske,
No. 16-MC-99, 2016 WL 1305120 (D. Conn. Apr. 1, 2016) ......................................... 12
3
4 Montanye v. Haymes,
427 U.S. 236 (1976) ........................................................................................................ 17
5
Naul v. Gonzales,
No. 05-4627, 2007 WL 1217987 (D.N.J. Apr. 23, 2007) ............................................... 12
6
7 New Motor Vehicle Bd. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) .................................................................................................. 8, 19
8
Newbold v. Stansberry,
No. 1:08CV1266 (LO/JPP), 2009 WL 86740 (E.D. Va. Jan. 12, 2009) ......................... 17
9
10 Nken v. Holder,
556 U.S. 418 (2009) .......................................................................................................... 8
11
Oceanic Navigation Co. v. Stranahan,
214 U.S. 320 (1909) ........................................................................................................ 10
12
13 Olim v. Wakinekona,
461 U.S. 238 (1983) ........................................................................................................ 17
14
Overton v. Bazzetta,
539 U.S. 126 (2003) ........................................................................................................ 15
15
16 Reno v. Flores,
507 U.S. 292 (1993) ........................................................................................................ 18
17
Rios-Berrios v. INS,
776 F.2d 859 (9th Cir. 1985) ........................................................................................... 13
18
19 Rumsfeld v. Padilla,
542 U.S. 426 (2004) .......................................................................................................... 7
20
Santos v. Smith,
260 F. Supp. 3d 598 (W.D. Va. 2017)............................................................................... 2
21
22 Santosky v. Kramer,
455 U.S. 745 (1982) ........................................................................................................ 15
23
Saravia v. Sessions,
280 F. Supp. 3d 1168 (N.D. Cal. 2017)............................................................................. 7
24
25 Sasso v. Milhollan,
735 F. Supp. 1045 (S.D. Fla. 1990) ................................................................................. 13
26
Southerland v. City of New York,
680 F.3d 127 (2d Cir. 2012) ............................................................................................ 15
27
28 Spencer Enters., Inc. v. United States,
345 F.3d 683 (9th Cir. 2003) ........................................................................................... 12
30

Opposition to Motion for P.I.

18cv428 DMS MDD

1 Spencer v. Kemna,
523 U.S. 1 (1998) .............................................................................................................. 9
2
Troxel v. Granville,
530 U.S. 57 (2000) .......................................................................................................... 15
3
4 United Farm Workers v. Ariz. Agric. Employment Relations Bd.,
669 F.2d 1249 (9th Cir.1982) .......................................................................................... 14
5
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) .......................................................................................................... 8
6
7 United States v. Bush,
No. CR 12-92, 2015 WL 7444640 (W.D. Pa. Nov. 23, 2015) ........................................ 12
8
United States v. Loy,
237 F.3d 251 (3d Cir. 2001) ............................................................................................ 15
9
10 United States v. Wolf Child,
699 F.3d 1082 (9th Cir. 2012) ......................................................................................... 15
11
Van Dinh v. Reno,
197 F.3d 427 (10th Cir. 1999) ......................................................................................... 13
12
13 Washington v. Glucksberg,
521 U.S. 702 (1997) ........................................................................................................ 18
14
Wayte v. United States,
470 U.S. 598 (1985) .......................................................................................................... 8
15
16 Webster v. Doe,
486 U.S. 592 (1988) ........................................................................................................ 14
17
White v. Pazin, No.,
112CV00917BAMPC, 2016 WL 6124234 (E.D. Cal. Oct. 19, 2016) ............................ 17
18
19 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .............................................................................................................. 8
20
Wood v. United States,
175 F. App’x 419 (2d Cir. 2006) ..................................................................................... 13
21
22 Zadvydas v. Davis,
533 U.S. 678 (2001) .................................................................................................. 10, 14
23
24
25
26
27
28
30

Opposition to Motion for P.I.

18cv428 DMS MDD

1 Statutes
2 5 U.S.C. § 701(a)(2) ............................................................................................................ 14
5 U.S.C. § 704 ..................................................................................................................... 14
3 5 U.S.C. § 706 ..................................................................................................................... 13
6 U.S.C. § 279(g)(2).............................................................................................................. 5
4 8 U.S.C. § 1103(a)(1) .......................................................................................................... 10
8 U.S.C. § 1182(d)(5)(A) .............................................................................................. 11, 12
5 8 U.S.C. § 1225 ................................................................................................................... 11
8 U.S.C. § 1225(b) .............................................................................................................. 12
6 8 U.S.C. § 1225(b)(1)(B) ...................................................................................................... 5
8 U.S.C. § 1229a ................................................................................................................... 5
7 8 U.S.C. § 1231 ............................................................................................................. 11, 12
8 U.S.C. § 1231(g)(1).................................................................................................... 12, 13
8 8 U.S.C. § 1232(b)(3)............................................................................................................ 5
8 U.S.C. § 1232(c)(2)(A) ...................................................................................................... 5
9 8 U.S.C. § 1232(c)(3)(A) .................................................................................................. 2, 7
8 U.S.C. § 1252(c) .............................................................................................................. 13
10 28 U.S.C. § 1391 ................................................................................................................... 7
28 U.S.C. § 1404 ................................................................................................................... 8
11
Regulations
12
13 6 C.F.R. § 115.114(a).......................................................................................................... 11
6 C.F.R. § 115.114(b) ......................................................................................................... 11
14 6 C.F.R. § 115.14 ................................................................................................................ 11
6 C.F.R. § 115.14(a)............................................................................................................ 11
15 8 C.F.R. § 208.30(f) .............................................................................................................. 5
8 C.F.R. § 1241.1(b) ............................................................................................................. 6
16 8 C.F.R. § 208.30 .................................................................................................................. 5
17 Other Authorities
18 Pub. L. 104-208 ................................................................................................................... 13
19
20
21
22
23
24
25
26
27
28
30

Opposition to Motion for P.I.

18cv428 DMS MDD

1

I

2

INTRODUCTION

3

Petitioner Ms. L seeks a preliminary injunction, asking this Court to order that “she

4 and her daughter [S.S.] be released so they can be reunited in a non-governmental shelter,
5 or alternatively, that they be detained together in a government family detention center.”
6 Doc. 21-1 at 22:1-3.] There is nothing to enjoin, however, because Immigration and
7 Customs Enforcement (“ICE”)2 has released Ms. L from immigration detention, and the
8 Office of Refugee Resettlement (“ORR”)3 is expeditiously reviewing the suitability of
9 S.S.’s placement with Ms. L.4 S.S. is not a party, and even if she were, this Court should
10 reject any argument that ORR should be ordered to release S.S. before ORR has made its
11 determination. Ms. L’s instant motion is therefore moot.
12

Apart from mootness, if this Court were to reach the factors for considering a motion

13 for preliminary injunction, Ms. L is not likely to succeed in this case, and the balance of
14 hardships weighs heavily in the government’s and public’s interests to protect the safety
15 and welfare of children from exploitation by smugglers and human traffickers. See infra
16 note 8. This Court lacks authority to review ICE’s decisions on where to detain aliens in
17 removal proceedings, and there is no constitutional right of detained aliens to be detained
18 with their children. Even U.S. citizens in pretrial detention do not have such a right.
19 Furthermore, there is nothing about this case that “shocks the conscience.”
20

This case is about actions taken by the San Diego Family Unit of ICE’s Enforcement

21 and Removal Operations (“ERO”) to ensure the welfare of S.S. Ms. L presented at the
22 border without any identification documents. The Family Unit questioned the relationship
23 between Ms. L and S.S. in November 2017 and placed S.S. with ORR out of concern for
24 her welfare. ORR now has a duty to make “a determination that the proposed custodian is
25
ICE is a sub-agency of the Department of Homeland Security (“DHS”).
ORR is a sub-agency of the U.S. Department of Health and Human Services
(“HHS”).
27
4
The undersigned is informed that Ms. L submitted a family reunification packet to
ORR yesterday and that ORR is awaiting required recommendations and hopes to have a
28 release decision and actual release very soon.
26

30

2
3

Opposition to Motion for P.I.

1

18cv428 DMS MDD

1 capable of providing for the child’s physical and mental well-being.” 8 U.S.C. §
2 1232(c)(3)(A). See Santos v. Smith, 260 F. Supp. 3d 598, 605 (W.D. Va. 2017) (Pursuant to
3 the Flores agreement and the [Trafficking Victims Protection Reauthorization Act
4 (“TVPRA”)], ORR should release to a parent, if available, but only if ORR determines “that
5 the proposed custodian is capable of providing for the child’s physical and mental well6 being.”).
7

Under its guidelines, ORR determines whether there is a suitable sponsor for all

8 children in their care so that children may be released as quickly as is safe and appropriate.
9 Office of Refugee Resettlement, ORR Policy Guide: Children Entering the United States
10 Unaccompanied

(“ORR

Guide”)

§

2.2,

available

at

11 http://www.acf.hhs.gov/orr/resource/childrenentering-the-united-states-unaccompanied.5
12 ORR is obligated to assess “whether the potential sponsor is a suitable sponsor who can
13 safely provide for the physical and mental well-being of the child or youth,” ORR Guide §
14 2.3.2, and Ms. L must exhaust that administrative process, which provides for a hearing if
15 there is a denial. See 8 U.S.C. § 1232(c)(3)(A); ORR Guide § 2.7.8.
16

Ms. L’s counsel speculates that ICE has a family separation policy, but as the current

17 manager of the San Diego ICE/ERO Family Unit states in his accompanying Declaration, a
18 decision to place a child with ORR is based on two primary considerations: whether there
19 are doubts about the claimed parent-child relationship and whether there are circumstances
20 causing concern about the welfare of the child. [Ortiz Declaration, paras. 2-3.] Based on the
21 information available in a specific case, if there are not concerns about the family
22 relationship or welfare of the child, the parent and child may be detained at an ICE Family
23 Residential Center6 or, if appropriate, released to a sponsor or non-governmental
24

5

Courts may take judicial notice of websites run by governmental agencies. See,
25 e.g., Hansen Beverage Co. v. Innovation Ventures, LLC, No. 08cv1166-IEG, 2009 WL
6597891, at *1 (S.D. Cal. Dec. 23, 2009) (citing Jackson v. City of Columbus, 194 F.3d 737,
26 745 (6th Cir. 1999)).
6
ICE’s two Family Residential Centers for female detainees and their children are
27 located in the Western District of Texas. See ICE, South Texas Family Residential Center,
https://www.ice.gov/detention-facility/south-texas-family-residential-center; ICE, Karnes
28 County Residential Center, https://www.ice.gov/detention-facility/karnes-county30

Opposition to Motion for P.I.

2

18cv428 DMS MDD

1 organization. If there are concerns, the child may be transferred to ORR for care and
2 placement consideration. [Id.] ICE has no family separation policy for ulterior law
3 enforcement purposes, and considers each case on the facts available at the time a placement
4 decision must be made. In addition, such a policy would be antithetical to the child welfare
5 values of ORR, which is not a law enforcement agency. See ORR, Unaccompanied Alien
6 Children, https://www.acf.hhs.gov/orr/programs/ucs.
7

Ms. L’s request for an injunction should therefore be denied, because there is nothing

8 to enjoin: She has been released from ICE detention, and S.S. is not a party. Even if she
9 were, ORR is still making a determination whether Ms. L is a suitable sponsor. Apart from
10 mootness, Ms. L is not likely to succeed on the merits of this case, and the balance of
11 hardships tips sharply in favor of governmental and public concern for S.S.’s safety and
12 welfare.
13

II

14

STATEMENT OF FACTS

15

Ms. L appears to have a nexus with both Angola and the Democratic Republic of

16 Congo (DRC). Available documentation shows that S.S. was in kindergarten in the DRC
17 during the 2013-2014 school year and that she is the daughter of Ms. “B.M.” and a Mr.
18 “F.S.” [ECF Doc. 31-1 at 96 (school photo ID)], that Ms. L (as Ms. “B.M.P.”) was issued
19 an Angola passport on June 4, 2015, in Luanda, Angola, and that she (as Ms. “B.M.P.”),
20 S.S. (as “S.P.S.),” and a Mr. “A.S.” applied to the U.S. consulate in Angola for
21 nonimmigrant visas to the United States in January 2016, with the stated purpose of visiting
22 New York City as tourists for fifteen days. [Exs. 2-3.]7 The visa was refused, and the U.S.
23 consular official noted: “Family makeup is questionable at best, father is not credible at all.”
24 [Ex. 7.]
25
26
27 residential-center.
See
also
ICE,
Berks
Family
Residential
Center,
https://www.ice.gov/detention-facility/berks-family-residential-center (for male detainees).
7
28
By separate ex parte motion, Respondents are requesting that the exhibits be
received and filed as a restricted document to protect the privacy of Ms. L and her daughter.
30

Opposition to Motion for P.I.

3

18cv428 DMS MDD

During her trip en route to the United States last year, Ms. L was detained in Panama

1

2 in September 2017 at which time she used the alias Ms. “B.N.” and was detained in
3 Guatemala in October 2017 at which time she used her current name. [Ortiz Declaration,
4 paras. 5.e. & 5.f.] On October 24, 2017, the Mexican government issued her and S.S. exit
5 visas [id., para. 5.g.], and they headed north to the U.S. border. She states that she and S.S.
6 made the trip with the aid of a smuggler.8 [Ex. 12.]
The whereabouts of Mr. F.S. and Mr. A.S. are unknown. [ECF Doc. 31-1 at 96; Ex.

7
8 3.]

Ms. L’s current removal proceedings began on November 1, 2017, when she and S.S.

9

10 applied for admission to the United States at the San Ysidro, California port of entry. [ECF
11 Doc. 13-1 at 9.]9 Ms. L stated that she had a fear of returning to the Congo due to the civil
12 war there. Id. Ms. L had no identity documents other than the Mexican exit visa issued to
13 her, and she claimed that her identity documentation had been lost during her travel to the
14 United States. [Ex. 12; Ortiz Declaration, para. 5.g.]
On November 2, 2017, Ms. L was interviewed in the Lingala language, through an

15

16 interpreter, by a CBP officer.10 [Exs. 9-16 (sworn statement of Ms. L).]
17 ///
18 ///
19 ///
20
21
22
23
24
25
26
27
28
30

8

See UNICEF, A Child is a Child: Protecting children on the move from violence,
abuse
and
exploitation,
available
at
https://www.unicef.org/publications/files/UNICEF_A_child_is_a_child_May_2017_EN.p
df (last visited Mar. 1, 2018) (noting “the risks faced by children moving across
international borders – with their families or on their own – especially when they engage
smugglers to facilitate their movement” and that children are “easy prey for traffickers and
others 9who abuse and exploit children.”) (emphasis added).
Page numbers correspond to ECF-generated page numbering.
10
Ms. L alleges that she had to communicate with “border guards” in broken Spanish
before seeing a USCIS asylum officer when in fact she was interviewed by a CBP officer
in the Lingala language through an interpreter. [ECF Doc. 21-1 at 9; Ex. 9.] Ms. L was not
forthcoming with the CBP Officer about the fact that she had used aliases and that she had
previously applied for a U.S. visa.
Opposition to Motion for P.I.

4

18cv428 DMS MDD

1

Because Ms. L presented no documents that might entitle her to admission to the

2 United States, she was placed in expedited removal proceedings pursuant to 8 U.S.C. §§
3 1182(a)(7)(A)(i)(I) and 1225(b)(1)(A)(i). [Exs. 17-19.] She expressed a fear of returning to
4 the DRC, so she was referred to an asylum officer of the U.S. Citizenship and Immigration
5 Services (“USCIS”) for a credible fear interview. [Ex. 20]11
6

Within a few days, Ms. L and S.S. were transferred to ICE custody for detention

7 during the credible fear determination process. [ECF Doc. 13-1 at 9.] Because Ms. L
8 claimed to be S.S.’s mother, the matter was referred to ICE/ERO’s local Family Unit which
9 decided to transfer S.S. to the care and custody of ORR, in accordance with the TVPRA.
10 See 8 U.S.C. § 1232(b)(3); 6 U.S.C. § 279(g)(2) (definition of unaccompanied alien child).
11

Based upon the referral from ICE/ERO, ORR acted according to its statutory

12 obligation to place S.S. with a provider with available space that could provide her with
13 care and custody in the least restrictive setting available and that could take into account her
14 child welfare needs. [See Declaration of Julissa Portales Banzon (“Banzon Declaration”),
15 paras. 5 & 6.] See 8 U.S.C. § 1232(c)(2)(A). When ORR sought placement for S.S., the
16 available care provider that met those criteria was located in Chicago, Illinois. [Banzon
17 Declaration, para. 6.]
18

On November 17, 2017, a USCIS asylum officer conducted a credible fear interview

19 through a Lingala interpreter. [Ex. 20.] The asylum officer determined that Ms. L had met
20 the credible fear threshold to have her asylum application heard by an Immigration Judge
21 (“IJ”). [Id.]
22

On November 30, 2017, Ms. L was served with a Notice to Appear before an IJ. [Exs.

23 21-23.]
24
25
26

11

If a USCIS asylum officer interviews an arriving alien in expedited removal
27 proceedings and determines that he or she has a credible fear of persecution or torture, the
individual may seek asylum or other protection from removal before an IJ. See 8 U.S.C. §
28 1225(b)(1)(B); 8 C.F.R. §§ 208.30, 235.3(b)(4). The arriving alien is afforded a hearing
before an IJ pursuant to 8 U.S.C. § 1229a. See 8 C.F.R. § 208.30(f).
30

Opposition to Motion for P.I.

5

18cv428 DMS MDD

1

On December 19, 2017, Ms. L appeared, unrepresented, before Immigration Judge

2 Halliday-Roberts and was granted a continuance until January 26, 2018, to seek legal
3 representation. [Ex. 25.] The hearing was conducted through a Lingala interpreter. [Ex. 24.]
4

On January 26, 2018, Ms. L appeared again, unrepresented, before Judge Halliday-

5 Roberts, stating her desire to continue without an attorney. [Ex. 26.] The hearing was
6 conducted through an interpreter in a combination of Lingala and French.12 When asked
7 what country she wanted to designate for her removal and repatriation, Ms. L selected
8 Angola. [Exs. 26-27, 28, 30.]
9

The IJ ordered that Ms. L be removed from the United States to Angola or, in the

10 alternative, to the DRC. [Exs. 28, 31.] Ms. L waived appeal, so the IJ’s removal order
11 became immediately final. See 8 C.F.R. § 1241.1(b).
12

Pending removal efforts, Ms. L was (until March 6, 2018) detained by ICE/ERO. Her

13 daughter continues to be in the care and custody of an ORR care provider pending her
14 placement with an appropriate sponsor. [See Banzon Declaration, para. 9.]
15

On February 12, 2018, Ms. L retained immigration counsel Ms. Elizabeth Lopez.

16 [ECF Doc. 13-1 at 90.]
17

On February 28, 2018, two days after Ms. L commenced this case, Ms. Lopez filed a

18 motion to reconsider Ms. L’s removal order with the Immigration Court. [Exs. 33-47.]13
19 The motion to reconsider remains pending.
20

On March 5, 2018, Ms. Lopez submitted a request to ICE to stay Ms. L’s removal

21 given her pending “Motion to Reconsider and possible Motion to Reopen or Appeal to
22 [Board of Immigration Appeals].” [Exs. 48-49.]
23

On March 6, 2018, ICE granted the request for stay of removal. [Id.]

24
25

12

French is the official language of the DRC. CIA, Africa: Republic of the Congo,
The
World
Factbook,
https://www.cia.gov/library/publications/the-world26 factbook/geos/cf.html (last visited Mar. 9, 2018).
13
Ms. L’s motion for preliminary injunction includes the March 1, 2018 declaration
27 of her immigration counsel Ms. Lopez who provides some information about the removal
proceedings, but does not mention that Ms. L was subject to the January 26, 2018 final order
28 of removal or that, on February 28, 2018, she had filed a motion to reconsider the removal
order. [ECF Doc. 21-1 at 90-92.]
30

Opposition to Motion for P.I.

6

18cv428 DMS MDD

1

That same day, ICE released Ms. L from detention.

2

ORR immediately took steps to verify whether Ms. L and S.S. are mother and

3 daughter by conducting a DNA test, and the March 12, 2018 results showed that they are.
4 [ECF Doc. 44.] ORR will place S.S. with Ms. L if and when it makes “a determination that
5 the proposed custodian is capable of providing for the child’s physical and mental well6 being.” 8 U.S.C. § 1232(c)(3)(A). See also ORR Guide §§ 2.2, 2.7.8.
7

PROCEDURAL HISTORY OF THIS CASE

8

On February 26, 2018, Ms. L commenced this case by filing a combined habeas

9 petition and complaint. [ECF Doc. 1.] She challenges the decision of the San Diego
10 ICE/ERO Family Unit to place her daughter S.S. in the care and custody of ORR, and she
11 seeks both declaratory and injunctive relief. [Id.] S.S. is not a party to this case.
12

On March 2, 2018, Ms. L filed a motion for a preliminary injunction [ECF Doc. 13

13 (amended on Mar. 3, 2018, see ECF Doc. 21)], asking this Court to order that “she and her
14 daughter be released so they can be reunited in a non-governmental shelter, or alternatively,
15 that they be detained together in a government family detention center.” [ECF Doc. 13-1 at
16 22; ECF Doc. 21-1 at 22 (emphasis in original).]14
17

On March 9, 2018, Petitioners filed an amended petition/complaint, adding Ms. C

18 and seeking class certification.15 The instant motion has not been amended to include
19 anything that was added in the amended petition/complaint.
20

14

In both her petition/complaint and in her instant motion, Ms. L failed to inform this
21 Court that she was under a final order of removal at the time.
15
Ms. C should be dismissed from the case due to improper venue. She does not
22 allege proper venue in the amended petition-complaint. [ECF Doc. 32, para. 9.] Indeed, all
of the events that give rise to her claim occurred in Texas, none of the defendants relating
23 to her claim reside in this judicial district, and her custodian is in Texas. See 28 U.S.C. §
1391; Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“The plain language of the habeas
24 statute thus confirms the general rule that for core habeas petitions challenging present
physical confinement, jurisdiction lies in only one district: the district of confinement.”).
25 “[I]n most instances, the rule in a proposed class action is that each named plaintiff must
independently establish venue.” Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017)
26 (citing Ambriz v. Coca Cola Co., No. 13-CV-03539-JST, 2014 WL 296159, at *5 (N.D.
Cal. Jan. 27, 2014) (citing Dukes v. Wal–Mart Stores, Inc., No. 1–cr–2252–MJJ, 2001 WL
27 1902806 (N.D. Cal. Dec. 3, 2001) for the proposition that “the general rule [is] that each
plaintiff in a class action must individually satisfy venue”); Amochaev v. Citigroup Glob.
28 Markets Inc., No. C-05-1298 PJH, 2007 WL 484778, at *1 (N.D. Cal. Feb. 12, 2007)). Ms.
30

Opposition to Motion for P.I.

7

18cv428 DMS MDD

1

III

2

ARGUMENT
A. PRELIMINARY INJUNCTION STANDARD

3

Ms. L seeks a preliminary injunction. [ECF Doc. 13.] The movant must “establish

4

5 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
6 absence of preliminary relief, that the balance of equities tips in his favor, and that an
7 injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
8 (2008). Nken v. Holder, 556 U.S. 418, 426 (2009). Ms. L must demonstrate a “substantial
9 case for relief on the merits.” Leiva-Perez v. Holder, 640 F.3d 962, 967-68 (9th Cir. 2011).
10 When “a plaintiff has failed to show the likelihood of success on the merits, we need not
11 consider the remaining three [factors].”) Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.
12 2015).
The final two factors required for preliminary injunctive relief—balancing of the

13

14 harm to the opposing party and the public interest—merge when the Government is the
15 opposing party. See Nken v. Holder, 556 U.S. at 435. The Supreme Court has specifically
16 acknowledged that “[f]ew interests can be more compelling than a nation’s need to ensure
17 its own security.” Wayte v. United States, 470 U.S. 598, 611 (1985). See also United States
18 v. Brignoni-Ponce, 422 U.S. 873, 878-79 (1975); New Motor Vehicle Bd. v. Orrin W. Fox
19 Co., 434 U.S. 1345, 1351 (1977); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211,
20 1220-21 (D.C. Cir. 1981).
As explained below, Ms. L’s claims are moot, and she is not likely to succeed on the

21

22 merits. In addition, any potential hardship that separation might cause to a parent and child
23 is heavily outweighed by public and governmental interests in ensuring the safety and
24 welfare of the child.
25 ///
26 ///
27
28 C’s claim should be dismissed for improper venue or transferred to an appropriate venue
such as the Western District of Texas. See 28 U.S.C. § 1404.
30

Opposition to Motion for P.I.

8

18cv428 DMS MDD

1

B. MS. L’s CLAIMS ARE MOOT

2

Although Ms. L is under a final order of removal, she has been released from

3 detention pending her motion to reconsider her removal order. The instant motion, which
4 asks this Court to order her release from detention, is therefore moot. See Abdala v. INS,
5 488 F.3d 1061, 1063 (9th Cir. 2007) (“At any stage of the proceeding a case becomes moot
6 when ‘it no longer present[s] a case or controversy under Article III, § 2 of the
7 Constitution.’”) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
Ms. L’s request that she be detained with S.S. in an ICE Family Residential Center is

8

9 moot for the same reason and because there is no authority for a court to order that an alien
10 be placed in ICE detention in the context of removal proceedings. Furthermore, there is no
11 basis for judicial intervention in ORR’s process of determining a suitable sponsor for S.S.
12 To begin with, S.S. is not a party, and even if she were, such determinations are
13 administratively reviewable, including a hearing process. See ORR Guide 2.7.8 (Appeal of
14 Release Denial); D.B. v. Cardall, 826 F.3d 721, 741 (4th Cir. 2016) (ORR’s “determination
15 suffices to address any substantive due process concerns, and it renders inapposite those
16 decisions involving challenges to state interference with control of children by fit parents.”).
Apart from the mootness of Ms. L’s case, there can be no serious question that this

17

18 Court lacks authority to review ICE/ERO’s decisions where to detain arriving aliens
19 pending their removal proceedings, and as discussed below, there can be no serious question
20 that arriving aliens in expedited removal proceedings, especially those who are subject to
21 final orders of removal, have no constitutional right to be detained with their children.
22 ///
23 ///
24 ///
25
26
27
28
30

Opposition to Motion for P.I.

9

18cv428 DMS MDD

1

C. NO AUTHORITY TO ORDER RELEASE OR TRANSFER OF MS. L

2

Ms. L asks this Court to issue a preliminary injunction, requiring her child’s release

3 from ORR custody and her release from ICE detention or her child’s release from ORR
4 custody and detention of both of them at one of ICE’s Family Residential Centers, which is
5 the relief she ultimately seeks in this case. [ECF Doc. 13-1 at 22; ECF Doc. 32 at 14.] Apart
6 from mootness, there is no legal basis for granting such relief. Authority to order release
7 from detention is limited to circumstances in which detention has become unconstitutionally
8 prolonged. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (holding that “indefinite
9 detention of an alien...raise[s] a serious constitutional problem” and could violate the Due
10 Process Clause of the Fifth Amendment). Ms. L is therefore asking this Court to make new
11 law.
ICE has broad discretion, delegated by Congress, to manage to the detention of

12

13 arriving aliens. Congress also enjoys a “plenary power” to exercise its discretion to create
14 “rules for the admission of aliens and to exclude those who possess those characteristics
15 which Congress has forbidden.” Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (internal
16 quotation marks omitted). This authority is so extensive that the Court has considered it
17 among the most comprehensive of any of the powers that Congress exercises. See id.
18 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). In exercising
19 that power, Congress even enjoys broad authority to establish “rules that would be
20 unacceptable if applied to citizens” and can make distinctions both between aliens and
21 citizens and among different categories of aliens. Mathews v. Diaz, 426 U.S. 67, 79-80
22 (1976). Additionally, Congress conveyed to the Secretary of Homeland Security broad
23 general powers over the administration and enforcement of the INA and the specific power
24 to “establish such regulations; prescribe such forms of bond, reports, entries, and other
25 papers; issue such instructions; and perform such other acts as he deems necessary for
26 carrying out his authority under the provisions of this chapter.” 8 U.S.C. § 1103(a)(1),
27 (a)(3).
28 ///
30

Opposition to Motion for P.I.

10

18cv428 DMS MDD

1

The Department of Homeland Security’s (“DHS’s”) regulations provide additional

2 protections to minors by requiring that they must generally be detained “in the least
3 restrictive setting appropriate to the juvenile’s age and special needs . . . .” 6 C.F.R. §
4 115.14(a) (establishing regulations for ICE immigration detention facilities); 6 C.F.R. §
5 115.114(a) (establishing regulations for CBP short-term holding facilities). These
6 regulations permit minors to be held with adult family members in certain cases, but they
7 do not require minors to be held with adult family members, particularly where the agency
8 has insufficient information to make a family relationship determination. See, e.g., 6 C.F.R.
9 § 115.14 (separating adult family members from the general prohibition on holding
10 juveniles with adults, but recognizing that the agency shall “seek to obtain reliable evidence
11 of a family relationship”); 6 C.F.R. § 115.114(b) (permitting unaccompanied minors to
12 remain with non-parental adult family members in certain cases).
13

Additionally, Congress has mandated the detention of aliens who are in expedited

14 removal proceedings, pending their asylum claims. See 8 U.S.C. § 1225(b)(1)(B)(ii) (“shall
15 be detained for further consideration of the application for asylum.”). Arriving aliens subject
16 to mandatory detention during the expedited removal/credible fear process are eligible for
17 release only if they are granted parole under the limited criteria of 8 U.S.C. § 1182(d)(5)(A)
18 (DHS may, in its “discretion parole into the United States temporarily under such conditions
19 as [the Secretary] may prescribe only on a case-by-case basis for urgent humanitarian
20 reasons or significant public benefit any alien applying for admission to the United States .
21 . . .”).16 The Supreme Court recently explained that there is no judicial review of ICE’s
22 custody decisions regarding arriving aliens:
23
24

As we have previously explained, § 1226(e) precludes an alien from
“challeng[ing] a ‘discretionary judgment’ by the Attorney General or a
‘decision’ that the Attorney General has made regarding his detention or
release.”

25
26

16

As mentioned above, Ms. L brought this case when she was already under a final
27 order of removal which means that ICE was detaining her pursuant to 8 U.S.C. § 1231, and
no longer pursuant to 8 U.S.C. § 1225, Ms. L was still detained pursuant to section 1231
28 when ICE exercised its non-reviewable authority to stay her removal and release her from
detention.
30

Opposition to Motion for P.I.

11

18cv428 DMS MDD

1 Jennings v. Rodriguez, No. 15-1204, 2018 WL 1054878, at *9 (U.S. Feb. 27, 2018) (quoting
2 Demore v. Kim, 538 U.S. 510, 516 (2003). The Supreme Court has also clarified that a
3 decision unambiguously “specified by statute ‘to be in the discretion of the
4 [Government]’”—as in the decision whether to parole an alien pursuant to 8 U.S.C. §
5 1182(d)(5)(A)—is “shielded from court oversight by § 1252(a)(2)(B)(ii).” Kucana v.
6 Holder, 558 U.S. 233, 248 (2010).
7

Ms. L does not dispute the lawfulness of her detention by ICE, nor can she. As

8 described above, she is an arriving alien who was subject to mandatory detention under 8
9 U.S.C. § 1225(b) before her removal order became final, and subject to 8 U.S.C. § 1231
10 after it became final. There can be no serious question concerning the constitutionality and
11 the non-reviewability of ICE’s decision not to parole her under section 1225(b) detention
12 authority or to release her under section 1231 detention authority. See Altagracia v.
13 Sessions, No. 16-cv-6647, 2017 WL 908211, *2 (W.D.N.Y. Mar. 7, 2017) (Wolford, J.)
14 (“the [Government’s] decision regarding humanitarian parole is generally non15 reviewable”); Milardo v. Kerilikowske, No. 16-MC-99, 2016 WL 1305120, *6, 9 (D. Conn.
16 Apr. 1, 2016) (ICE’s discretionary parole decisions are “generally not subject to judicial
17 review, and [are] never subject to judicial review by a district court”); United States v. Bush,
18 No. CR 12-92, 2015 WL 7444640, at *1 (W.D. Pa. Nov. 23, 2015) (finding that
19 1252(a)(2)(B)(ii) “explicitly denies courts the jurisdiction to review” parole decisions,
20 “except insofar as those claims raise constitutional issues, then only the appropriate court
21 of appeals shall hear the case”); Naul v. Gonzales, No. 05-4627, 2007 WL 1217987, at *222 *3 (D.N.J. Apr. 23, 2007) (parole denial pursuant to § 1182(d)(5)(A) “is a discretionary
23 decision outside this Court’s review”).
24

In the alternative, Ms. L asks this Court to order that she be detained, with her

25 daughter, in an ICE Family Residential Center. Apart from mootness (since neither of them
26 are currently detained by ICE), DHS has non-reviewable discretionary authority to “arrange
27 for appropriate places of detention for aliens detained pending removal or a decision on
28 removal.” 8 U.S.C. § 1231(g)(1). See 8 U.S.C. § 1252(a)(2)(B)(ii); Spencer Enters., Inc. v.
30

Opposition to Motion for P.I.

12

18cv428 DMS MDD

1 United States, 345 F.3d 683, 691 (9th Cir. 2003) (“Under § 1252(a)(2)(B)(ii), . . . if the
2 statute specifies that the decision is wholly discretionary, regulations or agency practice will
3 not make the decision reviewable.”); Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434,
4 1440 (9th Cir. 1986) (holding that Executive “has the authority, conferred by statute, to
5 choose the location for detention and to transfer aliens to that location”), as amended, 807
6 F.2d 769 (1987); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) (“We are not saying
7 that the petitioner should not have been transported to Florida. That is within the province
8 of the Attorney General to decide.”). See also Gandarillas-Zambrana, 44 F.3d at 1256;
9 Wood v. United States, 175 F. App’x 419, 420 (2d Cir. 2006) (holding that Executive “in
10 the exercise of his statutory discretion in light of the available facilities, determined to hold
11 Wood in an Arizona detention center. The Attorney General was not required to detain
12 Wood in a particular state”); Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (holding
13 that “Attorney General’s discretionary power to transfer aliens from one locale to another,
14 as she deems appropriate, arises from” statute); Avramenkov v. I.N.S., 99 F. Supp. 2d 210,
15 213–15 (D. Conn. 2000) (holding that due to discretionary review bar of 8 U.S.C. §
16 1252(a)(2)(B)(ii) “the court lacks jurisdiction to prevent the INS from transferring the
17 Petitioner to a federal detention facility in Oakdale, Louisiana.”); Sasso v. Milhollan, 735
18 F. Supp. 1045, 1046 (S.D. Fla. 1990) (holding that the Attorney General has discretion over
19 the location of detention).17
20

Ms. L contends that she is likely to succeed on her Administrative Procedure Act

21 (“APA”) claim. [ECF Doc. 13-1 at 16-17.] Her claim is that the “separation of [her from
22 S.S.] without a legitimate justification is arbitrary and capricious and accordingly violates
23 the APA. 5 U.S.C. § 706.” [ECF Doc. 32, para. 82.] APA review is precluded, because
24
25

17

Although Gandarillas-Zambrana and Committee of Central American Refugees
referred to the statutory authority for the Executive to decide on the location of immigration
26 detention as arising from 8 U.S.C. § 1252(c), that statutory authority has been transferred
to 8 U.S.C. § 1231(g)(1), the statute cited by Wood. See Wood, 175 F. App’x at 420; Pub.
27 L. 104-208, Div. C, Title III, §§ 305(a)(3), 110 Stat. 3009 (1996); compare also 8 U.S.C. §
1252(c) (1994) with 8 U.S.C. § 1231(g)(1). This technical statutory modification has no
28 bearing on the issues here, or the applicability of the above-cited authority to the instant
claims.
30

Opposition to Motion for P.I.

13

18cv428 DMS MDD

1 decisions regarding detention procedures are “committed to agency discretion by law” 5
2 U.S.C. § 701(a)(2); see Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988).
3

To the extent Ms. L requests this Court to stay her removal due to any alleged APA

4 violations, the APA does not apply to post-order custody issues in removal proceedings.
5 See Zadvydas v. Davis, 533 U.S. at 687 (“These [1952 and 1961] statutory changes left
6 habeas untouched as the basic method for obtaining review of continued custody after a
7 deportation order had become final.”); I.N.S. v. St. Cyr, 533 U.S. 289, 309 n.32 (2001) (“the
8 focus of the 1961 amendments appears to have been the elimination of Administrative
9 Procedure Act (APA) suits that were brought in the district court and that sought declaratory
10 relief [to challenge final orders of deportation].”).
11

In addition, the APA allows judicial review only if the challenged activity is a “final

12 agency action for which there is no other adequate remedy.” See 5 U.S.C. § 704. The
13 purpose of the rule is to avoid premature judicial intervention. See United Farm Workers v.
14 Ariz. Agric. Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir.1982). There is no
15 final action by ICE to review regarding Ms. L: She has been released from detention
16 following ICE’s grant of her request for a discretionary stay. Regarding her claims about
17 S.S.’s placement, apart from the fact that S.S. is not a party, ORR has not reached a final
18 placement determination. Furthermore, ORR’s determination will be administratively
19 reviewable, including a right to a hearing. See ORR Guide § 2.7.8.
20

Accordingly, in addition to mootness, this Court lacks the authority to order ICE to

21 transfer Ms. L (or her daughter who is not a party) to an ICE Family Residential Center, and
22 therefore Ms. L is not likely to succeed in obtaining this requested relief.
23

D. NO CONSTITUTIONAL RIGHT TO JOINT DETENTION

24

1. Ms. L is asking this Court to make a new rule of constitutional law.

25

Ms. L also cannot succeed on the merits of her constitutional claim. She asks this

26 Court to recognize a constitutional right of immigration detainees to be detained with their
27 children. Ms. L has defined this right far too broadly, because the extent of any right that
28 parents may have in terms of a relationship with their children (or vice versa) necessarily
30

Opposition to Motion for P.I.

14

18cv428 DMS MDD

1 depends on the circumstances of a particular case. See, e.g., Overton v. Bazzetta, 539 U.S.
2 126, 131 (2003) (recognizing that rights of familial association apply differently when an
3 individual is imprisoned).
She cites a number of cases in support of her argument, but none of them concern

4

5 persons detained, let alone aliens detained pending removal proceedings, arriving aliens in
6 expedited removal proceedings, or those like Ms. L who are subject to a final order of
7 removal. [ECF Doc. 13-1 at 14-15 (Santosky v. Kramer, 455 U.S. 745 (1982) (concerning
8 the termination of parental rights); Troxel v. Granville, 530 U.S. 57 (2000) (concerning the
9 visitation rights of grandparents); Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001)
10 (complaining that the police stated they had no knowledge of her son’s whereabouts when,
11 in fact, they had arrested him); Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977)
12 (upholding the constitutionality of the initial removal of the children by the city bureau of
13 child welfare without the consent of their mother or a prior court order); United States v.
14 Wolf Child, 699 F.3d 1082 (9th Cir. 2012) (reviewing a district court’s supervised release
15 condition in the context of sentencing); Lassiter v. Dep’t of Social Servs., 452 U.S. 18
16 (1981) (regarding the termination of a mother’s parental rights); Halet v. Wend Investment
17 Co., 672 F.2d 1305 (9th Cir. 1982) (challenging a lessor’s adults-only rental policy); Jordan
18 by Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994) (upholding statute that allowed, without
19 immediate administrative review, the temporary removal of a child from the plaintiff’s
20 home and placement in shelter care for the protection of the child); United States v. Loy,
21 237 F.3d 251 (3d Cir. 2001) (reviewing a district court’s conditions of supervised release in
22 a criminal case); Southerland v. City of New York, 680 F.3d 127 (2d Cir. 2012) (review of
23 a family court decision); Heartland Acad. Comm. Church v. Waddle, 427 F.3d 525 (8th Cir.
24 2005) (civil rights action by private boarding school, affiliated church, and parents against
25 juvenile officer and others for removing 115 students from the school)).]
26 ///
27 ///
28 ///
30

Opposition to Motion for P.I.

15

18cv428 DMS MDD

1

Congress has broad power to regulate immigration, even when Congress’ decisions

2 touch on sensitive familial relationships. See, e.g., Fiallo v. Bell, 430 U.S. 787, 797-98
3 (1977). The courts have rejected attempts to establish that aliens or U.S. citizens in detention
4 have any substantive due process right to family visitation, or to detention in proximity to
5 family members, let alone a right to be detained—much less released—together. See
6 Aguilar v. ICE, 510 F.3d 1, 22 (1st Cir. 2007) (rejecting the notion of a due process right to
7 family visitation in immigration detention). Relying on Aguilar, the U.S. District Court for
8 the Eastern District of California recently decided a very similar case:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

The Court has been unable to find a Ninth Circuit case that addresses
the specific issue of whether immigration detention and transfers violate the
substantive due process right to family integrity. However, there is a First
Circuit case that the Court finds instructive and persuasive… The Aguilar
class alleged that ICE’s actions violated, inter alia, their substantive due
process rights of family integrity and of parents to make decisions as to the
care, custody, and control of their children.
…
The Court recognizes the burden Petitioner’s immigration proceedings
and prolonged detention has placed on his family and is sympathetic to his
situation. However, no authority has been presented to this Court that holds
an immigration detainee has a due process right to be placed in a facility near
his family in order to facilitate visitation… Petitioner has not alleged that
government action resulted in termination of his parental rights or interfered
with his right to make fundamental decisions regarding his children’s
upbringing.
See Milan-Rodriguez v. Sessions, No. 116CV01578AWISABHC, 2018 WL 400317, at *810 (E.D. Cal. Jan. 12, 2018) (citations omitted). See also Gallanosa by Gallanosa v. United
States, 785 F.2d 116, 120 (4th Cir. 1986) (“The courts of appeals that have addressed this
issue have uniformly held that deportation of the alien parents does not violate any
constitutional rights of the citizen children.”); Gordon v. Mule, 153 F. App’x 39, 42 (2d Cir.
2005) (citing Government’s plenary power over immigration to reject claim that removal
violates substantive due process right to family unity).
To the extent that immigration detainees are analogous to pretrial detainees, see
Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) (“We consider a person detained
for deportation to be the equivalent of a pretrial detainee.”), Ms. L is arguing, in effect, that
arriving aliens have greater constitutional rights than U.S. citizens in pretrial detention. In

28
30

Opposition to Motion for P.I.

16

18cv428 DMS MDD

1 a recent case, the U.S. District Court for the Eastern District of California examined the
2 constitutional rights of a pretrial detainee to visit his minor children. See White v. Pazin,
3 No. 112CV00917BAMPC, 2016 WL 6124234, at *6 (E.D. Cal. Oct. 19, 2016), report and
4 recommendation adopted, No. 112CV00917AWIBAMPC, 2017 WL 661928 (E.D. Cal.
5 Feb. 16, 2017). In White, the plaintiff complained that, while he was detained as a pretrial
6 detainee, his visitation rights were suspended, and he was no longer allowed to visit with
7 his minor children under the age of 12 years. Id. at *2. The court concluded that “the relevant
8 law does not show there was any clearly established right protecting an inmate from policies
9 banning visitations with his minor children at the time of the events at issue.” Id. at *11. Of
10 course, arriving aliens do not have greater constitutional rights than U.S. citizens. See
11 Mathews v. Diaz, 426 U.S. 67, 79–80 (1976) (“In the exercise of its broad power over
12 naturalization and immigration, Congress regularly makes rules that would be unacceptable
13 if applied to citizens.”).18
14

Ms. L’s motion should therefore be denied, because she is unlikely to succeed: there

15 is no constitutional right of arriving aliens to be detained with their children.
16

2. Substantive due process

17

Apart from the lack of any constitutional right of a detainee, much less an arriving

18 alien under final order of removal, to be detained or released with his or her child, Ms. L
19 cannot establish that the San Diego ICE/ERO Family Unit and ORR have engaged in
20 conduct that is so outrageous that it “shocks the conscience.” See County of Sacramento v.
21

18

The Supreme Court has also rejected an analogous claim of due process rights to
22 family visitation among criminal detainees. See Olim v. Wakinekona, 461 U.S. 238, 247–
48 & n.8 (1983) (interstate transfer of a criminal detainee does not violate any due process
23 rights of the detainee, even if the transfer leaves the detainee separated hundreds of miles
from his family) (citing Montanye v. Haymes, 427 U.S. 236, 241 n.4 (1976)); see also
24 Newbold v. Stansberry, No. 1:08CV1266 (LO/JPP), 2009 WL 86740, at *3 (E.D. Va. Jan.
12, 2009) (O’Grady, J.) (holding that “a prisoner has no due process interest in his
25 placement at a particular prison, nor does the Constitution guarantee that the convicted
prisoner will be placed in any particular prison. Nor does a prisoner have a constitutional
26 right to receive visits from friends or family members.”) (internal quotations and citations
omitted), aff’d, 332 F. App’x 927 (4th Cir. 2009); Lyons v. Clark, 694 F. Supp. 184 (E.D.
27 Va. 1988) (Ellis, J.) (rejecting challenge to transfer of criminal detainee after finding no
liberty interest of criminal detainee “in receiving visits from family, friends and community
28 groups”).
30

Opposition to Motion for P.I.

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1 Lewis, 523 U.S. 833, 847 n.8 (1998) (“so egregious, so outrageous, that it may fairly be said
2 to shock the contemporary conscience.”). The Supreme Court has repeatedly warned against
3 analyzing claimed substantive due process rights “at too general a level.” Washington v.
4 Glucksberg, 521 U.S. 702, 720 (1997). See also Marsh v. Cty. of San Diego, 680 F.3d 1148,
5 1154 (9th Cir. 2012) (to violate the “well-established substantive due process right to family
6 integrity,” “the alleged conduct must ‘shock[ ] the conscience’ and ‘offend the community’s
7 sense of fair play and decency.’”).
8

Ms. L’s counsel speculates that ICE has a family separation policy, but there is no

9 basis for such speculation. On the contrary, the current manager of the San Diego ICE/ERO
10 Family Unit explains that the decision to place a child with ORR has only to do with the
11 welfare of the child. [Ortiz Declaration, paras. 2-3.] Likewise, ORR, which is not a law
12 enforcement agency, is focused purely on the welfare of the child.
13

CBP and ICE play an important role in interrupting efforts to prevent the exploitation

14 of minors to improve conditions of custody and/or chances of release. And ORR plays a
15 complementary role of ensuring the welfare of children. See D.B. v. Cardall, 826 F.3d at
16 741 (ORR’s “determination suffices to address any substantive due process concerns, and
17 it renders inapposite those decisions involving challenges to state interference with control
18 of children by fit parents.”).
19

Apart from the fact that Ms. L’s motion for equitable relief has been moot from the

20 start, she is unlikely to succeed on a claim that she has a substantive due process right to be
21 detained with her daughter pending her removal proceedings, especially as an arriving alien,
22 and especially as an arriving alien under a final order of removal.
23

3. Procedural due process.

24

Ms. L asserts a due process right to notice and opportunity to be heard on ICE’s

25 decision to transfer S.S. to ORR’s care and custody. [See ECF Doc. 13-1 at 13 n.4 (“Ms.
26 L.’s substantive due process right also carries with it a corresponding right to procedural
27 due process.”).] As in Reno v. Flores, 507 U.S. 292 (1993), Ms. L’s procedural due process
28 claim is really her “‘substantive due process’ argument recast in procedural terms.” Id. at
30

Opposition to Motion for P.I.

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18cv428 DMS MDD

1 293. Since immigration detainees, just like U.S. citizens in pretrial detention, have no
2 constitutional right to be detained with their children, there is no basis for requiring a
3 hearing on the transfer decision. Furthermore, as discussed below, the interest of
4 immigration detainees in being detained with their children is far outweighed by the
5 government’s interest in protecting children from exploitation by smugglers and human
6 traffickers. See Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976).
7

E. BALANCE OF HARDSHIPS TIPS IN FAVOR OF THE GOVERNMENT

8

Apart from the fact that Ms. L cannot meet the threshold requirement of

9 demonstrating likelihood of success on the merits, hardships tip heavily in favor of the
10 government. Any order that enjoins a governmental entity from enforcing the law or
11 interferes with an adjudication constitutes an irreparable injury to the government that
12 weighs heavily against the entry of injunctive relief. See, e.g., New Motor Vehicle Bd. v.
13 Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977).
The hardship of separation to a mother and her young daughter cannot be denied, but

14

15 neither can the governmental and public interests in protecting children from exploitation
16 by smugglers and human traffickers. Those interests would be irreparably harmed by
17 interference with ICE/ERO’s discretion to transfer children to the care and custody of ORR
18 over concerns about their safety and welfare and/or with ORR’s determination of placement
19 with a suitable sponsor.
20

IV

21

CONCLUSION
For the reasons set forth above, this Court should deny the requested preliminary

22

23 injunction. There is nothing to enjoin. Ms. L’s removal has been stayed pursuant to her own
24 request, and she has been released from detention. Diligent efforts are under way by ORR
25 to place non-party S.S. with Ms. L as long as she is a suitable sponsor.
26 ///
27 ///
28 ///
30

Opposition to Motion for P.I.

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18cv428 DMS MDD

1

Apart from mootness, Ms. L is not likely to succeed in this case on the merits: ICE’s

2 detention decisions are not judicially reviewable, and there is no constitutional right of
3 arriving aliens to be detained with their children. Even U.S. citizens in pretrial detention do
4 not have such a right. Furthermore, there is nothing about this case that “shocks the
5 conscience.” The decisions of the San Diego ICE/ERO Family Unit to transfer children to
6 the care and custody of ORR are made solely out of concerns for their safety and welfare,
7 as are ORR’s placement determinations.
8

The balance of hardships weighs heavily in favor of governmental and public

9 interests in preventing the exploitation of children and in ensuring non-party S.S.’s
10 placement with a suitable sponsor.
11

DATED: March 16, 2018

12

ADAM L. BRAVERMAN
United States Attorney

13

s/ Samuel W. Bettwy
SAMUEL W. BETTWY
Assistant U.S. Attorney

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15

CHAD A. READLER
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
SARAH B. FABIAN
Senior Litigation Counsel
NICOLE MURLEY
Trial Attorney
Office of Immigration Litigation
Civil Division, U.S. Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
[phone]
[phone] (facsimile)
[e-mail]

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Attorneys for Respondents-Defendants

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Respectfully submitted,

Opposition to Motion for P.I.

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