Maldonado et al v. Lloyd et al

Filing 28

OPINION & ORDER re: 1 PETITION FOR WRIT OF HABEAS CORPUS. For the reasons above, the Petition is GRANTED as to Count 1. Counts 2 and 3 of the Petition are DENIED as moot. Respondents shall immediately release EHE to the care and custody of his mother, Gloria Escobar Maldonado. The Clerk of Court is respectfully directed to close this case and remove it from the docket of this Court. SO ORDERED. (Signed by Judge John F. Keenan on 5/4/2018) (anc)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45

UNITED STATES DISTRICT COURT
USDC SDNY
SOUTHERN DISTRICT OF NEW YORK
DOCUMENT
------------------------------ X
ELECTRONICALLY FILED
GLORIA ESCOBAR MALDONADO, on
:
DOC #: _________________
her own behalf and on behalf
:
DATE FILED: 05/04/2018
UNITED STATES DISTRICT COURT
of EHE, her minor son, as his
:
SOUTHERN DISTRICT OF NEW YORK
next-----------------------------------------------------------x
friend,
:
In re FANNIE MAE 2008 SECURITIES :
:
08 Civ. 7831 (PAC)
Petitioners,
:
LITIGATION
:
09 MD 2013 (PAC)
: No. 18 Civ. 3089 (JFK)
:
:
OPINION ORDER
OPINION & & ORDER
-against:
-----------------------------------------------------------x
:
SCOTT LLOYD, Director, Office
:
of Refugee Resettlement,
:
et al.,
:
HONORABLE PAUL A. CROTTY, United States District Judge:
:
Respondents.
:
BACKGROUND1
------------------------------ X
APPEARANCES
The early years of this decade saw a boom in home financing which was fueled, among
FOR PETITIONERS GLORIA ESCOBAR MALDONADO and EHE
other things,P. low interest rates and lax credit conditions. New lending instruments, such as
Gregory by Copeland
Natalie E. Maust
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
THE LEGAL AID SOCIETY
kept the boom going. Borrowers played a role too; they took OF REFUGEE
FOR RESPONDENTS SCOTT LLOYD, DIRECTOR, OFFICE on unmanageable risks on the
RESETTLEMENT, ET AL.
assumption that the market would continue to rise and that refinancing options would always be
Brandon M. Waterman
Michael J. Byars
available in the future. Lending discipline was lacking in the system. Mortgage originators did
UNITED STATES ATTORNEY’S OFFICE
JOHN F. KEENAN, United States District Judge:
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
Before the Court is a habeas corpus petition (the
originators sold their loans into the secondary mortgage market, often as securitized packages
“Petition”), pursuant to 28 U.S.C. § 2241, brought by and on
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
behalf of EHE, a minor who is in the custody of the Office of
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
Refugee Resettlement (“ORR”). For just short of one year, EHE
and home prices began to fall. In light of the changing housing market, banks modified their
has been separated from his mother and in the custody of ORR,
lending practices and became unwilling to refinance home mortgages without refinancing.
which is a division within the Department of Health and Human
1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
1
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

1

Services (“HHS”).

EHE and his mother, Gloria Escobar Maldonado

(together, the “Petitioners”), seek EHE’s immediate release from
The Children’s Village, an ORR facility located in Dobbs Ferry,
New York.

The Petition names Scott Lloyd (Director of ORR),

Jonathan White (Deputy Director of ORR), Steven Wagner (Acting
Assistant Secretary for the Administration for Children and
Families), Alex Azar (HHS Secretary), Elcy Valdez (ORR Federal
Field Specialist), and Jefferson B. Sessions, III (U.S. Attorney
General) as respondents (collectively, “Respondents”).

For the

reasons stated below, the Court will grant the relief sought and
order EHE’s immediate release into the care and custody of his
mother.
I. Background
The Court makes the following findings of fact, which are
undisputed unless otherwise noted. See 28 U.S.C. § 2243 (“The
court shall summarily hear and determine the facts, and dispose
of the matter as law and justice require.”).

The Court’s

findings are based on the Petition and Petitioners’ reply brief,
Respondents’ opposition brief, sworn affidavits and documentary
evidence in support of the parties’ respective positions, and
oral argument. See Birch v. Decker, 17-cv-6769 (KBF), 2018 WL
794618, at *2 n.1 (S.D.N.Y. Feb. 7, 2018) (on petition for
habeas corpus pursuant to § 2241, considering petition and
associated exhibits, respondents’ brief in opposition, and
2

certain documents attached to respondents’ return).

At oral

argument, Petitioners’ counsel agreed that the Court could
consider all of the exhibits that have been submitted. (Tr. of
Hr’g at 11, ECF No. 24 (filed May 2, 2018).)
A. EHE’s Arrest and Placement into ORR Custody1
EHE is 16 years old. (Pet. ¶ 2, ECF No. 11 (filed Apr. 11,
2018).)

Prior to being detained by ORR, EHE lived with his

mother—Ms. Maldonado—and sisters in Brentwood, New York. (Id. ¶¶
22-23.)

EHE began residing with Ms. Maldonado some time in

2015. (Maldonado Decl. ¶ 3, Pet. Ex. 1, ECF No. 11-1 (filed Apr.
11, 2018); Tr. of Hr’g at 2.)

EHE is a native and citizen of

Honduras. (Resp’ts’ Mem. in Opp’n at 7, ECF No. 16 (filed Apr.
12, 2018).)
On May 30, 2017, EHE and his friends were riding their
bicycles in Brentwood when they were stopped by officers from
the Suffolk County Police Department (“SCPD”). (Pet. ¶¶ 3, 37.)
EHE was handcuffed and taken into custody. (Id. ¶ 37.)

The

arrest was purportedly effected pursuant to a Department of
Homeland Security (“DHS”) warrant dated May 30, 2017. (Resp’ts’

The Court notes that Petitioners, in an effort to safeguard
EHE’s privacy, have filed substantially redacted versions of the
Petition and their reply brief (and exhibits). Given that
Respondents’ opposition brief and the oral argument transcript
refer to many of the underlying details and information left out
of Petitioners’ public filings—and that both documents have been
filed without redaction—the Court will file this Opinion without
redaction.
1

3

Mem. in Opp’n at 7-8; Warrant of Arrest, Resp. to Pet. Ex. B,
ECF No. 13-2 (filed Apr. 12, 2018).)

The grounds for the DHS

warrant have not been made clear, and EHE was not told the
reason for his arrest. (Pet. ¶ 37; Tr. of Hr’g at 15-16, 25-26.)
However, documents created upon EHE’s arrest show that
immigration authorities immediately portrayed him as a gang
member, based on SCPD’s vague and generalized observations.2

EHE

has not been charged with a criminal offense. (Pet. ¶¶ 37-38;
Tr. of Hr’g at 14.)
The following day, EHE was transferred into the custody of
Immigration and Customs Enforcement (“ICE”) and taken to John F.
Kennedy Airport, where he was allowed to speak to his mother by
phone for the first time since his arrest. (Pet. ¶ 41.)
Ms. Maldonado was informed that EHE was in ICE custody and was
boarding a plane to the state of Washington. (Id. ¶ 42.)

Upon

his arrival in Washington, EHE was placed in ORR custody and

For example, a May 30, 2017 memorandum prepared on ICE
letterhead classifies EHE as a “likely MS-13 member” because:
(1) he “has been identified as a likely member of MS-13 by
[SCPD];” (2) his “clothing and accessories are indicative of
membership in MS-13;” and (3) he “is regularly found associating
with confirmed MS-13 gang members.” (HSI Memo at 2, Pet. Ex. 17,
ECF No. 11-17 (filed Apr. 11, 2018).) A DHS form, also dated
May 30, 2017, repeats the same observations verbatim. (Form I213 at 3-4, Resp. to Pet. Ex. A., ECF No. 13-1 (filed Apr. 12,
2018).)
2

4

admitted to the Selma R. Carson Home, a “staff-secure” facility.3
(Id. ¶ 43.)

On June 8, 2017, EHE was transferred to Yolo County

Juvenile Detention Facility, a “secure” facility, in Woodland,
California. (Id. ¶ 44.)

After approximately sixty-four days,

EHE was transferred to a “staff-secure” facility at The
Children’s Village. (Id. ¶¶ 45-46.)

On March 14, 2018, EHE was

“stepped down” to a “shelter” facility at The Children’s
Village. (Id. ¶ 46.)
B. The Flores Bond Hearing
Respondents contend that two determinations must be made
before EHE may be released from ORR custody. (Resp’ts’ Mem. in
Opp’n at 1, 12-13.)

First, there must be a determination with

regard to dangerousness, i.e., that EHE does not pose a danger
to himself or others if released. (Id. at 1, 4.)

Second, there

must be a determination that EHE’s potential sponsor—i.e., his
mother, the person to whom he would be released—is capable of
providing for his physical and mental well-being. (Id. at 1, 6.)
Respondents refer to the latter inquiry as the suitability
determination, which rests with ORR. (Id. at 1, 6-7.)
With respect to the former inquiry, in the wake of the
Ninth Circuit’s decision in Flores v. Sessions, 862 F.3d 863

ORR operates three types of facilities. In descending order of
the restrictions imposed on children in custody, the facilities
are designated as: secure, staff-secure, and shelter. (Resp’ts’
Mem. in Opp’n at 4-5.)
3

5

(9th Cir. 2017), the dangerousness determination may be
adjudicated by an immigration judge after a hearing. (Id. at 67; see also Tr. of Hr’g at 22 (“Following the Flores decision
. . . we have a different process, where the dangerousness
decision is made by the immigration courts and ORR is strictly
determining suitability.”).)

On March 13, 2018, EHE appeared

before an immigration judge (the “IJ”) for a Flores hearing.
(Pet. ¶ 78.)

At the hearing, ORR proffered evidence, some of

which was allegedly collected from EHE’s cellphone, to support
its position that he poses a danger. (Id. ¶ 76.)

At the

conclusion of the hearing, the IJ found that EHE is “neither a
danger to the community nor a flight risk.” (Id. ¶ 78; EHE
Flores Tr. at 54, Pet. Ex. 14, ECF No. 11-14 (filed Apr. 11,
2018).)
On March 16, 2018, ORR appealed the IJ’s decision to the
Board of Immigration Appeals (“BIA”). (Resp’ts’ Mem. in Opp’n at
9.)

At the same time, ORR filed with the BIA a motion to stay

the IJ’s decision, which the BIA granted on March 20, 2018.
(Id.)

On April 5, 2018, EHE moved for reconsideration of the

stay order, which the BIA denied on April 19, 2018. (Id.; Letter
from Michael J. Byars to Hon. John F. Keenan, ECF No. 23 (filed
Apr. 20, 2018).)

With regard to ORR’s appeal of the IJ’s March

13, 2018 decision, the parties’ briefs were due on May 2, 2018.
(Tr. of Hr’g at 6.)

The Court has been informed that, on May 3,
6

2018, ORR requested an extension of time to submit its brief.
(Letter from Gregory P. Copeland to Hon. John F. Keenan at 1-2,
ECF No. 26 (filed May 4, 2018).)

There is no date for argument

and no clear timeline for the BIA’s decision. (Tr. of Hr’g at 6,
19-20.)
C. Ms. Maldonado’s Sponsorship Efforts
Ms. Maldonado indicated that she wanted to reunify with EHE
when ORR contacted her on June 1, 2017, and EHE indicated that
he wanted to reunify with Ms. Maldonado approximately one week
later. (Pet. ¶¶ 79, 82; see also Michael Lonoff Mentions at 2,
Pet. Ex. 19, ECF No. 11-19 (filed Apr. 11, 2018) (ORR notes
dated June 1 stating “Mother wants to reunify [with] her son but
is asking for help, she will be providing minor’s BC this
weekend.”).)

On June 5, 2017, Ms. Maldonado received a family

reunification pack (“FRP”). (Pet. ¶ 81.)

On July 13, 2017, Ms.

Maldonado submitted an FRP by fax to Yolo County Juvenile
Detention Facility, where EHE was then being held. (See Tr. of
Hr’g at 10; see also Yolo Cty CM Notes at 2, Pet’rs’ Reply Ex.
3, ECF No. 19-3 (filed Apr. 16, 2018) (ORR notes indicating
receipt of “FRP via fax”).)
A home study at Ms. Maldonado’s residence was conducted on
July 21, 2017, resulting in a report (the “First Home Study
Report”) on August 2, 2017. (Pet. ¶¶ 83-85.)

The First Home

Study Report recommended against releasing EHE to his mother.
7

(Id. ¶ 85; see also Valdez Decl. ¶ 13, ECF No. 15 (filed Apr.
12, 2018).)

In their papers, Respondents cite several incidents

in connection with the negative recommendation, however they
identify no definitive reason for the negative recommendation.
One such incident is from September 2017, i.e., after completion
of the First Home Study Report. (Resp’ts’ Mem. in Opp’n at 10;
Valdez Decl. ¶ 13.)

The First Home Study Report also evidently

indicated that Ms. Maldonado did not want to reunify with EHE.4
(Pet. ¶ 84.)
Ms. Maldonado restarted the sponsorship process in November
2017. (Valdez Decl. ¶ 14.)

After another home study was

conducted in January 2018, a second report (the “Second Home
Study Report”) was completed on January 24, 2018. (Pet. ¶ 87.)
The Second Home Study Report included a positive recommendation
regarding EHE’s release to Ms. Maldonado and noted that she
“shows that she is able to provide [EHE] with a safe and stable
home environment and demonstrates willingness to seek assistance
through community services.” (January 2018 Homestudy at 23, Pet.
Ex. 24, ECF No. 11-24 (filed Apr. 11, 2018).)
A third home study was conducted on March 15, 2018, after
which ORR told Ms. Maldonado that another report had to be

The proposition that Ms. Maldonado did not wish to reunify with
EHE appears to be incompatible with her submission of the FRP on
July 13, 2017 and is belied by her subsequent actions, including
initiating this habeas proceeding.
4

8

prepared. (Pet. ¶ 89.)

Additionally, ORR explained that “it

would take at least a month before anything would be done” with
respect to her application. (Id. ¶ 91.)

As of April 5, 2018,

ORR had not submitted the application, citing a technical issue
with the online portal used for submitting applications. (Id. ¶
92; Emails with ORR at 1, Pet. Ex. 23, ECF No. 11-23 (filed Apr.
11, 2018).)
On April 11, 2018, the “care provider”—which the Court
presumes to be The Children’s Village—recommended against
releasing EHE to his mother. (Valdez Decl. ¶ 16.)

No

explanation for the negative recommendation has been supplied to
Ms. Maldonado or the Court.

ORR maintains that a final

determination regarding EHE’s release to Ms. Maldonado remains
pending. (Resp’ts’ Mem. in Opp’n at 10; Valdez Decl. ¶ 16.)

At

oral argument, Respondents’ counsel suggested that the
suitability determination “hopefully” could be reached “by the
end of next month,” i.e., May 2018. (Tr. of Hr’g at 20, 32.)
The Court also notes that in February 2017—approximately
four months before EHE was arrested—ORR determined that Ms.
Maldonado was a suitable sponsor for EHE’s teenage sister. (See
Letter from Gregory P. Copeland to Hon. John F. Keenan at 1, ECF
No. 21 (filed Apr. 18, 2018) (indicating that EHE’s sister was
released into the mother’s custody on February 5, 2017); see
also Letter from Brandon M. Waterman to Hon. John F. Keenan at
9

1, ECF No. 22 (filed Apr. 19, 2018) (same).)

The Second Home

Study Report, dated January 24, 2018, indicated that Ms.
Maldonado’s daughter was “observed to be content, well-groomed,
and well cared for overall.

She reports that she has everything

she needs and is well cared for by” Ms. Maldonado. (January 2018
Homestudy at 10.)
D. Procedural History
Petitioners filed the Petition under seal on April 6, 2018,
and filed a heavily redacted version of the Petition on April
11, 2018.

On April 18, 2018, the Court heard oral argument, at

which Respondents provided the Court with a copy of ORR’s brief
to the BIA opposing EHE’s motion for reconsideration of the
BIA’s order staying the IJ’s decision of March 13, 2018.
II. Discussion
A. Subject Matter Jurisdiction
Respondents do not challenge whether this Court has subject
matter jurisdiction over the Petition and the Court concludes
that it does.

Ms. Maldonado has “next friend” standing to bring

this action under § 2241 because EHE is a minor and his mother
is dedicated to act in his best interests. See Ross ex rel.
Dunham v. Lantz, 408 F.3d 121, 123 (2d Cir. 2005) (“First, a
‘next friend’ must provide an adequate explanation . . . why the
real party in interest cannot appear on his own behalf to
prosecute the action.

Second, the ‘next friend’ must be truly
10

dedicated to the best interests of the person on whose behalf he
seeks to litigate[.]” (quoting Whitmore v. Arkansas, 495 U.S.
149, 163 (1990))).

When the Petition was filed, EHE was in ORR

custody and detained in The Children’s Village in Dobbs Ferry,
New York, which is within this Court’s jurisdiction in the
Southern District of New York. See 28 U.S.C. § 112(b).
Additionally, Ms. Maldonado has been trying to reunify with her
son since at least November 2017 and asserts that EHE’s
detention violates his constitutional rights.

Accordingly, the

Court has jurisdiction over the Petition.
B. Statutory and Regulatory Framework
1. The Homeland Security Act and the Trafficking Victims
Protection Reauthorization Act
In 2002, Congress enacted the Homeland Security Act (the
“HSA”), 6 U.S.C. § 279.

The HSA “transferred a number of the

functions relating to the care of unaccompanied minors from the
former INS to the Director of [ORR] of the Department of Health
and Human Services.” Flores, 862 F.3d at 870.

As relevant here,

the HSA sets forth the definition of “unaccompanied alien child”
(“UAC”).

Under § 279(g)(2), a UAC is a child who:

(A) has no lawful immigration status in the
United States; (B) has not attained 18 years of
age; and (C) with respect to whom—(i) there is no
parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United
States is available to provide care and physical
custody.

11

The HSA makes ORR responsible for “making placement
determinations for all [UACs] who are in Federal custody by
reason of their immigration status.” 6 U.S.C. § 279(b)(1)(C).
In making such determinations, ORR is directed to ensure that
UACs are not placed in a setting where they are “likely to pose
a danger to themselves or others.” Id. § 279(b)(2)(A)(iii).
UACs may not be released upon their own recognizance.
Id. § 279(b)(2)(B).
In 2008, Congress enacted the Trafficking Victims
Protection Reauthorization Act (the “TVPRA”), 8 U.S.C. § 1232.
The TVPRA incorporates the HSA’s definition of “unaccompanied
alien child” by reference, 8 U.S.C. § 1232(g), and many of its
provisions are addressed to UACs.

The TVPRA directs that “the

care and custody of all [UACs], including responsibility for
their detention, where appropriate, shall be the responsibility
of the Secretary” of HHS. Id. § 1232(b)(1).

Furthermore, “any

department or agency of the Federal Government that has an
unaccompanied alien child in custody shall transfer the custody
of such child to [HHS] not later than 72 hours after determining
that such child is an unaccompanied alien child.” Id. §
1232(b)(3).
Once a UAC is in custody, HHS shall “promptly” place the
UAC “in the least restrictive setting that is in the best
interest of the child.” Id. § 1232(c)(2).
12

Whether the UAC poses

a “danger to self,” “danger to the community,” or “risk of
flight” may be considered. Id.

HHS “may not” place a UAC “with

a person or entity” until it has made “a determination that the
proposed custodian is capable of providing for the child’s
physical and mental well-being.” Id. § 1232(c)(3)(A); see also
id. § 1232(c)(3)(B) (requiring, in some instances, that a home
study be conducted before a UAC is placed with an individual).
2. ORR Policies
As the Court has noted previously, ORR must make two
determinations before releasing a UAC into the custody of a
sponsor:

(1) a dangerousness determination, and (2) a

suitability determination.

Here, in light of ORR’s appeal of

the IJ’s determination that EHE did not pose a danger, the BIA
will render the final decision on the question of dangerousness.
(Tr. of Hr’g at 30.)

Even if the BIA upholds the IJ’s

determination that EHE is not dangerous, however, ORR will not
release EHE until a suitable sponsor has been determined.
(Resp’ts’ Mem. in Opp’n at 14.)
In assessing suitability, ORR must 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).

Under ORR policy,5 a potential sponsor must

ORR’s policies are available at
https://www.acf.hhs.gov/orr/resource/children-entering-the5

13

submit an application, provide identification documentation, and
undergo a background check. (Resp’ts’ Mem. in Opp’n at 6 (citing
ORR policy guide published online).

Once the assessment of the

potential sponsor is complete, the care provider makes a release
recommendation, followed by ORR’s final release decision. (Id.)
Additionally, for UACs in secure or staff-secure facilities, or
for UACs who have been in such facilities previously, the final
release decision is elevated to the ORR Director. (Id.)

In

making the final release decision, the ORR Director can consider
“anything that was before the agency.” (Tr. of Hr’g at 29-30.)
C. ORR Lacks Authority to Detain EHE Because He Is Not an
“Unaccompanied Alien Child”
Before reaching Petitioners’ due process arguments, the
Court will analyze the HSA and TVPRA, which make ORR responsible
for the custody and placement of UACs.

Petitioners do not

challenge EHE’s classification as a UAC. (See Tr. of Hr’g at 8.)
However, the Court is bound to consider the applicable statutory
text. See Camreta v. Greene, 563 U.S. 692, 705 (2011) (“[A]
longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the
necessity of deciding them.” (internal quotation marks

united-states-unaccompanied (last visited May 4, 2018). “These
policies . . . are not promulgated through any formal agency
rule-making process and do not appear to have any binding
effect.” Flores, 862 F.3d at 871.
14

omitted)).

In so doing, the Court concludes that EHE is not a

UAC, and therefore ORR is without authority to detain him.
As noted above, the HSA defines a UAC as a child who:
(A) has no lawful immigration status in the
United States; (B) has not attained 18 years of
age; and (C) with respect to whom—(i) there is no
parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United
States is available to provide care and physical
custody.
6 U.S.C. § 279(g)(2).

The TVPRA incorporates the HSA’s

definition of UAC by reference. See 8 U.S.C. § 1232(g).

Given

the conjunctive phrasing of § 279(g)(2), an individual satisfies
the statutory definition of a UAC only if each of the three
prongs—(A), (B), and (C)—are met.
Here, prong (A) appears to be met because EHE does not
challenge Respondents’ assertion that he is without lawful
immigration status. (See Resp’ts’ Mem. in Opp’n at 1.)
Likewise, prong (B) is met because it is uncontested that EHE
has yet to attain eighteen years of age. (See Tr. of Hr’g at
24.)

However, with respect to prong (C), Ms. Maldonado—who is

indisputably EHE’s “parent or legal guardian”—is in the United
States. See 6 U.S.C. § 279(g)(2)(C)(i).

Thus, EHE is

“unaccompanied” only if “no parent or legal guardian in the
United States is available to provide care and physical
custody.” Id. § 279(g)(2)(C)(ii).

15

Analyzing the ordinary meaning of the text of §
279(g)(2)(C)(ii), the Court concludes that Ms. Maldonado is
“available to provide care and physical custody” and, therefore,
EHE is not properly classified as a UAC.

“Statutory

construction must begin with the language employed by Congress
and the assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.” United States v.
Kozeny, 541 F.3d 166, 171 (2d Cir. 2008) (internal quotation
marks omitted).

In this endeavor, the Court is guided by Judge

Floyd’s well-reasoned dissent in D.B. v. Cardall, 826 F.3d 721,
744-52 (4th Cir. 2016).

As Judge Floyd observed, both parts of

§ 279(g)(2)(C) concentrate on a parent’s physical presence “in
the United States,” and § 279(g)(2)(C)(ii) deploys the word
“available.” Cardall, 826 F.3d at 747 (Floyd, J., dissenting).
The selection of this specific language leads to the conclusion
that “in drafting the statute, Congress was concerned with
whether a child was accompanied in the sense of having a parent
in the territory of the United States, and not accompanied in
the sense of having a parent holding the child’s hand at all
times.” Id.

Accordingly, a child is not “unaccompanied”–and,

therefore, neither a UAC nor properly within ORR’s regulatory
ambit–if a parent is physically present in the United States

16

and, as a practical matter,6 is available to provide care and
physical custody.
The Court’s interpretation is consonant with the customary
circumstances giving rise to ORR custody. (See Tr. of Hr’g at 89 (Petitioners’ counsel stating that “typically unaccompanied
alien children are children that are crossing the border and not
children, in our client’s position, that were living with their
mother at the time that they were taken into ICE and then ORR
custody.”).)

Moreover, it is consistent with Respondents’ own

understanding of the applicable statutes and the scope of ORR’s
authority.

Respondents acknowledge that when EHE attains

eighteen years of age—i.e., when he ceases to be a “child” in
the UAC formulation—he will “no longer be subject to ORR custody
and they would release him.”7 (Id. at 24.)

The same logic

applies to a child who is not “unaccompanied” because a parent
in the United States is available to provide care and physical

A parent might be physically present in the United States and
yet not “available to provide care and physical custody” when,
for example, the parent “refuses to make herself available to
take custody of a child” or is “incarcerated or otherwise in
custodial detention.” Cardall, 826 F.3d at 747 (Floyd, J.,
dissenting). No such situation applies in this case.
6

ORR evidently took the same position in a separate, previous
litigation. See Cardall, 826 F.3d at 749 n.3 (Floyd, J.,
dissent) (“[ORR] appears to concede that its authority ends once
an individual ceases to be an ‘unaccompanied alien child.’ It
recognizes that its authority ends once R.M.B. ‘turns
eighteen.’”).
7

17

custody.

Finally, such an interpretation comports with the

significant procedural safeguards that traditionally accompany
attempts by the Government to intervene in the relationship
between a parent and child. See, e.g., Stanley v. Illinois, 405
U.S. 645, 658 (1972) (holding that “parents are constitutionally
entitled to a hearing on their fitness before their children are
removed from their custody”).
Here, the record belies the proposition that EHE is
“unaccompanied” in a statutorily relevant sense.

At the time he

was arrested, EHE was residing with his mother in Brentwood, New
York. (Pet. ¶ 22.)

There is no contention that Ms. Maldonado

was in any way not “available to provide care and physical
custody” at that time, nor have Respondents argued that she
subsequently became unavailable.

Moreover, since at least

November 2017, Ms. Maldonado has unambiguously communicated her
desire to reunite with EHE. (See Resp’ts’ Mem. in Opp’n at 10
(acknowledging that Ms. Maldonado “agreed to restart the
sponsorship process” in November 2017).)

Accordingly, the Court

concludes that the statutory term “UAC” does not apply to EHE.
Respondents repeatedly claim that ORR cannot release EHE
before final determinations on dangerousness and suitability
have been rendered. (See id. at 12-13, 15, 19.)
presupposes that EHE is a UAC.

This refrain

However, no provision of the HSA

or TVPRA appears to empower ORR to detain a child who, like EHE,
18

is not a UAC.

Without statutory power, ORR has no authority

over EHE. See City of New York v. Permanent Mission of India to
United Nations, 618 F.3d 172, 187 (2d Cir. 2010) (“But ‘an
agency literally has no power to act . . . unless and until
Congress confers power upon it.’” (quoting La. Pub. Serv. Comm’n
v. FCC, 476 U.S. 355, 374 (1986))).

Accordingly, EHE must be

released.
D. ORR’s Detention of EHE Violates His Right to Procedural Due
Process
Were the Court to conclude that ORR possessed statutory
authority with respect to EHE, it nevertheless would agree with
Petitioners that EHE’s continued detention and separation from
his mother violates his right to procedural due process under
the Fifth Amendment.

“The Due Process Clause ‘imposes

constraints on governmental decisions which deprive individuals
of “liberty” or “property” interests within the meaning’ of the
Fifth Amendment.” Barrows v. Burwell, 777 F.3d 106, 113 (2d Cir.
2015) (quoting Mathews v. Eldridge, 424 U.S. 319, 332 (1976)).
The Due Process Clause “applies to all ‘persons’ within the
United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent.” Zavydas v. Davis,
533 U.S. 678, 693 (2001).
In evaluating alleged violations of procedural due process
arising under the Fifth Amendment, the Second Circuit has

19

employed the balancing test set forth by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319 (1976). See Weinstein v.
Albright, 261 F.3d 127, 136 n.8 (2d Cir. 2001).

Under the

Mathews framework, a court must consider:
First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.
424 U.S. at 335.
With respect to the first Mathews factor, the Second
Circuit has long recognized the private interest affected here.
The “right to the preservation of family integrity encompasses
the reciprocal rights of both parent and children.” Duchesne v.
Sugarman, 566 F.2d 817, 825 (2d Cir. 1977).

Children have a

“constitutionally protected liberty interest in not being
dislocated from the emotional attachments that derive from the
intimacy of daily family association.” Kia P. v. McIntyre, 235
F.3d 749, 759 (2d Cir. 2000) (internal quotation marks and
alteration omitted)); see also Southerland v. City of New York,
680 F.3d 127, 142 (2d Cir. 2012) (parents “have a
constitutionally protected liberty interest in the care, custody
and management of their children” (quoting Tenenbaum v.

20

Williams, 193 F.3d 581, 593 (2d Cir. 1999))).

Here, EHE and his

mother have been separated for more than eleven months.

There

is no doubt that Respondents’ actions have “encroached” upon
EHE’s right to family integrity “considerably.” See Beltran v.
Cardall, 222 F. Supp. 3d 476, 482 (E.D. Va. 2016).
With respect to the second Mathews factor, it is
appropriate to review the process that has been provided to
Petitioners so far.

The Court will consider the process

provided to Ms. Maldonado despite the fact that, insofar as she
asserts claims solely on her own behalf, she may not be a proper
petitioner under § 2241.8

Other courts evaluating similar

petitions brought by a parent on behalf of a minor have analyzed
the process provided to the parent. See Santos v. Smith, 260 F.
Supp. 3d 598, 607, 611-14 (W.D. Va. 2017); Beltran, 222 F. Supp.
3d at 482-88.

Here, the Court likewise concludes that such a

course is proper in light of the “reciprocal rights” possessed
by parent and child. See Duchesne, 566 F.2d at 825.

As the caption indicates, Ms. Maldonado brings claims on behalf
of EHE as his “next friend” as well as due process claims on her
own behalf. Based on the action’s styling (“Petition for Writ
of Habeas Corpus”), the fact of EHE’s detention, and the primary
relief sought (i.e., EHE’s release), the Court treats the claims
presented here as a habeas petition pursuant to § 2241. “[A]
general requirement of a § 2241 petition is that the petitioner
be in custody.” Santos v. Smith, 260 F. Supp. 3d 598, 607 (W.D.
Va. 2017). Petitioners, however, have not argued that Ms.
Maldonado is in custody.
8

21

EHE has been in ORR custody since May 31, 2017.

On July

13, 2017, Ms. Maldonado submitted an FRP, indicating her desire
to reunite with EHE. (Tr. of Hr’g at 10.)

A home study was

conducted in July 2017 and the First Home Study Report was
completed on August 2, 2017. (Pet. ¶¶ 83, 85.)

The First Home

Study Report recommended against releasing EHE to his mother.
Having made no apparent progress toward reunification with
her son, Ms. Maldonado restarted the sponsorship process in
November 2017. (Valdez Decl. ¶ 14.)

A second home study was

conducted in January 2018, resulting in the Second Home Study
Report on January 24, 2018. (Pet. ¶ 87.)

The Second Home Study

Report recommended that EHE be released to Ms. Maldonado.
(January 28 Homestudy at 23.)
On March 13, 2018, a Flores hearing was held in immigration
court. (Pet. ¶ 78.)

At the conclusion of the hearing, the IJ

determined that EHE was “neither a danger to the community nor a
flight risk.” (EHE Flores Tr. at 54.)

ORR then applied for (and

obtained) a stay of the IJ’s decision and filed an appeal with
the BIA, which, as of the date of this Opinion, remains pending
with no definite timeline for a decision.
Following a third home study conducted on March 15, 2018,
ORR told Ms. Maldonado that another report had to be prepared
and that a determination regarding her application would be
further delayed. (Pet. ¶¶ 89, 91.)
22

As of April 5, 2018, ORR had

yet to submit the application due to technical problems. (Id. ¶
92.)
Respondents have informed the Court that, on April 11,
2018, the “care provider” recommended against releasing EHE to
Ms. Maldonado. (Valdez Decl. ¶ 16.)

As Petitioners’ counsel

stated at oral argument, Ms. Maldonado learned of this negative
recommendation only by virtue of this litigation and received no
written notice from ORR. (See Tr. of Hr’g at 9, 35.)

No

explanation for the negative recommendation-and, thus, no
grounds to challenge it—has been supplied to Ms. Maldonado or
the Court. (Id.)

ORR maintains that a final determination

regarding EHE’s release to his mother remains pending, but has
not explained what role the care provider’s negative
recommendation will play in that determination or what other
information, if any, will be considered in making the final
determination.
In sum, the record reveals that, over the course of more
than eleven months, EHE has received a hearing in immigration
court on the question of his dangerousness, and Ms. Maldonado
has been afforded the opportunity to submit an application
requesting that her child be released to her and the opportunity
to participate in several home studies for the purpose of
evaluating her suitability as a sponsor for EHE.

As several

other courts have found, this process displays several
23

significant deficiencies, especially in view of the magnitude of
the private interest at stake. See Santos, 260 F. Supp. 3d at
611-15; Beltran, 222 F. Supp. 3d at 482-89.
As an initial matter, Respondents have not made adequate
disclosures to Ms. Maldonado about ORR’s decision-making.
Respondents attempt to connect several incidents to the First
Home Study Report’s negative recommendation, but none is offered
as the actual foundation for the negative recommendation. (See
Resp’ts’ Mem. in Opp’n at 10; Valdez Decl. ¶ 13.)

One such

incident occurred on September 7, 2017 and, therefore, could not
have supported the negative recommendation issued on August 2,
2017.

Additionally, after advising Ms. Maldonado that her

application would be further delayed in March 2018, Respondents
failed to provide her with clear information about the status of
her application and what, if anything, must be done to finalize
it. (See Pet. ¶¶ 89-92.)

Finally, Respondents failed to provide

Ms. Maldonado with notice of the care provider’s April 11, 2018
negative recommendation or any supporting rationale.

But for

the instant proceeding, there is no indication that Ms.
Maldonado would have learned of this latest negative
recommendation, which contradicts—without any stated reason—the
positive recommendation made on January 24, 2018.

These

“opaque” procedures have deprived Ms. Maldonado of “any
opportunity to contest ORR’s findings, and thus any meaningful
24

opportunity to alter its conclusions.” Beltran, 222 F. Supp. 3d
at 485.
Additionally, ORR’s suitability determination has been
inordinately and inexplicably delayed.

EHE has been in ORR

custody for more than eleven months, and Ms. Maldonado first
submitted an FRP indicating her desire to reunify with EHE nine
months ago, in July 2017.

Even measuring from November 2017,

when Ms. Maldonado restarted the sponsorship process, six months
have now passed.

Yet ORR still has not rendered a final

decision regarding her suitability as a sponsor for EHE, nor has
it offered any explanation for this delay.
ORR’s delay is even more troubling in light of its February
5, 2017 determination that Ms. Maldonado is a suitable sponsor
for EHE’s teenage sister. (See Letter from Gregory P. Copeland
to Hon. John F. Keenan at 1.)

ORR determined that Ms. Maldonado

was a suitable sponsor for EHE’s sister just four months before
EHE was arrested and transferred into ORR custody.

As recently

as January 24, 2018, ORR found that EHE’s sister was “content,
well-groomed, and well cared for overall,” and reported that
“she has everything she needs and is well cared for by” Ms.
Maldonado. (January 2018 Homestudy at 10.)

When given an

opportunity to identify any changed circumstances that might
support a different conclusion with respect to Ms. Maldonado’s

25

suitability to sponsor EHE, Respondents failed to do so.9 (See
Letter from Brandon M. Waterman to Hon. John F. Keenan at 1-2
(stating that “ORR conducts a new suitability analysis for each
potential release” but offering no new information bearing on
Ms. Maldonado’s suitability).)

In light of these facts, ORR’s

prior determination as to Ms. Maldonado’s suitability belies the
proposition that she may not be a suitable sponsor for EHE.
Finally, other courts have found that when a parent (rather
than another relative or a friend) seeks reunification with her
child, ORR procedures improperly place the burden of proof on
the parent to demonstrate suitability rather than on ORR to
justify its continued custody of the child. See Santos, 260 F.
Supp. 3d at 613 (“[W]hen a parent is requesting reunification,
the burden should be on ORR to show why its continued custody of
a UAC is appropriate, rather than placing that burden on the
parent.”); Beltran, 222 F. Supp. 3d at 485 (finding process
inadequate because “[a]t no point was the onus on ORR to justify
its deprivation of Petitioner’s fundamental parental rights”).
In this case, the Court agrees that ORR’s procedures improperly

To whatever extent ORR relies on the “sensitive information”
contained in its brief in the pending BIA proceeding, (Tr. of
Hr’g at 20-21), that document—which the Court has reviewed—does
not describe otherwise undisclosed behavior on the part of
either EHE or Ms. Maldonado. Therefore, it does not reflect any
change of circumstance that bears directly on Ms. Maldonado’s
suitability as a sponsor for EHE.
9

26

place the burden on Ms. Maldonado, especially in light of the
uncontested fact that EHE was living with her prior to his
arrest.
To summarize, “the deficient procedures employed by ORR
created a significant risk” that EHE “would be erroneously
deprived of [his] right to family integrity.” Beltran, 222 F.
Supp. 3d at 488.

“This risk could have been mitigated by

additional procedural safeguards,” including enhanced
transparency regarding ORR’s decision-making, an expedited
suitability determination, and adjusting the burden of proof to
account for the important private interest at stake. Id.
Accordingly, Respondents “must demonstrate that an
extraordinarily compelling interest justified ORR’s failure” to
provide additional or substitute procedures. Id.
Turning to the third Mathews factor, Respondents have not
explicitly named the Government interest to be weighed against
EHE’s private interest.

The most obvious Government interests

here are protecting the welfare of children and the safety of
the public. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 11991200 (N.D. Cal. 2017) (in case involving detention of UACs
previously released to sponsors, recognizing the Government’s
asserted interests in “public safety and welfare, including the
welfare of the minor”), appeal docketed, No. 18-15114 (9th Cir.
Jan. 23, 2018); see also Gottlieb v. County of Orange, 84 F.3d
27

511, 518 (2d Cir. 1996) (“Where . . . there is an objectively
reasonable basis for believing that parental custody constitutes
a threat to the child’s health or safety, government officials
may remove a child from his or her parents’ custody at least
pending investigation.”).
As in Santos, Respondents here fail to “identif[y] what
burden it would impose on ORR to provide more process to [EHE]
(or children like him) and parents who seek reunification with
their children.” 260 F. Supp. 3d at 615 (emphasis in original).
Nor have Respondents indicated the number of children currently
in ORR custody who, like EHE, are detained over the objection of
an available parent.

Thus, the Court cannot determine “the

burden on ORR of, for example, holding hearings, making more
expeditious decisions, etc.” Id.

Whatever burden additional or

substitute procedures might impose, however, “is not sufficient
to overcome the first two factors of the Mathews test in this
instance.” Beltran, 222 F. Supp. 3d at 489.
Separate from the Mathews analysis, a related due process
concern is that, in the Court’s view, the circumstances
surrounding EHE’s arrest are circumspect.

Respondents have

provided the Court with a DHS warrant dated May 30, 2017, the
same day EHE was arrested. (See Warrant of Arrest at 2.)

The

warrant does not state the grounds for EHE’s arrest, and
Respondents have not articulated the grounds. (See id.; see also
28

Tr. of Hr’g at 15-16.)

At the time of EHE’s arrest, it appears

that the only evidence of his involvement with any gang is
SCPD’s self-serving observations that his “[c]lothing and
accessories are indicative of membership in MS-13” and that he
was “[r]egularly found associating with confirmed MS-13 gang
members.” (HSI Memo at 2; Form I-213 at 3-4.)

In and of

themselves, EHE’s choices of wardrobe and associates do not
constitute criminal offenses, and EHE has not been charged with
one. (See Tr. of Hr’g at 14.)

The complete absence of hard

evidence of EHE’s affiliation with MS-13 or any other gang
generates the inference that EHE’s arrest was merely a pretext
for placing him in detention.

Moreover, EHE has never been

convicted of any crime nor ever before been arrested. (See Form
I-213 at 3.)
Respondents argue that the Court should require Petitioners
to exhaust their administrative remedies.

However, they concede

that exhaustion is not a statutory requirement here and,
moreover, that one exception to a judicially imposed exhaustion
requirement arises when “a plaintiff has raised a substantial
constitutional question.” (Resp’ts’ Mem. in Opp’n at 13-14
(quoting Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003)).)
As explained above, Petitioners have raised a substantial
constitutional question related to EHE’s rights under the Fifth
Amendment.

Therefore, the Court will not require exhaustion.
29

Accordingly, the Court concludes that EHE’s right to
procedural due process has been violated.
E. Remedy
Petitioners challenge EHE’s detention and seek his
immediate release to Ms. Maldonado.

Federal courts have “broad

discretion in conditioning a judgment granting habeas relief.”
Hilton v. Brandskill, 481 U.S. 770, 775 (1987).

Other courts,

confronting similar petitions and requests for relief, have
ordered the immediate release of a child from ORR detention into
the care and custody of a parent. See Santos, 260 F. Supp. 3d at
615-16; Beltran, 222 F. Supp. 3d at 488-89.

Like Santos and

Beltran, this case implicates the right to family integrity. See
Santos, 260 F. Supp. 3d at 615-66; Beltran, 222 F. Supp. 3d at
489-90; see also Duchesne, 566 F.2d at 825 (“Th[e] right to the
preservation of family integrity encompasses the reciprocal
rights of both parent and children.”).

Likewise, EHE has

already been separated from his mother for many months—nearly
one year—and his reunification with his mother continues to be
delayed for an unknown period of time.
Although this case shares significant points of overlap
with Santos and Beltran, it also presents several unique
features that further support EHE’s immediate release.

Here,

before being arrested and transported to a facility across the
country, EHE was living with his mother. Cf. Santos, 260 F.
30

Supp. 3d at 601

(child entered the United States alone and "was

apprehended almost immediately"); Beltran, 222 F. Supp. 3d at
480

(child was arrested by U.S. Customs and Border Protection

age0ts "near the Mexican border").

Furthermore, as the Court

has explained, there is good reason to question the basis for
EHE's arrest in the first instance.

Accordingly, the Court

concludes that EHE's immediate release into Ms. Maldonado's care
and custody is appropriate, in lieu of mandating additional
process.
The Court finds that no additional relief is warranted.
Conclusion

For the reasons above, the Petition is GRANTED as to Count
1.

Counts 2 and 3 of the Petition are DENIED as moot.

Respondents shall immediately release EHE to the care and
custody of his mother, Gloria Escobar Maldonado.
The Clerk of Court is respectfully directed to close this
case and remove it from the docket of this Court.
SO ORDERED.
Dated:

New York, New York
May L} , 2018
United States District Judge

31