Santos v. Smith et al
MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 6/1/17. (med)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DILCIA SANTOS, as next friend of
O.G.L.S., a minor; and DILCIA SANTOS,
in her individual capacity,
TIMOTHY J. SMITH, Executive Director,
Shenandoah Valley Juvenile Center, et al,
Civil Action. No.: 5:17-cv-00020
By: Elizabeth K. Dillon
United States District Judge
This case involves a petition for writ of habeas corpus brought under 28 U.S.C. § 2241.
The petitioners are seventeen-year-old O.G.L.S. and his mother, Dilcia Santos. O.G.L.S., who is
a citizen of Honduras, is currently in the care and custody of the Office of Refugee Resettlement,
a division of the United States Department of Health and Human Services. He entered the
United States without inspection on or around December 15, 2014, and was found by U.S.
Border Patrol agents at the border in Brownsville, Texas. (Petition ¶¶ 13, 14, Dkt. No. 1; Mem.
Supp. Pet. (Mem.) Ex. E, Dkt. No. 7.) At that time, he was determined to be an unaccompanied
alien child (UAC), a determination that petitioners do not challenge. Consistent with the
statutory scheme designed to house and process UACs, O.G.L.S. was transferred to the custody
of ORR several days later and has been in ORR’s care and custody since.
Within days of her son’s arrival in the United States, Ms. Santos, who has lived in the
United States for more than a decade, filed a petition with ORR, asking to be reunified with her
son. ORR denied her petition and all of her subsequent requests for reconsideration. O.G.L.S. is
currently being housed at the Shenandoah Valley Juvenile Center (SVJC), which is a secure
facility in Staunton, Virginia, within this judicial district. Ms. Santos and O.G.L.S. allege that
their procedural and substantive due process rights have been violated by respondents, and they
seek O.G.L.S.’s immediate release from SVJC and ORR custody to the care of his mother.
As discussed herein, based on a number of different factors, the court concludes that
O.G.L.S.’s procedural due process rights have been violated, and so the court orders his
immediate release to his mother.
A. Factual Background
O.G.L.S. lived with his mother in Honduras until he was about five years old. He and his
mother were both physically abused by his father while he was a young child. When O.G.L.S.
was five, his mother fled Honduras and came to the United States, leaving him with relatives. In
an affidavit, she testified that she left him in Honduras because she was “afraid the trip to the
U.S. would be too difficult and dangerous for him at a young age” and because she knew that
“some people don’t survive.” (Reply Ex. C, ¶ 16, Dkt. No. 25.) She now lives in Kentucky, is
married, and takes care of O.G.L.S.’s three half-siblings, all of whom were born in the United
As respondents’ counsel acknowledged at the hearing, anyone with knowledge of
O.G.L.S.’s background would agree that he “has not had a very good chance at life yet.” Indeed,
he has experienced significant trauma in his short life. After his mother left Honduras, O.G.L.S.
endured severe physical abuse and neglect at the hands of some of his relatives. By the time he
was twelve years old, he was living occasionally with those relatives, but mostly on the streets or
Much of the record in this case is under seal, both because O.G.L.S. is a minor and because of the
sensitive nature of much of the information pertinent to ORR’s decision to deny reunification. By way of example,
this information includes allegations of criminal wrongdoing or disciplinary problems by O.G.L.S. and also detailed
psychological reports. In this opinion, the court purposefully has omitted a fair amount of detailed information in an
effort to maintain O.G.L.S.’s privacy.
staying with friends, and he was often dependent on gangs for both protection and daily
necessities. After a gang member befriended him and encouraged him to join the gang, that gang
exerted significant coercion to get O.G.L.S. to join and stay in the gang, including physical
violence against him and severe physical violence perpetrated against others in his presence. He
has admitted to both using illegal drugs and selling drugs as part of his gang activity. Also,
while in ORR custody, he described to his caseworker his involvement in other significant and
serious criminal activity as part of that gang, although months later he recanted those statements.
He has steadfastly maintained since then that he did not engage in the most serious of that
conduct. Since coming to the United States, he has repeatedly and consistently told people that
he wanted to leave the gang and flee Honduras, but that he was afraid to do so.
During the time he was in Honduras, he had regular (at least weekly) telephone contact
with his mother. His mother also sent money for his support. (Reply Ex. C, Santos Aff. ¶ 17.)
According to O.G.L.S., once his mother learned of the abuse he was suffering, she pleaded with
her relatives to use other, non-physical means of discipline, but because she was not physically
present, her pleas apparently had no effect. (Reply Ex. E, O.G.L.S. Aff. ¶ 10; see also Mem. Ex.
N at 3 (home study evaluator reporting Ms. Santos’s comments to the same effect).)2
When he was 14 years old, O.G.L.S. fled Honduras and entered the United States,
planning to join his mother in Kentucky. He entered without inspection and was apprehended
almost immediately. Because he entered the United States alone, he was considered a 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)(C)(ii). UACs are required to be transferred within 72
References to exhibit page numbers refer to the page assigned by the court’s electronic docketing system.
For example, the cite to page 3 of Exhibit N, which is Dkt. No. 7-14, is to page 3 of Dkt. No. 7-14, although it is to
page 2 of the report itself.
hours to the care of ORR, and O.G.L.S. was transferred to ORR custody, where he has remained
In March 2015, O.G.L.S. made the disclosures referenced above concerning his criminal
activities while part of the gang. As a result of these disclosures, ORR transferred him to a
“staff-secure program,” Heartland International Youth Center. One week later, he was
transferred to SVJC Secure, a “secure program,” where he has been since March 13, 2015. Two
months later, O.G.L.S. recanted those earlier admissions—first to his mother and then to a
counselor—and he has consistently maintained that he did not engage in that conduct. He also
has submitted an affidavit in this case to that effect. (Reply Ex. E, O.G.L.S. Decl., ¶¶ 38–44,
50, 52, 57.) He has continued to maintain that his recantation is the truth and that his initial
“confession” about his activities was not true.
Since he has been in ORR custody, O.G.L.S. has had some behavioral problems.
Although there have been a number of “significant incident reports” (SIRs) that involved him,
some of them involved his reports of his gang conduct or a concern over self-harm (which his
clinician ultimately determined was not grounds for any serious concern). Still others involved
incidents in which he was a victim of assaults by others or in which he avoided involvement in
physical altercations or removed himself from them. Petitioners admit, though, that over the
course of O.G.L.S.’s time in ORR custody, seven reports involved him in physical altercations
with staff or other juveniles, although some of those were instigated by peers. (See Resp. Ex. 1,
at 5, 13, 16, 27, 34–36, 54, Dkt. No. 21.)
One of these incidents also resulted in criminal charges being brought against O.G.L.S. in
juvenile court, but the charges were later dismissed in their entirety. In the dismissal order, the
state court noted its belief that O.G.L.S. was “adversely affected by 2 years in juvenile
detention” and that “he is a law abiding asset to society.”3 (Resp. Ex. 4, at 2.)
Ms. Santos filed a family reunification application with ORR on December 18, 2014, two
days after her son was apprehended. (Mem. Ex. F.) She included a copy of his birth certificate,
verifying that she was his mother. (Id.) In response, ORR conducted a psychological evaluation
of O.G.L.S. It also contracted for a home study of Ms. Santos’s home, which resulted in a report
dated March 3, 2015. (Mem. Ex. N.) That report recommended reunification, specifically
noting that “Ms. Santos [and her husband] will be positive influences on minor, and that he
should be released to their care.” It recommended a safety/transition plan to address both the
trauma in his home country and his admission of the significant criminal conduct (which he had
not yet recanted), and it said that any concerns his psychiatrist had should be shared with Ms.
Santos prior to his release.
Two days later, a brief update was added to the report that, despite his transfer to a
higher-security facility, the “positive recommendation for release to [Ms. Santos] has not
changed.” The update recommended, though, that O.G.L.S.’s clinician at his new placement
“assess when it is clinically appropriate” for him to be released to Ms. Santos and further
recommended post-release services.
Despite the completion of the home study report in March 2015, the ORR did not issue a
decision or respond to Ms. Santos’s request for reunification until May 31, 2016, more than 17
months after her petition was filed, and more than 14 months after the home study was
completed. (Mem. Ex. G.) The denial was a brief letter that stated in general terms the
Respondents argued at the hearing before this court that the state court did not have the entirety of
O.G.L.S.’s record before it and that the judge’s opinions are largely irrelevant to ORR’s determination. But they
also acknowledged that several reports in his ORR record suggest that at least some of his behavioral issues were
related to his continued detention at the juvenile facility. (See, e.g., Mem. Ex. U, at 4; Ex. T, at 2; and Ex. B, at 7.)
information that had been reviewed, and then gave three one-sentence reasons for the denial: that
O.G.L.S. “poses a safety risk to the community”; that “he requires an environment with a high
level of supervision and structure that [she is] unable to provide at this time”; and that Ms.
Santos was “unable to identify a care plan that would ensure the care and supervision necessary”
for his safety and well-being. (Id.)
In June 2016, Ms. Santos timely requested reconsideration (Mem. Ex. H), which was
denied approximately four months later. The denial discussed some of the general legal
standards applicable to ORR’s decision, noted the three reasons for the initial denial, and
provided two additional sentences setting forth some additional information that the decisionmaker considered or noted. This information included O.G.L.S.’s self-reported gang
involvement, his behavior while in care, and stated that he had since been “convicted of three
felony assault and battery charges for assaulting staff.” (Mem. Ex. I.) This latter fact was
untrue. At the time of that denial (November 4, 2016), there were charges pending against in
O.G.L.S. in juvenile court, but he never was convicted and those charges were later dismissed in
their entirety. That denial letter offered Ms. Santos the opportunity to review case file
documents if her son provided a release and also invited her to submit any additional materials
and any response by December 5, 2016.4
Once again, Ms. Santos submitted a response to the denial. (Mem. Ex. K.) This response
was detailed and cited specific portions of her son’s file, now that at least some of it had been
made available to her. Her response also pointed out the error concerning the alleged
convictions. (Id.) Approximately two weeks later, ORR again denied her request for
Although dated November 4, 2016, the letter was sent in an envelope postmarked November 30, 2016.
(Mem. Ex. J.) At this point, Ms. Santos had the benefit of counsel and was able to seek an extension of time to
respond given the late mailing. She filed a response on January 4, 2017, which ORR apparently deemed timely.
(Mem. Ex. K.)
reconsideration. The letter was virtually identical to the November 4, 2016 denial, and even
continued to include the erroneous statement that O.G.L.S. had been convicted of three felony
assault and battery charges. It also reiterated that O.G.L.S. “continues to require an environment
with a high level of supervision and structure that you are unable to provide at this time and his
custody is required to ensure the safety of others.” (Mem. Ex. L.) It noted, though, that ORR
had adopted a new policy on Review and Reconsideration of Release Denials and stated Ms.
Santos should contact the Office of the Director at ORR if she wished “further review of [her]
case in accordance with the new policy.” (Mem. Ex. L, at 3.)
She then requested an in-person hearing. After the hearing held by this court and in
response to the in-person hearing request, the ORR again denied release without a hearing in a
May 25, 2017 letter, albeit in a more detailed fashion than previously provided. (See Status
Report, Dkt. No. 29-1.) Specifically, this letter emphasized O.G.L.S.’s substance abuse and
other counseling needs, strongly implying that his needs were better met by ORR than by his
mother. It did not explain, however, why she could not provide these services. The denial also
reiterated ORR’s position that O.G.L.S. poses a risk to others.
At this point in time, O.G.L.S. has been held for more than 29 months, spanning years
that are a crucial time in a young person’s development. The parties agree that, throughout the
time O.G.L.S. has been in ORR’s custody, many people have advocated for his release to his
mother. For example, ORR appointed O.G.L.S. a child advocate, who serves as a sort of
guardian ad litem for him, recommending what the advocate believes is in his best interest in
terms of placement and services. In a report dated August 10, 2015, the child advocate
recommended that he “be reunified without delay to his mother, with the appropriate follow-up
services.” His child advocate has continued to recommend reunification, as have others,
including a physician who has examined him. (See Mem. Ex. U (summarizing recommendations
as of July 2016).) There are also reports, however, that suggest reunification should not be
immediate or that recommend denial of reunification because of the concern that O.G.L.S. may
present a danger to others. So, there is not unanimity of opinion on the issue, although the vast
majority of reports certainly support reunification.
B. Procedural Background
The habeas petition in this case was filed by Ms. Santos, both in her individual capacity
and as the next friend of O.G.L.S. She named as respondents Timothy J. Smith (the Executive
Director of the SVJC, Cristina Casado (ORR/DCS Program Manager at SVJC), Scott Lloyd
(Director of ORR),5 and Thomas Price (Secretary of DHHS).
The petition asserts three counts: (1) Ms. Santos’s “constitutional claim to family unity”
as a mother, brought in her individual capacity; (2) O.G.L.S.’s constitutional claim to family
unity; and (3) O.G.L.S.’s “constitutional claim to liberty.” All of the counts are premised on
alleged violations of substantive and procedural due process under the Fifth Amendment. (See
generally Dkt. No. 1.) In the prayer for relief, Ms. Santos requests that the court declare
unlawful ORR’s continued detention of, and custody over, O.G.L.S. and order his immediate
release to her custody. She also requests costs and attorney’s fees. (Id. at 6.)
The parties agreed to an expedited briefing process and have fully briefed the issue and
provided numerous exhibits for the court’s consideration. On May 16, 2017, the court held a
summary hearing pursuant to 28 U.S.C. § 2243, although the parties presented no additional
evidence at that hearing, only argument. See 28 U.S.C. § 2246 (allowing evidence to be taken by
affidavit); Hamdi v. Rumsfeld, 542 U.S. 507, 526 (2004) (discussing 28 U.S.C. §§ 2243 and 2246
Kenneth Tota, who was the acting director of ORR, was named in the petition, but Lloyd was substituted
pursuant to Fed. R. Civ. P. 25(d) when he became the new director. (Order of Substitution, Dkt. No. 28.)
and explaining that “the simple outline of § 2241 makes clear both that Congress envisioned that
habeas petitioners would have some opportunity to present and rebut facts and that courts in
cases like this retain some ability to vary the ways in which they do so as mandated by due
process”). At the hearing, the parties agreed that the court could consider the various exhibits
attached by the parties to their briefing when ruling on the petition, with one exception.
Specifically, respondents stated that they did not believe the court should consider the
declaration of Hayley Cleary, which provided what is essentially expert testimony concerning
the academic research and literature regarding risk factors for false confessions. (Reply Ex. I.)
The court gave respondents seven days from the date of the hearing to provide a supplemental
brief on this issue, but no additional brief has been filed and the time for doing so has passed.
Accordingly, the petition is now ripe for disposition.
A. General Legal Principles
The Fourth Circuit has recently addressed several of the issues raised in this case. D.B. v.
Cardall, 826 F.3d 721 (4th Cir. 2016) (Cardall). The Cardall court’s discussion included an
overview of the legal framework that governs the care and custody of UACs, including a
discussion of the historical development of that framework. Id. at 731–34. Rather than repeat
the details of that framework here, the court assumes the reader’s familiarity with it. Briefly
summarized, though, the government’s obligations concerning the care and custody of UACs
stem from two primary sources. First, there are two statutes that address those obligations: 6
U.S.C. § 279 and 8 U.S.C. § 1232, the latter of which was amended in 2008 by the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). Second,
ORR is bound, subject to changes in the applicable statutes, to abide by a court-approved
settlement agreement in a class action suit that was brought initially by several juvenile aliens in
INS custody (the Flores agreement). Cardall, 826 F.3d at 732.
Among other obligations, ORR must place a UAC in the “least restrictive setting that is
in the [UAC’s] best interests” and must review monthly placement decisions of any UAC in a
secure facility. Pursuant to the Flores agreement and the TVPRA, ORR should release to a
parent, if available, but only if ORR determines “that the proposed custodian is capable of
providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(b)(3)(A).
This court also has the benefit of the Eastern District of Virginia’s analysis after the
Fourth Circuit remanded the same case. Beltran v. Cardall, __ F. Supp. 3d __, No. 1:15-cv-745,
2016 WL 6877305 (E.D. Va. Nov. 22, 2016) (Beltran). Although there are some factual
differences between the Beltran/Cardall case and this case, and although respondents assert that
the district court’s decision on remand was incorrect, both opinions in that case are a focal point
of the parties’ briefing here. So, the court discusses them in some detail before turning to the
petition before it.
Unlike O.G.L.S., who was stopped at the border trying to enter the country and reunite
with his mother, the minor in Beltran had entered the United States illegally with his mother
when he was five years old, and he had lived in the United States for approximately eight years.
During that time, his mother became a lawful permanent resident, but the minor’s immigration
status was never adjusted. Instead, he had been granted deferred action as a derivative
beneficiary of his mother’s petition. In 2013, he ran away from his mother’s home and began
helping others smuggle undocumented immigrants from the Mexican border into the United
States. He was arrested while performing that job and, when he called his mother after his arrest,
she told the Border Patrol agent of his immigration status and said she had his papers. She got in
the car with the papers, but the agent called back and told Beltran to go home because the Border
Patrol had decided to detain her son and send him to a youth shelter. She alleges that when she
insisted she had the appropriate papers, the agent threatened to arrest her if she showed up. So,
at that time, she returned back home. Id. at 725–26.
The Border Patrol decided that the minor in Beltran was a UAC, and transferred him to
ORR custody. Id. at 726–27. Like Ms. Santos here, Beltran filed a family reunification request.
After the completion of a home study, the home study recommended against releasing the minor
to Beltran, concluding that the mother’s home “did not appear to be a safe and stable
environment,” noting the high risk of recidivism posed by the minor and stating that the mother
was unable to provide a safety plan for him. Id. at 727. Subsequent requests for reconsideration
were also denied. Id. The immigration proceedings against him were later terminated because
he had already been granted deferred action. Id. at 728. Thus, he simply remained in ORR’s
In the initial habeas proceeding, the district court rejected the mother’s statutory and
constitutional claims and denied her request for habeas corpus relief. D.B. v. Poston, 119 F.
Supp. 3d 472 (E.D. Va. 2015). On appeal, the Fourth Circuit concluded, as a threshold issue,
that § 2241 was the proper vehicle for bringing Beltran’s challenges to her son’s custody. It
reasoned that the issues pursued by her “on behalf of her son” fell within “the traditional scope
of § 2241 habeas corpus review.” Id. at 731.
After discussing the legal framework governing the care and custody of UACs, id. at
731–34, the Cardall court turned to Beltran’s statutory contentions, none of which are pertinent
here. It then turned to her constitutional claims. It noted first that Beltran’s substantive due
process claim invoked the “fundamental rights strand of substantive due process.” Id. at 740.
Specifically, she contended that ORR’s “refusal to release R.M.B. to her custody impermissibly
interfered with his fundamental right to family integrity.” Id. The government disagreed that a
fundamental liberty interest was at issue, relying on Reno v. Flores, 507 U.S. 292 (1993). Id.
The Cardall majority agreed with Beltran that the proceeding involved the fundamental
“interest of parents in the care, custody, and control of their children.” Id. (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000) (plurality opinion)). But it ultimately rejected her substantive
due process claim on the grounds that such claims have been allowed in this context only where
a challenged statute allowed a state to override the decisions of fit parents. Beltran had already
been determined by ORR to be incapable of providing for her son’s physical and mental wellbeing and thus “[t]hat determination suffices to address any substantive due process concerns.”
Id. at 741. The court reasoned:
when a state's interference with parental control is predicated on a
determination that the parent is unable to provide adequate care for
a child, such interference does not contravene substantive due
process, at least in the absence of governmental action that shocks
the conscience. Cf. Troxel, 530 U.S. at 68, 120 S.Ct. 2054
(explaining that “there is a presumption that fit parents act in the
best interests of their children” (emphasis added)).
Lastly, the court addressed the claim that Beltran’s son had been denied his right to
procedural due process because ORR failed to provide him with a proper hearing before a judge
or some other “impartial, competent adjudicator.” Id. The district court had reasoned, relying on
Flores, that the hearing the minor had before an immigration judge was sufficient process. It had
also concluded that the procedures provided by ORR were sufficient to satisfy constitutional
scrutiny. Noting factual distinctions between Flores and the case before it (including that there
were no immigration proceedings against Beltran’s son and that he was seeking release to a
parent, while the Flores plaintiffs were seeking to be released to unrelated adults), the Fourth
Circuit concluded that the district court erred in ruling that the minor’s claim failed under Flores.
Additionally, the Fourth Circuit rejected the district court’s determination that the available
family reunification request procedures were sufficient due process, although it likewise rejected
the contention that due process automatically required “a more substantial hearing.” Id. at 743.
Instead, the appellate court remanded to the district court to allow it to apply, in the first instance,
the proper legal framework for measuring the process due: the three-factor test set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976). Cardall, 726 F.3d at 743.
Under that framework, the three factors that the court must consider are: “(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. at 742 (quoting Turner v. Rogers, 564 U.S. 431, 444–45 (2011)).
On remand, the district court applied the Mathews test and concluded that ORR’s family
reunification procedures did not provide R.M.B. or his mother due process of law. Thus, the
court granted the petition and ordered R.M.B.’s immediate release. Beltran v. Cardall, No. 1:15cv-745, 2016 WL 6877035, at *1 (E.D. Va. Nov. 22, 2016). In doing so, the court made a point
to “emphasize the narrowness of its holding.” Id. at 11. Specifically, it stated that its analysis
was “confined to RMB’s case, which Respondents assure the Court is unique.” Id.
The parties disagree about the extent to which the Beltran/Cardall case should control the
outcome here. Petitioners contend that the court should follow the reasoning of the district court
in its opinion after remand, and respondents focus on the factual distinctions between that case
and this one. Before discussing those issues in the context of evaluating the due process claim
here, the court must address several threshold questions concerning the proper parties in this
B. Is Ms. Santos a Proper Petitioner?
Respondents contend that Ms. Santos may not bring a claim on her own behalf as part of
a § 2241 petition, and the court agrees. While she may be able to file a separate civil action
asserting such claims and seeking injunctive relief and/or damages, a general requirement of a
§ 2241 petition is that the petitioner be in custody. Ms. Santos is not. As all parties agree, she
may pursue a claim on behalf of her son in her role as her son’s next friend and may challenge
his detention on constitutional grounds. But because she is not in custody, she cannot bring her
own claim through a § 2241 petition. Thus, Ms. Santos’s individual claim, which is set forth in
Count 1, will be dismissed, and she will be dismissed from the case insofar as she seeks to bring
a claim on her own behalf.
The court notes, though, that this ruling does not preclude the court’s consideration of
Ms. Santos’s fundamental right to the care, custody, and control of her son, particularly given
that the Cardall court expressly considered the rights of the mother before it. This makes sense
from a practical standpoint, too: the rights of both child and parent stem from the right to family
unity. The ORR’s repeated denials of reunification, therefore, while resulting in only the
minor’s continued detention or custody, nonetheless affect his mother’s rights as much as his.
C. Who Are the Proper Respondents?
Respondents also argue that the only proper respondent is O.G.L.S.’s immediate
custodian, Smith, and that all other respondents should be dismissed. (Resp. 12–13, Dkt. No. 21
(citing Rumsfeld v. Padilla, 542 U.S. 426 (2004)).) In Padilla, which involved a habeas petition
brought by a U.S. citizen being detained as an enemy combatant, the court noted the proper
respondent in a federal habeas petition is generally “the warden of the facility where the prisoner
is being held, not the Attorney General or some other remote supervisory official.” 542 U.S. at
435. But in a footnote, the Padilla Court expressly declined to address “whether the Attorney
General would be a proper respondent to a habeas petition filed by an alien detained pending
deportation” and cited to a circuit split on the issue. Id. at 435 n.8.6 The case at bar is neither a
straightforward federal habeas petition nor an immigration proceeding, but some of the same
concerns that have animated the circuit split in immigration cases are implicated here. For
example, the court in Jarpa v. Mumford, 211 F. Supp. 3d 706, 723–25 (D. Md. 2016), appeal
filed, No. 16-7665 (4th Cir.), concluded that the immediate custodian rule did not apply in an
§ 2241 immigration case where the court was granting relief, because applying that rule “would
yield the ‘impractical result’ of having the immediate custodian (the Warden of a [private]
detention facility) unable to grant the relief requested.” There, the court reasoned that “the relief
sought can only practically be delivered by the head of the agency in charge of interpreting and
executing the immigration laws.” Id.
Similarly here, while Smith is the equivalent of the warden where O.G.L.S. is being
held, Smith houses O.G.L.S. only pursuant to a contract and apparently has no control over what
hearings or other processes ORR decides to provide. Although defendants cite to Smith’s
contractual obligation, pursuant to SVJC’s contract with ORR, as proof that he is the necessary
and only proper defendant, no party has provided a copy of the contract to the court. Further,
respondents’ counsel acknowledged at the hearing that Smith would not have authority to sua
sponte release a person from ORR custody absent a court order; instead, that would require a
directive from ORR itself. In light of these concerns, and particularly in the absence of evidence
Since Padilla, however, the circuit courts remain split and the Fourth Circuit has not yet ruled on this
issue. See Jarpa v. Mumford, 211 F. Supp. 3d 706, 723–25 (D. Md. 2016) (discussing issue at length), appeal filed,
No. 16-7665 (4th Cir.).
as to the precise contours of the contractual relationship, the court wants to ensure that the
respondents in the case will have the full authority to grant the relief ordered by the court.
Accordingly, the court believes that it is appropriate to retain as a respondent Scott Lloyd, the
Director of the ORR, who would be the individual who could direct that O.G.L.S. be released,
consistent with this court’s forthcoming order.7 Accordingly, the court will grant respondents’
motion to dismiss Casado and Price, but will leave Lloyd in the case.
D. Procedural Due Process Claim8
1. O.G.L.S.’s status as an alien stopped at the border does not mean he has no
constitutional due process rights in the context here.
Before turning to the three-prong test set forth in Mathews, the court must address a
threshold issue: whether O.G.L.S. has any constitutional right to due process at all. Respondents
assert that, because O.G.L.S. was stopped just after crossing the border and had not been in the
country very long, his due process rights are those proscribed by Congress in the TVPRA, and
that is all the process he is due. Essentially, they argue that he has no constitutional due process
rights.9 Specifically, they argue that “[a]liens identified at the border who have not had any
contact with the United States—even if they are subsequently paroled into the territorial United
States during the resolution of their claims for admission—are not entitled to any process other
than that provided by statute.” (Resp. 14 (citing Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 212 (1953).)
Lloyd also issued the most recent denial of release.
The petition itself also contains a substantive due process claim. The focus of the petitioners’ briefing
was directed toward procedural due process, and counsel indicated at the hearing that the primary focus was on
procedural due process. In light of this, and because the court concludes that O.G.L.S. has shown a violation of
procedural due process, it does not address his substantive due process claim. Cf. Cardall, 826 F.3d at 740–41
(considering but rejecting the petitioner’s substantive due process claim).
This issue was not addressed by the Fourth Circuit in Beltran because the facts there did not involve a
minor stopped at the border, but one who had resided in the United States, ran away from home, and then was seized
and treated as an unaccompanied minor.
As even petitioners acknowledge, the distinction between aliens who are stopped at the
border and not yet admitted, as opposed to those physically present in the country either legally
or illegally, runs throughout immigration law. See United States v. Verdugo-Urquidez, 494 U.S.
259, 270–71 (1990) (contrasting an alien who had just come here and not yet formed any
connection to the country with those who reside here, and stating that the Bill of Rights did not
confer any rights on an alien who had been in the United States for a small number of days).10
This distinction was emphasized in Zadvydas v. Davis, 533 U.S. 678, 693 (2001). There, the
Supreme Court stated that the Due Process Clause applies to “all ‘persons’ within the United
States, including aliens, whether their presence here is lawful, unlawful, temporary, or
permanent.” 533 U.S. at 693. See also Mathews v. Diaz, 426 U.S. 67, 77 (1976) (explaining that
due process applies to aliens within the U.S., even those whose presence is “unlawful,
involuntary, or transitory”). But the Zadvydas court went on to suggest that aliens stopped at the
border would not be subject to those protections, reasoning, based on the so-called entry fiction
doctrine,11 that persons stopped at the border are not physically present in the United States. 533
U.S. at 693 (distinguishing Mezei on this ground and explaining that there is a “distinction
between an alien who has effected an entry into the United States and one who has never entered
[that] runs throughout immigration law”). See also Devon A. Corneal, On the Way to
Grandmother's House: Is U.S. Immigration Policy More Dangerous Than the Big Bad Wolf for
Unaccompanied Juvenile Aliens?, 109 Penn St. L. Rev. 609, 656 & n.41 (2004) (suggesting that
In Verdugo-Urquidez, though, the court left open the question of whether the alien might claim Fourth
Amendment protection “if the duration of his stay were prolonged—by a prison sentence, for example.” Id. at 271.
The entry fiction means that even one who is stopped at the border but then detained within United
States territory (or even released into the United States but never admitted) is deemed not to have entered and to
have been stopped at the border. Thus, under the entry fiction doctrine, O.G.L.S. is deemed stopped at the border,
and that is all that matters. The fact that he has been physically present in the United States for more than two years
is irrelevant to his status under this doctrine.
the crucial distinction regarding rights is whether an alien is “deportable” or “excludable”; if
deportable, they have due process protections regardless of whether the alien’s presence “is
lawful, unlawful, temporary, or permanent,” but excludable aliens—aliens who have been
refused admission—are not entitled to the same protections). But see Clark v. Martinez, 543
U.S. 371 (2005) (holding that excludable alien (Mariel Cuban) who had been ordered removed,
but had no county to be repatriated to, could not be held indefinitely).
Petitioners contend, though, that the distinction has no application in the non-immigration
context here, where petitioner is challenging neither his admissibility/removability nor his
detention per se, but due process violations in the decision not to release him to his mother. The
The Supreme Court and lower courts have recognized that even excludable aliens are
entitled to some constitutional protections outside the immigration context. For example, the
Fifth Circuit has concluded that excludable aliens have a right to humane treatment while
detained and thus that due process under the Fifth and Thirteenth Amendments entitles them “to
be free of gross physical abuse at the hands of state or federal officials.” Gisbert v. United States
Att’y Gen., 988 F.2d 1437, 1442 (5th Cir. 1993) (quoting Lynch v. Cannatella, 810 F.2d 1363,
1373–73 (5th Cir. 1987)). Nor may they be punished at hard labor without due process of law.
Wong Wing v. United States, 163 U.S. 228, 238 (1896). Similarly, the Ninth Circuit has
reasoned that although an excludable alien is not entitled to due process protection with regard to
his exclusion or admission, that does not mean that he is categorically excluded “from all
constitutional coverage, including coverage by equal protection guarantees.” Alvarez-Garcia v.
Ashcroft, 378 F.3d 1094, 1098 (9th Cir. 2004) (citation omitted). See also Wong v. United
States, 373 F.3d 952, 974 (9th Cir. 2004) (“[T]he entry fiction does not preclude non-admitted
aliens . . . from coming within the ambit of the equal protection component of the Due Process
Clause.”); Jean v. Nelson, 472 U.S. 846, 873 (1985) (Marshall, J., dissenting) (explaining that
“[o]ur case law makes clear that excludable aliens do, in fact, enjoy Fifth Amendment
protections” and citing cases holding excludable aliens are entitled to due process protections at a
criminal trial and entitled to due process from unlawful takings).
Respondents have not identified any case holding that an excludable alien minor in
government custody pursuant to the government’s child welfare authority has no constitutional
right to due process to determine whether he should be released to his parent. Further, unlike the
distinction which is set forth in the Immigration and Nationality Act (INA) between “arriving
aliens” and those already present, no such distinction appears in the TVPRA, which is the statute
pursuant to which O.G.L.S. is in custody. Indeed, the TVPRA directs that UACs apprehended at
the border (except those from contiguous countries) shall be treated the same as those
apprehended elsewhere. 8 U.S.C. § 1232(a)(3). Furthermore, Ms. Santos’s rights to the care and
custody of her child are also clearly affected by ORR’s continued asserted custody over
O.G.L.S., and she has lived in this country for more than a decade. There is no assertion by
respondents that she is not entitled to due process protections.
In short, the court concludes that O.G.L.S.’s immigration status does not have any
bearing on his constitutional right to family unity.12 The court therefore believes he has due
process rights in this context and is entitled to due process protections before being deprived of
Although immigration proceedings are separate from the decisions challenged here, Cardall, 826 F.3d at
738 (holding that ORR’s responsibility for the care, custody, and placement of UACs is not limited to the pendency
of immigration proceedings), it is worth noting that O.G.L.S. continues to have possible avenues for remaining in
the United States legally. Perhaps most significantly, an immigration judge granted him asylum on May 17, 2017, a
decision that will become final within thirty days of that date if the government does not appeal the grant of asylum.
The parties agree that, once the grant of asylum is final, he would no longer qualify as a UAC, and ORR would lose
custody over him. Second, he has been granted special immigrant juvenile status. Thus, as his counsel explained at
the hearing, he has been placed on a waiting list for a visa and will be eligible to apply for permanent residence
status after a visa becomes available to him, although that process could take several years.
his right to family unity.13 Having so concluded, the court must then determine whether his due
process rights have been violated.
2. Applying Mathews v. Eldrige, O.G.L.S.’s due process rights have been violated.
At its core, due process consists of notice and the opportunity to be heard. Armstrong v.
Manzo, 380 U.S. 545, 552 (1965) (citation omitted). The opportunity to be heard, moreover,
“must be granted at a meaningful time and in a meaningful manner.” Id. As noted, Mathews
requires the court to consider three factors: “(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.”
Cardall, 826 F.3d at 742 (quoting Turner v. Rogers, 564 U.S. 431, 444–45 (2011)).
Turning to the first Mathews factor, the parties appear to agree that the private interests
implicated here include both the right to family unification and O.G.L.S.’s right to liberty.
Although respondents’ memorandum argued that the nature of the private interest at issue is not
the right to family unification, but whether O.G.L.S. should be released from the government’s
care and custody, counsel abandoned that line of argument at the hearing. Instead, counsel
conceded that there is a family unity right at stake here. This is also consistent with Cardall.
There, the court noted that “[t]his proceeding involves” the right of parents to the care, custody,
and control of their children, and a child’s “familial right to be raised and nurtured by [his]
parents.” 826 F.3d at 740. The court further defined both interests as “fundamental.” Id.
Respondents also suggested in their briefing that this case should be distinguished from
ones in which a child is removed from his parents’ home because O.G.L.S. and his mother had
not been residing together for many years. That is certainly true, and it is certainly a factor that
Given this finding, the court need not address O.G.L.S.’s liberty interest claim set forth in Count 3.
the court can—and will—consider in balancing the nature of the private interest. But the court
also notes that O.G.L.S. came to the United States with the knowledge and aid of his step-father
(Ms. Santos’s husband) in order to live with his mother. And O.G.L.S. and his mother had a
close relationship by all accounts, speaking at least weekly by telephone while they were living
apart. Moreover, almost every recommendation to ORR has recommended reunification, and
the home study visit was very positive about Ms. Santos’s parental fitness, as well as the fitness
of O.G.L.S.’s step-father. Thus, although the authority in which a child is removed from a home
is not directly on point, this is certainly a situation where there is an existing parental relationship
(although they have not resided together for years); where both minor child and parent want to
live together; where the parent has the ability to care for the child, at least according to many
sources; and where ORR has made the determination that they should not be reunited, primarily
because of the minor’s risk of harm to others and because he “remains vulnerable for a path that
would be detrimental to him and to others” due to his “fragile progress.” (Status Report, Ex. A
at 4 (ORR’s May 25, 2017 denial letter), Dkt. No. 29-2.) Thus, the interest in family
reunification remains fundamental, even on these facts, and is deserving of significant due
process protections. That fundamental right has clearly been impacted here, and for a significant
period of time.
As to the second factor, which is the comparative risk of an erroneous deprivation of the
private interest with and without additional or substitute procedural safeguards, respondents
argue that the risk of erroneous deprivation does not mandate a hearing or more fulsome
procedure than what ORR already provides. (Resp. 19.) Respondents also contend that, given
O.G.L.S.’s “vacillating disclosures” of his participation in violent gang activity, his mental
health issues, and his significant behavioral incidents, he has failed to explain how additional
procedures would “add value to this already comprehensive process by resulting in a less
erroneous outcome.” (Id. at 20.) Basically, respondents’ argument is that their decision is so
amply supported by the factual record that no additional process would have changed the
outcome. The court does not agree. Instead, as discussed next, the court believes that a more
fulsome process, with correction of some of the deficiencies alleged by petitioners, would
considerably lessen the risk of an erroneous deprivation.
Petitioners rely on the same alleged deficiencies that the Beltran court found.
Specifically, they identify four key deficiencies: (1) inadequate disclosure of the basis for the
action taken; (2) placement of the burden of proof, the burden to initiate proceedings, and the
burden to disprove ORR’s determination are upon the parent, rather than requiring ORR to
justify its determination to deprive the parent and child of their fundamental liberty interests; (3)
inordinate delay of determinations while continuing the deprivation; and (4) the absence of an
adversarial hearing by a neutral decisionmaker. (Mem. 11.)
The Beltran court found that the petitioner was not made aware of any of the evidence or
factual findings upon which ORR relied in retaining custody over the minor child and that ORR
explained its reasoning for its initial decision “only in exceedingly general terms.” Beltran, 2016
WL 6877305, at *6. The same is largely true here.
Respondents contend that the notice given here was much more detailed than in Beltran,
and so claim that is a distinguishing factor. But while the pre-suit denial letters here—Exhibits
G, I, and L—may have provided slightly more information than was given Beltran, overall the
lack of detail is very similar. The letters here are either a single page or a page and a paragraph,
and each one devotes only about two paragraphs to the specific findings and conclusions related
to O.G.L.S. And, much like in Beltran, they talk in very general terms; they do not identify the
specific information on which ORR is relying. So, while there may have been some additional
information conveyed here, relative to Beltran, the letters still did not give much detail.
Furthermore, as already noted, two of the denial letters specifically referenced incorrect
and untrue information as part of the rationale for the denial, saying that O.G.L.S. had felony
convictions for assaulting a staff member. In fact, though, and as respondents now admit,
O.G.L.S. has never been convicted of any criminal offenses. The fact that it took repeated letters
and a lengthy amount of time to correct this error suggests to the court that a more
comprehensive—and earlier—opportunity for a hearing in which Ms. Santos and O.G.L.S. could
have presented their case for reunification—could have resulted in a different outcome.
The court also agrees with the Beltran court that the respondents’ process improperly
placed the burden of initiation and persuasion on the petitioner. Respondents do not attempt here
to distinguish Beltran on this ground, nor could they, since the process was basically the same.
Moreover, the authorities cited by petitioners, although in different contexts, strongly suggest
that both a restraint of liberty and a continued separation of a child from a parent require that the
government bear the burden of proof. For example, in the context of both pretrial detention and
civil commitment, the government must establish the necessity of detention by clear and
convincing evidence. United States v. Salerno, 481 U.S. 739, 751 (1987) (pretrial detention);
Addington v. Texas, 441 U.S. 418 (1979). This is no less true where the government is claiming
detention is necessary due to dangerousness. Foucha v. Louisiana, 504 U.S. 71, 81 (1992)
(finding due process violation where an individual detained on grounds of dangerousness was
denied an adversarial hearing in which the state had to prove his dangerousness by clear and
convincing evidence); see also Va. Code Ann. §§ 37.2-800 et seq. (setting forth requirements for
involuntarily civil commitment of an adult, which includes a judicial hearing in front of a district
judge or special justice). Likewise, where Virginia’s child welfare agency seeks to keep a child
away from its parent, it bears the burden of proving that a parent poses a danger of harm to the
child. See, e.g., Va. Code Ann. § 16.1-252.E.1; Thach v. Arlington Cty. Dep’t of Human Servs.,
754 S.E.2d 922, 928 (Va. Ct. App. 2014).
While none of these situations are the precise context of this case, the types of process
afforded when the same rights are at stake strongly suggest that, at least when 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. The court concludes that this
difference in procedure could have a profound impact on results.
This court is also troubled by the very lengthy delays in processing Ms. Santos’s petition
for reunification and, in particular, the extensive delay in making an initial determination. The
Beltran court also noted that the delay in processing the family reunification request there
“raise[d] due process concerns,” but said the delay alone likely did not violate due process. In
that case, however, there was a delay of about two months between the filing of the reunification
request and the denial.14 Here, the delay was much more egregious: petitioners waited
approximately 17 months to receive a decision on the initial application for reunification (from
December 18, 2014 until May 31, 2016) and no explanation for that delay has ever been offered,
either to Ms. Santos or to this court.
Furthermore, during that time, the psychological reports and other reports in the record
reflect a worsening of O.G.L.S.’s psychological condition in some respects. Perhaps if the
reunification had been addressed more expediently, O.G.L.S. would not have had some of the
behavioral problems that he has had, which ORR is now relying upon to deny reunification. This
In that case, the reunification request was filed on January 10, 2014; it was denied in a brief
letter two months later, on March 12, 2014.
delay is especially noteworthy since most of his significant incident reports—and certainly the
most troubling ones—occurred in 2016, after he had been in custody for over a year. Notably,
moreover, several of the psychological reports and other notes in his file refer to his behavior as
likely being attributable in part to his placement at SVJC and his being kept away from his
mother for such a long time. The court finds the very significant, unexplained delay in
responding to the unification request to be extremely troubling and concludes that the delay,
even without other procedural deficiencies, violated due process.
As to the absence of a hearing, respondents point to cases that reject “the notion that a
live, trial-like hearing is the cure-all for all potential due process ills.” The Fourth Circuit’s
opinion in Beltran, likewise, rejected any contention that the petitioner there was automatically
entitled to a live hearing before a neutral decision-maker. But the Beltran court found, based on
the fact-specific inquiry required by Mathews, that in fact a hearing was required, or at least
would have made a difference. It is true that he emphasized the “narrow” scope of his decision,
based on the unique facts before him, but the facts there seem very similar to the facts here, and
in some ways the facts favor the petitioners even more here. In particular, the delay has been
longer in this case and two of the denial letters specifically cited incorrect information (that
O.G.L.S. had been convicted of felony assault and battery) as part of the rationale for the denial.
The court will not seek to define the parameters of such a hearing or to state what it must look
like. Under Mathews, it is enough that without the various deficiencies identified, and certainly
in combination, a more fulsome process could have resulted in a different outcome.
To summarize, the court concludes that, had better or more process been given
(especially as to the delay and the burden being on Ms. Santos to initiate and justify
reunification, rather than the default rule being otherwise), the outcome could have been
different. This is particularly true where the vast majority of the people or entities ORR asked
for advice on the issue recommended that O.G.L.S. be reunified with his mother, either
immediately or in the short-term, after working on other goals. So, while the documents do
contain some statements that O.G.L.S. could pose a risk of danger to others, overall the second
factor weighs in favor of petitioners.
The third Mathews factor requires the court to consider the “Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” It cannot be disputed that ORR has a
significant interest here, both in ensuring that it releases a UAC only when consistent with its
statutory mandate, and also in protecting the welfare of O.G.L.S. and the public at large. Given
O.G.L.S.’s admission of criminal activities while in Honduras and his behavioral problems while
in the custody of ORR, which include a number of physical altercations, it is certainly
reasonable, on some level, for ORR to want to keep O.G.L.S. where he cannot harm others.
But what respondents have not identified is what burden it would impose on ORR to
provide more process to O.G.L.S. (or children like him) and parents who seek reunification with
their children. In Beltran, ORR assured the court that the petitioner’s situation was “unique.”
Here, respondents have not made such a statement, but they also have not identified how many
individuals are in similar circumstances as O.G.L.S. so as to allow the court to identify the
burden on ORR of, for example, holding hearings, making more expeditious decisions, etc. The
only facts we have about this are the Beltran court’s finding that roughly 93% of children
entrusted to ORR’s care in 2014 (53,518 of 57,496) were released to custodians after only a brief
stay in custody and that fewer than 4,000 were in long-term custody. 2016 WL 6877035, at *10.
Of those, there was no indication how many were detained over the objection of an available
parent, such that it would implicate the fundamental right involved here and in Beltran. The
court does find it telling, though, that ORR has recently modified its policy and has indicated that
it will provide appeal hearings in cases like this one. That suggests to the court that the burden
would not be particularly significant.
Considering all the Mathews factors in combination, then, the court concludes that
O.G.L.S.’s rights to due process were violated and he is thus being held in violation of law.
Having determined that O.G.L.S.’s due process rights have been violated, the court next
considers the proper remedy for that violation. The case is styled as a habeas petition and
challenges O.G.L.S.’s confinement, and so O.G.L.S. seeks his immediate release to his mother.
Notably, that was precisely the remedy afforded on remand in Beltran. The remedy sought here
is an equitable remedy, and, in granting equitable relief, the court has “broad” powers, “for
breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 1, 15 (1971). Indeed, “[i]n equity, as nowhere else, courts eschew rigid
absolutes and look to the practical realities and necessities inescapably involved in reconciling
competing interests . . . .” Lemon v. Kurtzman, 411 U.S. 192, 200–01 (1973) (plurality opinion).
The court has considered whether it should give ORR additional time in which to provide
more fulsome process. But that would do little to aid O.G.L.S. or to remedy the violations the
court has found. O.G.L.S. will turn 18 in December and, at that point, will no longer be in ORR
custody. Much like the minor petitioner in Beltran, to conclude that his due process rights were
violated, but then allow ORR additional time to hold another hearing, would afford O.G.L.S.
empty, largely meaningless relief, given the proximity to his eighteenth birthday and the lengthy
delays that he and his mother have already endured as to their request for family reunification.
See Beltran, 2016 WL 6877035, at *11 (“Affording [the petitioners] additional process at this
point would therefore be of marginal benefit.”).
At the May 16, 2017 hearing, respondents’ counsel explained that, subsequent to this case
being filed, ORR has adopted a policy that could allow petitioners a live or video hearing before
an official with the Assistant Secretary for Children and Families, which is the umbrella agency
under which ORR falls.15 Although there was no indication when that hearing could or would be
held, respondents explained that the new policy would require a decision within thirty days.
Respondents requested additional time from this court to conduct that hearing, effectively
suggesting that this case be stayed while that process takes place. Petitioners countered that this
decision-maker was not a neutral arbiter and that, in any event, the offer of a video conference
was too little, too late. They did not agree to a stay of proceedings to allow ORR to pursue this
process. Given the court’s concern over the significant delay that has already taken place since
this case was filed and the absence of any agreement on the point, the court refused to stay the
case in order to allow additional process. The due process violations have occurred and, under
the specific facts of this case, cannot be cured at this point with a belated hearing.
On May 2, 2017, ORR Director Lloyd sent a letter to petitioners’ counsel stating that he intended to
review the case and that he would have an opportunity for appeal with the Assistant Secretary under section 2.7.8 of
the ORR Policy Guide. (Reply Ex. A (citing https://www.acf.hhs.gov/orr/resource/children-entering-the-unitedstates-unaccompanied).) The same letter stated that an appeal would not provide for an in-person hearing. But
according to counsel, a hearing by teleconference or video conference is now available. Likewise, on May 25, 2017,
Lloyd denied release and advised Ms. Santos that she could request an appeal with a hearing to be held by
teleconference or video conference. (Status Report Ex. A, at 5.)
For the foregoing reasons, the court will dismiss Ms. Santos as a petitioner and will
dismiss Count 1 of the petition. The court will also dismiss respondents Casado and Price, but
retains Smith and Lloyd as respondents. Based on the court’s conclusion that O.G.L.S.’s due
process rights have been violated and that the proper remedy is his immediate release to his
mother, the court will grant the petition as to Count 2, deny it as moot as to Count 3, and order
his release. An appropriate order will be entered.
Entered: June 1, 2017.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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