Beltran v. Poston et al

Filing 51

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 11/22/2016. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
DORA BELTRÁN, AS NEXT FRIEND
OF R.M.B., A MINOR,
Petitioner,
v.
BRENT CARDALL, CHIEF PROBATION
OFFICER, YOLO COUNTY JUVENILE
DETENTION FACILITY, et al.,
Respondents.

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M E M O R A N D U M

1:15cv745 (JCC/JFA)

O P I N I O N

In December of 2013, U.S. Customs and Border
Protection agents detained RMB – a minor – and designated him an
“unaccompanied alien child.”

RMB was subsequently transferred

to the care of the Office of Refugee Resettlement (ORR) and
placed by that agency in “child welfare” custody.

His mother –

Petitioner Dora Beltrán – attempted to secure his release to her
care.

When ORR refused to release her son, she filed the

instant Petition for a Writ of Habeas Corpus.
On August 5, 2015, this Court denied the Petition and
Petitioner appealed.

The Fourth Circuit affirmed the judgment

in part, vacated it in part, and remanded the case for further
proceedings.

The Court is now tasked with applying the test set

out in Matthews v. Eldridge, 424 U.S. 319 (1976), to determine

1

whether ORR’s family reunification procedures afforded RMB and
Petitioner due process of law.
did not.

The Court concludes that they

Accordingly, the Court will grant the Petition and

order RMB’s release.
I. Background
A thorough description of the facts of this case may
be found in this Court’s prior opinion, D.B. v. Poston, 119 F.
Supp. 3d 472 (E.D. Va. 2015), and in the opinion of the Fourth
Circuit, D.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016).

The

Court therefore recites here only what is germane to its ruling.
Petitioner and her children entered the United States
illegally from Guatemala in 2005, when RMB was six years old.
After settling in Rio Bravo, Texas, Petitioner remarried.
Petitioner’s spouse was abusive.

As a result,

Petitioner applied for and received legal immigration status –
and eventually legal permanent residency – through the Violence
Against Women Act (VAWA).

In February of 2013, U.S. Citizenship

and Immigration Services granted RMB deferred action as a
beneficiary of his mother’s VAWA petition.

This did not confer

legal immigration status upon RMB, but did render his removal
from the country a low priority for the federal government.
RMB had a difficult childhood in Rio Bravo.
began using alcohol and marijuana.

2

At 10, he

By the time he was 13, he

drank heavily.

At 14, he was addicted to heroin.

See Rep. Exh.

7 [Dkt. 48-7] (“RMB Decl.”) ¶ 8.
RMB’s trouble with the law began at age 12.

He was

arrested for or charged with criminal mischief, runaway, theft,
burglary, assault, possession of marijuana, assault causing
bodily injury on a family member, and unauthorized use of a
vehicle.

Most of these charges were dismissed, although RMB was

prosecuted and placed on probation for making a terroristic
threat.

Four charges – unauthorized use of a vehicle, violation

of a court order, possession of marijuana less than two ounces,
and assault causing bodily harm – remain pending.
In July of 2013, Petitioner moved her family from Rio
Bravo to Corpus Christi, Texas – a distance of approximately 160
miles.

Petitioner hoped that the new environment would improve

RMB’s behavior.

In October of 2013, however, RMB ran away from

home and returned to Rio Bravo.

Once there, a friend helped RMB

to find work smuggling undocumented immigrants and illegal drugs
into the United States from Mexico.

At the time, RMB was 14

years old.
RMB attributes his troubles to the influence of older
youths who “worked for a cartel.”

RMB Decl. ¶ 5.

He claims

that these individuals “targeted” him, pretended to befriend
him, and provided him with the drugs to which he ultimately
became addicted.

Id. ¶¶ 5-8.

As a result, RMB found himself
3

working for the cartel to feed his habit.

Id. ¶¶ 8-9.

When he

attempted to extricate himself from the cartel, two older boys
drugged and sexually assaulted him while a third recorded the
assault with a cell phone.

Id. ¶ 11.

According to RMB, it was

Petitioner’s learning of this incident that prompted their
family’s move to Corpus Christi.

Id. ¶ 12.

RMB claims further that it was his addiction that
forced him to return to Rio Bravo, where he could obtain drugs
from the cartel.

Id. ¶ 12.

He states that he attempted to

leave the cartel and return home, but a cartel member drugged
him and forced him to watch videos depicting grisly deaths – the
clear implication being that this would happen to RMB and his
family should he choose to leave.

Id. ¶ 15.

RMB was therefore

forced to remain and continue working for the cartel.
On December 15, 2013, U.S. Customs and Border
Protection agents arrested RMB near the Mexican border.

He

informed one of the agents that he was there to aid in the
transportation of undocumented immigrants into the United
States.

According to RMB, he permitted himself to be captured

in an effort to escape the cartel.

Id. ¶ 16.

The agents permitted RMB to contact Petitioner, who
assembled her family’s immigration documents and began driving
to meet her son.

One of the agents, however, called Petitioner

and advised her that she should turn back and that her son would
4

be sent to a youth shelter.

When Petitioner protested, the

agent threatened to arrest her.
Shortly thereafter, U.S. Customs and Border Protection
determined RMB to be an “unaccompanied alien child,” or “UAC” –
a minor with no lawful immigration status whose parents are
unavailable “to provide care and physical custody.” 6 U.S.C.
§ 279(g)(2).

As such, it transferred RMB to the custody of ORR,

an agency of the Department of Health and Human Services charged
with the care of UACs.

U.S. Customs and Border Protection also

initiated removal proceedings against RMB, presumably unaware of
his deferred status.
On January 10, 2014, Petitioner submitted a family
reunification application to ORR.

The agency evaluated the

application and ordered a home study, which took place on
February 10, 2014.
On March 12, 2014, Petitioner received a brief letter
advising her that her application had been denied.
[Dkt. 11-7].

See Exh. G

The letter explained that “[p]rior to releasing a

child, ORR must determine that the proposed custodian is capable
of providing for the child’s physical and mental well-being.”
Id.

Because ORR had determined that RMB “requires an

environment with a high level of supervision and structure,” and
it did not “appear . . . that [Petitioner’s] home [could]
provide the structure and supervision necessary,” ORR would not
5

release RMB to his mother.

Id.

The letter further advised

Petitioner that she could request reconsideration within 30
days.
On March 11, 2015, after retaining counsel, Petitioner
submitted a request for reconsideration.

Several months later,

after initiating these proceedings, she received another brief
letter denying her request.

See Exh. H [Dkt. 11-8].

The second

letter largely reiterated ORR’s earlier findings, noting that
RMB suffers from various behavioral and psychological problems.
See id.
On April 15, 2015, RMB made his first and only
appearance in the immigration proceedings initiated by U.S.
Customs and Border Protection.

At the hearing, the immigration

judge terminated the proceedings in light of RMB’s deferred
status.
One month later, Petitioner filed the instant habeas
petition seeking her son’s release and naming as Respondents
Darryl Poston, Executive Director of Northern Virginia Juvenile
Detention Center;1 Robert Carey, Director of ORR; and Sylvia
Mathews Burwell, Secretary of the Department of Health and Human
Services.

Petitioner argued that RMB is not a UAC within the

1

On appeal, the Fourth Circuit permitted RMB to be
transferred to a California facility. As a result, the Court
substituted Brent Cardall – RMB’s current custodian – for Darryl
Poston pursuant to Federal Rule of Appellate Procedure 23(a).
See Cardall, 826 F.3d at 730 n.6.
6

meaning of 6 U.S.C. § 279(g)(2), and that his continued
detention violates both substantive and procedural due process.
This Court denied the Petition, and Petitioner
appealed to the Fourth Circuit.

The Court of Appeals affirmed

this Court’s judgment as to Petitioner’s statutory and
substantive due process claims, but remanded the case for this
Court to consider her procedural due process claim under the
test set out in Matthews v. Eldridge, 424 U.S. 319 (1976).
II. Legal Standard
“Writs of habeas corpus may be granted by . . . the
district courts . . . [but] shall not extend to a prisoner
unless . . . [h]e is in custody in violation of the Constitution
or laws or treaties of the United States.”

28 U.S.C.

§§ 2241(a), (c)(3); see also Bowrin v. U.S. Immigration &
Naturalization Serv., 194 F.3d 483, 487 (4th Cir. 1999) (“Since
its inclusion in the Judiciary Act of 1789, § 2241 has given
district courts jurisdiction to grant writs of habeas corpus to
petitioners who are held in custody by the federal government in
violation of the Constitution, laws, or treaties of the United
States.”) (citing 28 U.S.C. § 2241).
The district court “shall forthwith award the writ or
issue an order directing the respondent to show cause why the
writ should not be granted.”

28 U.S.C. § 2243.

“The person to

whom the writ or order is directed shall make a return
7

certifying the true cause of the detention.”

Id.

Ultimately,

“[t]he court shall summarily hear and determine the facts, and
dispose of the matter as law and justice require.”

Id.

III. Analysis
In its previous opinion, this Court identified the
right at issue in this case as “the alleged right of an alien
child who has no available parent, close relative, or legal
guardian . . . to nonetheless be placed in the custody of his
parent, who cannot, at this time, properly care for his mental
and physical needs.”
(E.D. Va. 2015).

D.B. v. Poston, 119 F. Supp. 3d 472, 487

This, the Court concluded, “cannot be

characterized as a fundamental right.”

Id.

The Fourth Circuit disagreed, finding that “[t]his
proceeding involves ‘perhaps the oldest of the fundamental
liberty interests recognized by’ the Supreme Court – ‘the
interest of parents in the care, custody, and control of their
children.’” D.B. v. Cardall, 826 F.3d 721, 740 (4th Cir. 2016)
(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality
op.)).

Moreover, the Fourth Circuit recognized that children

enjoy a reciprocal right to be “‘raised and nurtured’” by their
parents.

Id. (quoting Berman v. Young, 291 F.3d 976, 983 (7th

Cir. 2002)).

Whether children enjoyed such a right had

previously been “an open question in this Circuit.”

8

Stratton v.

Mecklenburg Cty. Dep’t of Soc. Servs., 521 F. App’x 278, 295
(4th Cir. 2013) (Gregory, C.J., concurring).
The Fourth Circuit noted that “[i]n most situations
. . . the constitutionality of state actions that interfere with
family integrity depends on the adequacy of the procedures
available to contest them.”

Id. at 741.

This determination is

typically made “under the balancing standard that the Supreme
Court articulated in 1976 in Mathews v. Eldridge.”

Id. at 742.

The Matthews test evaluates “(1) the nature of the private
interest that will be affected, (2) the comparative risk of an
erroneous deprivation of that interest with and without
additional or substitute procedural safeguards, and (3) the
nature and magnitude of any countervailing interest in not
providing additional or substitute procedural requirements.”
Id.
Finding that this Court did not apply the Matthews
test, the Fourth Circuit vacated the relevant portion of this
Court’s prior opinion and remanded the case on that issue. It
now falls to this Court to apply the test and determine what
process was due.
A. The Private Interest Affected
It is beyond dispute that Petitioner’s right to the
care and custody of her son – and RMB’s reciprocal right to his
mother’s care, see Cardall, 826 F.3d at 740 – is “deserving of
9

the greatest solicitude.”

Jordan by Jordan v. Jackson, 15 F.3d

333, 345–46 (4th Cir. 1994).

“The rights to conceive and to

raise one’s children have been deemed essential, basic civil
rights of man, and rights far more precious than property
rights.”

Stanley v. Illinois, 405 U.S. 645, 651 (1972)

(citations and alterations omitted); see also Weller v. Dep’t of
Soc. Servs. for City of Baltimore, 901 F.2d 387, 394 (4th Cir.
1990) (“It is clear that the private, fundamental liberty
interest involved in retaining the custody of one’s child and
the integrity of one’s family is of the greatest importance.”).
It is also apparent that Respondents’ actions have
encroached upon Petitioner’s and RMB’s right to family integrity
considerably.

Indeed, “[t]he forced separation of parent from

child, even for a short time, represents a serious impingement
on” that right.

Jordan, 15 F.3d at 345.

Petitioner and RMB

have been separated for nearly three years.

In light of the

right at issue and the magnitude of the government’s intrusion
upon it, Respondents must counterbalance the first Matthews
factor with a strong showing under the second and third factors.
B. The Risk of Erroneous Deprivation
The Court begins its evaluation of the second Matthews
factor by examining the context in which this case arises and
the process Petitioner and RMB have received to date.

10

With the dissolution of Immigration and Naturalization
Services (INS) in 2002, Congress entrusted the “the care and
custody of all unaccompanied [alien] children, including
responsibility for their detention, where appropriate,” to the
U.S. Department of Health and Human Services.
§ 1232(b)(1).

8 U.S.C.

The Department of Health and Human Services in

turn delegated that responsibility to the Office of Refugee
Resettlement.

This change in the law ensured that the federal

agency charged with caring for UACs had no stake or say in any
related immigration proceedings.

See 6 U.S.C. § 279(c); 153

Cong. Rec. S3001, S3004 (daily ed. Mar. 12, 2007) (statement of
Sen. Feinstein) (“This change finally resolved the conflict of
interest inherent in the former system that pitted the
enforcement side of the [INS] against the benefits side of that
same agency in the care of unaccompanied alien children.”).
When ORR takes custody of a child, it places the child
into a facility with security restrictions commensurate to the
risk ORR determines that child to pose to him or herself and
others.

See Poston, 119 F. Supp. 3d at 480-81 nn.7-9.

Since

assuming custody of RMB, ORR has held him in juvenile detention
facilities – the most restrictive available setting.

The Court

notes that this has largely deprived Petitioner of meaningful
contact with her son.

See Rep. Exh. 4 [Dkt. 48-4] ¶¶ 3-6.

11

ORR may place a child in its custody with a private
sponsor.

It may not, however, release a child to “a person or

entity unless [it] makes 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).

ORR must

additionally make “an independent finding that the individual
has not engaged in any activity that would indicate a potential
risk to the child.”

Id.

ORR requires potential sponsors to submit a family
reunification application.

The application consists of a short

form requesting certain basic information – for example, the
proposed sponsor’s relationship to the child, as well as his or
her income.

In accordance with ORR’s procedures, Petitioner

submitted this form on January 10, 2014, providing the
information requested.
Respondents claim in their brief that “nothing
prevent[ed]” Petitioner from submitting her own narrative
statement or other additional information with the application.
Opp. [Dkt. 47] at 7.

ORR’s form, however, does not apprise the

applicant of this opportunity.

Nor, for that matter, do any of

the other materials available to potential sponsors.

Indeed,

the Court can find no mention of this opportunity outside of
Respondents’ brief.

There is no indication in the record that

Petitioner had notice of this opportunity.
12

Once ORR receives an application, it begins a
background check on the proposed sponsor.

Respondents claim

that this process “require[s] the participation of the sponsor
him or herself, and thus provide[s] an opportunity for the
sponsor to explain to ORR why reunification would not pose a
danger to the UAC and is thus appropriate.”

Id.

Respondents do

not, however, explain further what this process entails.

There

is no indication in the record that Petitioner was contacted
during this process.

Respondents do not appear to contend

otherwise.
If, after the background check, a “proposed sponsor
clearly presents a risk of abuse, maltreatment, exploitation, or
trafficking to the child based on all available objective
evidence,” ORR will order a “home study.”
§ 1232(c)(3)(B).

8 U.S.C.

This entails an inspection of the proposed

sponsor’s home and a series of interviews conducted by an
independent contractor.

ORR ordered a home study in this case,

which took place on February 10, 2014.
Respondents describe this as a “collaborative” process
during which “the family member seeking reunification is . . .
able to provide the assessor with any information that he or she
thinks pertinent or important in evaluating the reunification
application.”

Opp. [Dkt. 47] at 8-9.

Petitioner disputes this

characterization of the process; indeed, she claims that the
13

scope and purpose of the home study were never explained to her.
See Traverse Exh. A [Dkt. 16-1] ¶ 22.
The contractor who conducted the home study ultimately
recommended against releasing RMB to Petitioner’s care.

Her

reasoning centered primarily on RMB’s behavioral problems rather
than Petitioner’s parental fitness. See Exh. D [Dkt. 11-4] at
13.2

Much of the support the contractor gathered for her

findings derived from interviews and other research conducted
outside of Petitioner’s presence, and apparently without her
knowledge.

See id. at 3-7.

It does not appear that the

contractor ever informed Petitioner of her findings, or that
Petitioner had an opportunity to contest them.

See Rep. Exh. 4

[Dkt. 48-4] ¶¶ 8-10.
A month after the home study, on March 12, 2014,
Petitioner received a short letter advising her that her
application had been denied.

See Exh. G [Dkt. 11-7].

The

letter explained that “[p]rior to releasing a child, ORR must
determine that the proposed custodian is capable of providing
for the child’s physical and mental well-being.”

2

Id.

Because

The independent contractor did note that Petitioner
was “unable to provide [a] safety plan for the minor.” Exh. D
[Dkt. 11-4] at 13. It is unclear, however, what this means.
The only “safety plan” the Court is able to find referenced in
ORR’s materials refers to a document provided by ORR to the
sponsor, not vice versa. It appears that Petitioner was never
apprised of the need for a “safety plan,” or what such a plan
entails. See Rep. Exh. 4 [Dkt. 48-4] ¶ 9.
14

ORR had determined that RMB “requires an environment with a high
level of supervision and structure,” and it did not “appear
. . . that [Petitioner’s] home [could] provide the structure and
supervision necessary,” ORR would not release RMB to the custody
of his mother.

Id.

The letter further advised Petitioner that

she could request reconsideration within 30 days.

It did not

include any further elaboration on ORR’s reasoning or the bases
for the agency’s conclusions.
The Court notes that, notwithstanding ORR’s
determination, Petitioner has not been declared an unfit parent.
The primary evidence in the record regarding Petitioner’s
parental fitness is ORR’s home study.

See Exh. D [Dkt. 11-4].

In it, Petitioner is depicted as a “concern[ed] and
motivate[ed]” parent, who successfully cares for RMB’s siblings.
Id. at 12-13.

The report recommends against releasing RMB to

Petitioner’s care in spite of, rather than due to, her capacity
as a parent.

The concerns expressed therein primarily relate to

RMB’s behavioral problems and Petitioner’s husband’s history of
spousal abuse.

The latter issue was addressed some time ago, as

Petitioner’s spouse moved out in 2014.

See Rep. Exh. 4 [Dkt.

48-4] ¶ 11.3

3

Petitioner did, however, once briefly lose custody of
her children. In December of 2012, Petitioner was pulled over
while driving a friend’s child to school. See Exh. D [Dkt. 114] at 10. When she informed the officer that she had left her
15

On March 11, 2015, after retaining counsel, Petitioner
submitted a request for reconsideration.

Several months later –

after initiating these proceedings – she received another brief
letter denying her request.

See Exh. H [Dkt. 11-8].

The letter

reiterated ORR’s earlier conclusions, noting that RMB suffers
from behavioral and psychological problems.

See id.

In sum, the record shows that Petitioner was afforded
(1) the opportunity to submit an application requesting that her
child be released to her, (2) the opportunity to address an
independent contractor sent by ORR to evaluate her parental
fitness one month later, and (3) the opportunity to request
reconsideration of the ORR’s adverse decision a month after
that.

This process exhibits several deficiencies.
The first relates to the notice component of due

process.

It is a principle that has “remained relatively

immutable” in due process jurisprudence “that where governmental

children home alone, the officer arrested her and informed Texas
Child Protective Services. See id. As a result, the state of
Texas removed Petitioner’s children from her custody for several
months. Petitioner regained custody of her children in May of
2013 after completing a court-ordered course on parenting. See
id. While troubling, Respondents do not contend that this
incident shows Petitioner to be an unfit parent. Indeed, for
Respondents to do so would largely contradict the findings of
ORR’s home study. Moreover, “[t]he fundamental liberty interest
of natural parents in the care, custody, and management of their
child does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the
State.” Santosky v. Kramer, 455 U.S. 745, 753 (1982).
16

action seriously injures an individual, and the reasonableness
of the action depends on fact findings, the evidence used to
prove the Government’s case must be disclosed to the individual
so that he has an opportunity to show that it is untrue.”
Greene v. McElroy, 360 U.S. 474, 496 (1959).
Here, it does not appear that Petitioner was made
aware of any of the evidence or factual findings upon which ORR
relied in withholding RMB from her care and custody.

Indeed,

even after ORR made that decision, it explained its reasoning
only in exceedingly general terms.

See Exh. G [Dkt. 11-7].

This opaque procedure deprived Petitioner of any opportunity to
contest ORR’s findings, and thus any meaningful opportunity to
alter its conclusions.
This procedural deficiency was exacerbated by the
unilateral nature of the proceedings before ORR.

When ORR

determined that it would not release RMB to his mother’s care,
it fell to Petitioner to change the agency’s mind.

When she was

unable to do so, it fell to her to initiate court proceedings.
The presumption was at all times that RMB would remain in ORR
custody.

At no point was the onus on ORR to justify its

deprivation of Petitioner’s fundamental parental rights.
Supreme Court and Fourth Circuit precedent hold that,
where parental rights are concerned, this manner of process is
inadequate.

Once the government decides to withhold a child
17

from a parent’s care, “the state has the burden to initiate”
proceedings to justify its action.

Weller, 901 F.2d at 396.

In Stanley v. Illinois, 405 U.S. 645 (1972), for
example, the Supreme Court invalidated a law under which the
children of widowed, unmarried men were automatically deemed
wards of the state, forcing their fathers to apply to regain
custody.

The Court held that while this sort of “[p]rocedure by

presumption is always cheap[ ] and eas[y],” where parental
rights are concerned, “it needlessly risks running roughshod
over the important interests of both parent and child.”

Id. at

656–57.
Similarly, in Weller v. Department of Social Services
for City of Baltimore, 901 F.2d 387, 395 (4th Cir. 1990), the
Fourth Circuit found that where “‘the continued separation of
the family by retention of custody [is] based on a unilateral
and untested evaluation of the mother’s fitness as a parent
. . . the state cannot constitutionally ‘sit back and wait’ for
the parent to institute judicial proceedings’” or “‘adopt for
itself an attitude of ‘if you don't like it, sue.’” Weller, 901
F.2d at 395 (quoting Duchesne v. Sugarman, 566 F.2d 817, 827-28
(2d Cir. 1977)).

The Court held that the onus must be on the

government, once it has decided to withhold a child from a
parent’s care, to justify its actions.

See id. at 396.

The

alternative is to risk “depriving individuals of a most basic
18

and essential liberty interest which those uneducated and
uninformed in legal intricacies may allow to go unchallenged for
a long period of time.”

Id. (quoting Duchesne, 566 F.2d at

828).
This general rule must accommodate the practical
realities of the situation before the Court, as due process is
flexible and fact-bound. See Jordan, 15 F.3d at 348.

RMB was

apprehended at the border alone, having run away from home.

It

would therefore have been impracticable to provide a hearing
before or immediately after taking him into custody.

Moreover,

the agency was not required to provide a hearing prior to
evaluating Petitioner’s family reunification application, as the
agency had not yet determined to withhold RMB from Petitioner’s
care.

Cf. Daniels v. Williams, 474 U.S. 327, 331 (1986)

(noting that due process concerns itself primarily with
“deliberate decisions of government officials”).

And while the

length of time ORR took to process Petitioner’s family
reunification application raises due process concerns, see
Jordan, 15 F.3d at 344-45, the Court allows that, given the
complex situation facing the agency, that delay alone likely did
not violate due process.
At a minimum, however, once ORR decided to withhold
RMB from Petitioner’s care, ORR “ha[d] the burden to initiate”
proceedings to justify its action.
19

Weller, 901 F.2d at 396; see

also Stanley, 405 U.S. at 656-57; Duchesne, 566 F.2d at 827-28;
Gomes v. Wood, 451 F.3d 1122, 1128 (10th Cir. 2006) (listing
cases).

At that point, ORR owed Petitioner some form of

adversarial process, and could not simply require Petitioner to
change the agency’s mind.

In other words, having determined

that it would deprive Petitioner and RMB of their fundamental
right to family integrity, ORR could not “adopt for itself an
attitude of ‘if you don't like it, sue.’” Weller, 901 F.2d at
395 (quoting Duchesne, 566 F.2d at 827-28).4
The Court’s conclusion that a substantial hearing was
required here is bolstered “by the character of the inquiry that
must be undertaken” in determining whether to release a UAC to a
parent.

Jordan, 15 F.3d at 347.

Adversarial hearings are

frequently required where “subjective judgments that are
peculiarly susceptible to error” are at issue. Id. at 347.
Whether a parent “is capable of providing for [a] child’s
physical and mental well-being,” 8 U.S.C. § 1232(c)(3)(A), is a
complex and subjective inquiry.

What care best suits the well-

being of a child has not been, and likely cannot be, reduced to

4

Respondents note that Petitioner could have sought
review of ORR’s final decision under the Administrative
Procedures Act. Given the foregoing discussion, as well as the
APA’s deferential “arbitrary and capricious” standard, see Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983), the Court finds that the availability of APA
review is of little constitutional significance here. See
Weller, 901 F.2d at 394.
20

a formula capable of producing a ready answer.

That ORR

undertook to make such a subjective judgment without any form of
hearing further deprived Petitioner of a meaningful opportunity
to present her case.5
Turning to Respondents’ Opposition, Respondents tout
the “fulsome” procedures ORR followed here.
at 2-10.

See Opp. [Dkt. 47]

Virtually all of those procedures, however, consisted

of internal evaluation and unilateral investigation.

In effect,

Respondents contend that due process was satisfied here because
ORR made a significant effort to reach the correct decision.
But due process does not concern itself only with the degree to
which one can trust the government to reach the right result on
its own initiative; rather, due process is measured by the
affected individual’s opportunity to protect his or her own
interests.

See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433

(1982) (“the Due Process Clause grants the aggrieved party the
opportunity to present his case”).
Respondents contend that Petitioner had an adequate
opportunity to do so here because “nothing prevent[ed]” or
“preclude[d]” or “prohibit[ed]” her from providing the agency
with whatever information she pleased.

5

See Opp. [Dkt. 47] at 7,

This is not to say that such a hearing would be
required where fundamental parental rights are not at issue, or
where ORR has not yet determined to deprive an individual of
such rights.
21

9, 25.

As discussed above, however, it does not appear that

Petitioner had notice of that opportunity.

Moreover, the Court

is unpersuaded that Petitioner’s not being “prevented” or
“precluded” or “prohibited” from presenting information –
particularly without first being apprised of the agency’s
specific concerns – constituted the sort of “fundamentally fair
procedures” required here.

Santosky, 455 U.S. at 754.

Respondents cite no case in which procedures
comparable to those described above were deemed adequate to
adjudicate fundamental parental rights.

Rather, Respondents

appear to argue that the cases upon which Petitioner relies,
such as Stanley, Weller, and Jordan, simply do not apply.
The Fourth Circuit, however, has already found that
“[t]his proceeding involves . . . ‘the fundamental liberty . . .
interest of parents in the care, custody, and control of their
children.’”

Cardall, 826 F.3d at 740 (quoting Troxel, 530 U.S.

at 65 (plurality op.)).

Respondents have deprived Petitioner of

that fundamental liberty interest, and RMB of his reciprocal
interest in his mother’s care.

The principles set out in

Stanley, Weller, and Jordan regarding what due process requires
when a child is removed from a parent’s care clearly have some
application here.
Respondents contend that the Fourth Circuit held
otherwise when it “reject[ed] [Petitioner]’s contention that due
22

process automatically required that R.M.B. be accorded a more
substantial hearing prior to [ORR] rejecting the family
reunification request.”

Cardall, 826 F.3d at 743.

in that holding, however, is “automatically.”

The key word

The Fourth

Circuit remained carefully agnostic as to what process was due,
leaving it to this Court to apply the Matthews test in the first
instance.

See id.

Indeed, just as the Fourth Circuit refused

to hold ORR’s procedures “automatically” unconstitutional, it
likewise declined to hold those procedures to be constitutional
on their face.

See id.

Respondents argue further that the cases cited above
do not apply because RMB was apprehended after running away from
home rather than physically removed from his household.
Respondents cite no legal support for this proposition, and the
Court fails to see its logic.

While RMB’s apprehension at the

Mexican border limited, as a practical matter, the process that
could have been afforded before RMB was taken into custody, that
circumstance has no apparent bearing on his continued detention
months later.

Respondents have not articulated any reason why

RMB’s flight from home would diminish RMB’s and Petitioner’s
constitutional interest in family integrity or the likelihood
that ORR’s procedures would erroneously deprive them of that
interest.

23

The Court notes as well that while RMB may have run
away to Rio Bravo, it is not clear that his decision to remain
there was his own.

RMB claims that he was coerced into staying

by a criminal cartel, and that he desired to return to his
family.

Moreover, RMB claims that he permitted himself to be

captured in an attempt to escape the cartel and return home.
Finally, Respondents contend that the “unique
situation” in which ORR found itself “renders the instant issue
sui generis such that the above authority” does not squarely
apply.

Opp. [Dkt. 47] at 22-23.

This appears to be a

legalistic way of claiming that ORR exercises all of the powers
of child protective services but is subject to none of the same
constitutional limitations.

The Court is unpersuaded.

Before moving on to the third and final Matthews
factor, the Court notes an additional wrinkle.

In her Reply,

Petitioner claims that her position on remand is that a hearing
only came due after the termination of RMB’s removal
proceedings.

The Court disagrees.

Pursuant to 8 U.S.C. § 1226, “an alien may be arrested
and detained pending” removal proceedings. Respondents, however,
do not cite that statute to justify their detention of RMB.
That is because, as this Court noted in its prior opinion, RMB
is not in “immigration detention.”
27-29.

See Mem. Op. [Dkt. 25] at

Rather, ORR has at all times held RMB in “child welfare”
24

custody pursuant to its authority under 8 U.S.C. §§ 1232(b)(1)
and 1232(c)(3)(A).

ORR has not withheld RMB from Petitioner’s

care due to pending removal proceedings; indeed, ORR was as
capable of returning RMB to Petitioner’s care during the
pendency of those proceedings as it is now.

ORR has instead

withheld RMB from his mother’s care due to child welfare
concerns.

The termination of removal proceedings against RMB

therefore has little bearing on the issue now before the Court.
See Cardall, 826 F.3d at 742 (“[T]hat R.M.B. was afforded a
brief hearing before an immigration judge is irrelevant to the
procedural due process claim, because [ORR] possesses the sole
authority to order his release.”); see also 153 Cong. Rec.
S3001, S3004 (daily ed. Mar. 12, 2007) (statement of Sen.
Feinstein) (noting that Congress intentionally withheld from ORR
any role in removal proceedings pending against UACs).
In sum, the deficient procedures employed by ORR
created a significant risk that Petitioner and RMB would be
erroneously deprived of their right to family integrity.

This

risk could have been mitigated by additional procedural
safeguards.

Given this risk and the magnitude of the private

interest at stake, Respondents must demonstrate that an
extraordinarily compelling interest justified ORR’s failure to
accord Petitioner and RMB additional procedures.

25

C. The Government’s Interest in Not Providing
Additional Process
Respondents note that “[t]he parent’s right to custody
is subject to the child’s interest in his personal health and
safety and the state’s interest as parens patriae in protecting
that interest.”

White by White v. Chambliss, 112 F.3d 731, 735

(4th Cir. 1997).

But while it is true that the government has

an interest in protecting the welfare of children, “the State
registers no gain towards” that end “when it separates children
from the custody of fit parents.”

Stanley, 405 U.S. at 652.

Indeed, when the government does so, it harms the interests of
all involved.

The government therefore “shares the parent’s

interest in an accurate and just decision.” Lassiter v. Dep’t of
Soc. Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (emphasis
added).

This does not present a “countervailing interest in not

providing additional or substitute” procedural safeguards here,
where their added benefit would have inured to both Petitioner
and the public.

Cardall, 826 F.3d at 742.

Respondents argue further that requiring ORR to
provide a hearing as part of its process would overwhelm its
resources, as the agency is charged with the care of many
thousands of children every year – 57,496 children in 2014
alone.

But nobody has suggested that due process requires “a

live, trial-like proceeding on each of these children before ORR

26

can proceed.”

Opp. [Dkt. 47] at 27.

This case concerns the

fundamental right of a parent to the custody of her child, and
that child’s reciprocal right to his parent’s care.

Where no

parent is seeking custody of their child, the cases cited above
have no application.
Moreover, in the vast majority of cases, ORR releases
children entrusted to its care rather than detaining them.

For

example, in 2014, 53,518 of 57,496 children – or roughly 93% –
were released to custodians after a relatively brief stay in ORR
custody.

Of the 3,978 who remained in ORR custody, there is no

indication in the record how many were detained over the
objection of a parent.

Even assuming that a significant

proportion was, the Court cannot say that the requirement ORR
provide an adversarial hearing in such instances would impose
the catastrophic administrative burden Respondents fear.
Whatever burden it would impose is not sufficient to overcome
the first two factors of the Matthews test in this instance.
Finally, the Court notes that at oral argument
Respondents’ counsel conceded that RMB’s position is unique.
The argument that providing a hearing would have entailed
significant administrative burdens therefore rings particularly
hollow.

27

D. Remedy
It appears this may be an instance of a square peg
meeting a round hole.

RMB’s case is unique, and so it is

unsurprising that the procedures ORR presently employs failed to
account for its special circumstances.
The Court will not undertake to design additional
procedures for ORR to follow in this case.

The Court is neither

competent to do so, nor inclined to encroach upon an area of the
law traditionally reserved to state courts.

Moreover, RMB has

already been held in ORR’s custody for nearly three years, and
is rapidly approaching adulthood.

Respondents’ counsel informed

the Court at oral argument that ORR will release RMB once he
turns 18.

Affording Petitioner and RMB additional process at

this point would therefore be of marginal benefit.
Federal courts have “broad discretion in conditioning
a judgment granting habeas relief.”
U.S. 770, 775 (1987).

Hilton v. Braunskill, 481

In light of the foregoing, the Court

finds that no conditions are warranted in this case.

The Court

will therefore grant the Petition for a Writ of Habeas Corpus
outright and require that RMB be released to Petitioner’s care
and custody.

Should Respondents believe Petitioner to be unable

to care for RMB, or that RMB presents a risk to himself or
others, they may refer the matter to appropriate state and local
authorities.
28

IV. Conclusion
The process afforded Petitioner and her son here did
not meet the test set out in Matthews v. Eldridge, 424 U.S. 319
(1976).

The Court, however, must in closing emphasize the

narrowness of its holding.
bound and flexible.

The due process inquiry is fact-

See Cardall, 826 F.3d at 743.

The analysis

above is confined to RMB’s case, which Respondents assure the
Court is unique.
For the foregoing reasons, the Petition for a Writ of
Habeas Corpus shall be granted.
An appropriate order will issue.

November 22, 2016
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

29