Re: Dkt. No. 51, 54, 58, 61
Thе federal government sometimes releases noncitizens on bond or parole while their removal proceedings are pending. Release reflects a determination by the government that the noncitizen is not a danger to the community or a flight risk. Once a noncitizen has been released, the law prohibits federal agents from rearresting him merely because he is subject to removal proceedings. Rather, the federal agents must be able to present evidence of materially changed circumstances — namely, evidence that the noncitizen is in fact dangerous or has become a flight risk, or is now subject to a final order of removal. And if the noncitizen disputes the notion
A small group of similarly situated non-citizens, however, has not been receiving comparable protections when rearrested. Specifically, some noncitizens enter the country as unaccompanied minors — that is, children with no parent or guardian available to care for them. Under existing law, the federal government- conducts- an assessment of the minor, and either keeps him in custody while his removal proceedings are pending or places him with a suitable “sponsor” in the United States. The sponsor is often a family member, and the minor’s placement with the sponsor reflects a determination by the federal government that the minor is neither dangerous nor a flight risk (and that such a placement is in the child’s best interest).
Recently, federal agents have been arresting noncitizens — including some minors who were previously placed with sponsors — based on allegations of gang involvement! Instead of giving those minors a prompt hearing to dispute that their detention is now justified based on changed circumstances, the government has been transferring them to different parts of the country for placement in high-security facilities .for an indefinite period.
The issue in this case is not whether federal agents may arrest and detain undocumented minors who truly are members of dangerous criminal gangs. If federal agents have probable cause to believe that a minor is a member -of a criminal gang, certainly that could be a “changed circumstance” that would justify detention, even if the government had previously determined that the minor was not dangerous. But there is no reason to deny these minors protections that noncitizens typically get after having been released on bond or parole. The, minors and their sponsors have the right to participate in a prompt hearing before an immigration judge in which the government’s evidence of changed circumstances is put to the test.. By shipping the.minors across the country for indefinite detention in a high-security facility before providing that hearing, the government has violated their due process rights.
Accordingly, for any noncitizen minor previously placed with a sponsor who has been arrested on allegations of gang activity, the government is ordered to provide a hearing before an immigration judge by no later than November 29, 2017, to allow the minor and his sponsor to contest the government’s evidence of changed circumstances. The- government must restore the minor to the ’sponsor’s custody if such evidence is lacking. Going forward, at least while this lawsuit is pending, the government is ordered to provide such a hearing within seven days of arrest of any such minor.
The plaintiffs have asked for further relief, and they have asserted additional legal theories. Further relief máy be warranted, but because the minors are clearly entitled to at least this due process protection, and bécause their need for that protection is time-sensitive, a рreliminary injunction on this issue is warranted at this time.
I.
In the Spring of 2017, agents from Immigration and Customs Enforcement
Some of the people arrested were minors. And ICE decided, after, making the arrests, that some of the minors fell within a certain legal category: “unaccompanied” minors. Under federal law, an unaccompanied minor is a child who comes across the border without any parent or. legal guardian in the United States available to. take care of ■ them. 6 U.S.C. § 279(g)(2). When DHS takes, custody of an uhaccompanied minor, federal law requires that agency to transfer custody of the minor to the Office of Refugee Resettlement (“ORR”), a division within a different cabinet-level agency, namely, the Department of Health and Human Services (“HHS”). The statutory purpose behind this transfer requirement is to provide special protections for unaccompanied minors, a particularly vulnerable group. In particular, Congress created this framework to address the concern that unaccompanied minors may be victims of human trafficking operations or other criminal activity, concluding that HHS was better equipped to assess and attend to the needs of these minors than DHS. The primary federal statute that confers this and other protections on unaccompanied minors. is called the Trafficking Victims Protection Reauthorization Act, or TVPRA. Pub. L. No. 110-457, § 235, 122 Stat. 5044, 5074-82 (2008) (codified at 8 U.S.C. § 1232); see also 6 U.S.C. § 279.
When an unaccompanied minor is taken into custody by DHS and then ORR, typically proceedings begin before an immigration judge (under the auspices of the Department of Justice) to decide whether the minor should be removed from the country. The TVPRA requires ORR to decide where to place the minor while the removal proceedings are pending. The statute requires ORR to place the unaccompanied minor “in the least restrictive setting that is in the best interest of the child,” considering, among other things, whether the minor is dangerous. 8 U.S.C. § 1232(c)(2)(A). ORR may release the minor to a “sponsor” who already lives in the country but was not with the minor when DHS picked him up — often a parent or relative — so long as the minor is not dangerous and the placement is otherwise suitable. If placement with a sponsor is not appropriate (either because there is no sponsor, or because the proposed sponsor is unsuitable, or because the minor is dangerous), ORR will detain 'the minor in a facility pending resolution of the removal proceedings. Id.; see also 6 U.S.C. § 279(b)(2)(B).
The facilities used by ORR have three security levels. The least'réstrictive level is a shelter facility, the medium level is a staff-séeure facility, and the most restrictive level is a.secure facility. The secure facility is akin to a local juvenile hall — in fact, ORR uses local juvenile halls to house the most dangerous unaccompanied minors, pursuant to contracts with local governments. See, e.g., Supp. Decl. of Julia Mass (June 23, 2017), Ex. 2 at 1-3, Dkt.
But under Operation Matador, the minors that ICE arrested and classified as “unaccompanied” minors were not your typical unaccompanied minors. That is, they were not people who just came across the border, with no parent or guardian immediately available to care for them. Rather, these minors had come across the border previously — often years before — as unaccompanied minors, and had already once been placed into the custody of ORR. As required by the TVPRA, ORR conducted an assessment of these unaccompanied minors shortly after they arrived, to determine where they should be placed while the federal government decided whether to remove them from the country. And it appears that for each minor, ORR made the determination that the minors should be placed' with sponsors rather than detained. Placement was often with parents who were eventually identified as already living in the country. In other words, the federal government' had already determined, some time previously, that the minors arrested in Operation Matador were not dangerous.
Three of those minors are now part of this lawsuit, although initially it was only one. The first minor, who goes by the initials A.H., came into the country from Honduras in 2015, unaccompanied by a parent or. guardian. Decl. of.A.H. (June 22, 2017) at 2, Dkt. No. 8. He fled an abusive father, and shortly after arriving in the United- States he was .placed in an ORR facility , in New York. Approximately one month later, ■ ORR released A.H. to live with his mother in Long Island, where he remained until this past June. Id. at 2-3. A.H. had two encounters with the criminal justice system during this time. The first was an incident with a fellow student at his high school that resulted in charges of menacing and possession of a weapon, both of which were adjourned in contemplation of' dismissal after A.H. completed a pre-plea community service program. The second was a low-level charge for possession of marijuana', which also was adjourned in contemplation of dismissal. Decl. of Stephanie Gibbs (June 22, 2017) at' 4-5, Dkt. No. 1Ó. According to A.H., a friend with whom he was arrested admitted to having been part of a gang in the past, but A.H. denied any involvement with gangs. Decl. óf A.H. (June 22,2017) at 3.
On June 12, A.H. was arrested by two plainclothes, ICE officers on the street near his house. A.H. was placed in a cell in Central Islip, Nеw.York, and then in a cell in Manhattan. Around 3:30 a.m. the next morning, A.H. was put on a flight to California. He was then taken to the Yolo County Juvenile Detention Facility in Woodland, California. Decl. of A.H. (June 22, 2017) at 3-5. The detention facility where A.H. was sent is run by Yolo.County, in the Eastern District of California, pursuant to a contract with ORR. Supp. Decl. of Julia Mass (June 23, 2017), Ex. 2 at 1-3. Prior to his transfer, DHS reported to ORR that A.H. was gang affiliated and
On June 22, 2017, while he was in the Yolo County Juvenile Detention Facility, A.H. filed this lawsuit, which was captioned as a “Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief.” He brought the lawsuit against a variety of federal defendants, including the Attorney General, the Secretary of HHS, and the Director of ORR. The lawsuit also named as a defendant ORR Federal Field Specialist Elicia Smith, who is located in San Francisco and is responsible for ensuring that the Yolo County Juvenile Detention Facility performs its obligations under the contract with ORR. Finally, the lawsuit named Brent Cardall, who, as Chief Probation Officer for Yolo County, is in charge of day-to-day operations at the Detention Facility.
As the caption implies, the lawsuit sought two different types of relief. First, it sought a writ of habeas corpus. The purpose of a petition for a writ of habeas corpus is typically to obtain release from custody, based on a wrongful conviction or some other unlawful detention. Second, A.H.’s lawsuit included a- request for declaratory and injunctive relief. That is, he sought a judicial declaration that his detention by the federal government was unlawful, and an injunction requiring the government to either release him or give him a prompt hearing to allow him to challenge the determination that he was dangerous and needed to be locked in a secure facility. He asserted several different legal theories, including under the Due Process Clause of the Fifth Amendment and the TVPRA. He also complained that ORR’s conduct was preventing him from participating in his ongoing immigration proceedings in New York. A.H. appeared to assert each of these legal theories in connection with his pursuit of habeas relief as well as his pursuit declaratory and in-junctive relief, although the lawsuit was unclear on this point.
Along with his lawsuit, A.H. filed an application for a temporary restraining order (“TRO”) in which he asked the Court to order ORR to release him, or at least to require that ORR give him an opportunity to contest the allegations that he was gang-affiliated or otherwise dangerous enough to warrant placement in a secure facility. The Court held a hearing on a very tight timeframe and ruled on the TRO application from the bench. The Court concluded that A.H. had raised serious questions: about whether the government
On August 11, an amended lawsuit was filed. The amended lawsuit is again a cоmbined petition for a writ of habeas corpus and a complaint for declaratory and in-junctive relief. But it adds two other minors in ORR custody — F.E. and J.G.— both of whom had previously been released by ORR to family members under sponsorship agreements. ICE arrested F.E. in Suffolk County on June 16, presumably as part of Operation Matador, and transferred him to a secure facility, Shenandoah Valley Juvenile Center in Virginia, three days later. Decl. of Bryan S. Johnson at 2, Dkt. No. 61-17. On July 6, F.E. was “stepped down” to a staff-secure facility in Fairfield, California, and on August 4, F.E. was further stepped down to a shelter facility in Lincolndale, New York. Decl. of James De La Cruz (Sept. 14, 2017) at 2. ICE also arrested J.G. on June 16 in Suffolk County. He was transferred the following day to the secure facility in Yolo County and, on July 26, was moved to a staff-secure facility in Tacoma, Washington. Id.; Decl. of J.G. at 4-5, Dkt. No. 61-9.
The lawsuit seeks relief for not just the three minors who are now bringing the action, but for a class of similarly situated minors in ORR custody. And the amended lawsuit names a wider array of defendants. Recall that AH.’s initial lawsuit named the Attorney General, officials in HHS/ORR, and the person in charge of the Yolo detention facility. The new lawsuit continues to name those people as defendants, but adds the Acting Secretary of DHS and other officials within DHS/ICE. It also adds Jose Esquivel, an employee of the private nonprofit organization BCFS Health and Human Services, which operates, pursuant to a contract with ORR, the Fairfield staff-secure facility that F.E. passed through. Esquivel is the interim program director of that facility.
The amended lawsuit also asserts a somewhat different series of legal theories (all of which, again, seem to be put forward in connection with both the request for habeas relief and the request for declaratory/injunctive relief). The first alleged legal violation is that the minors were unlawfully arrested in violation of the Fourth Amendment, the TVPRA, and the Administrative Procedure Act. (This new claim for unlawful arrest is why the amended lawsuit added the defendants from DHS/ICE — those officials were responsible for the arrests.) The second alleged legal violation is that the minors were deprived of their liberty without procedural due process, contrary to the Fifth Amendment. The third is that the minors were deprived of their liberty in violation
The federal defendants have filed a motion to dismiss the entire case, on a variety of. procedural and substantive grounds. The most significant procedural objections, described more fully below, are that there is no habeas jurisdiction in this judicial district with respect to any of the three minors, and that this district is also not the proper venue for their declaratory and in-junctive relief claims. Meanwhile, the two non-federal defendants (Cardall, the official who runs the Yolo County detention facility, and Esquivel, the employee of the nonprofit organization that operates the facility in Fairfield) have filed motions to dismiss on the ground that they are not proper defendants in this lawsuit.
In turn, the minors have filed a motion for a preliminary injunction, and they seek to' provisionally certify a class of unaccompanied minors for purposes of that motion. The minors contend that at least thirteen others have been arrested for similar reasons and are being detained without a meaningful opportunity to contest the basis for their detention. The minors assert only two of their legal theories in support of their request for a class-wide preliminary injunction: unlawful arrest and violation of procedural due process.
The minors and their attorneys ask the Court to rule quickly on their request for a .preliminary injunction. That is understandable — the minors are in custody, they’ve been in custody for sеveral months, now, and they contend the custody is unlawful. But the manner .in which this action was brought and then expanded (beginning with a combined habeas petition and complaint by A.H., then growing to a combined habeas petition and complaint by three different minors, held in three different facilities around the country, against an expanded group of defendants, seeking relief not merely for themselves but for all other similarly situated undocumented minors) creates a host of difficult and time-consuming procedural questions. This puts the Court in a difficult position. In an effort to balance the need for a prompt ruling on the request for preliminary in-junctive relief for minors being detained by the federal government against the need to ensure that such relief would be procedurally and substantively proper, this ruling addresses only the strongest claim for preliminary injunctive relief and only the one with no potentially significant procedural obstacles to granting that relief. The issues presented by the pending motions that are not decided in this ruling will remain under submission.
II.
As discussed, three people are now suing in this case. They have combined two distinct types' of action in this one lawsuit — a petition for a writ of habeas corpus and a complaint for' declaratory and in-junctive relief. They assert a variety of different legal claims, under a variety of
For the reasons that follow, A.H. may pursue habeas relief in this judicial district against Elicia Smith, the local ORR official. However, F.E. and J.G. may not pursue habeas relief in this district, because they have .not named the proper respondents, nor do the proper respondents reside in this district. Furthermore, F.E. and J.G. may not . pursue their claims, for declaratory and injunctive relief in this district, because venue is not proper for those claims. F.E. and J.G. are therefore- dismissed as named plaintiffs, without prejudice to refiling their actions in the appropriate jurisdiction.
The most difficult procedural question is whether A.H. may, in conjunction with seeking habeas relief in this district, pursue his action for additional declaratory and injunctive relief here. In light of the unusual circumstances of this case, the Court will exercise its discretion to adjudicate the. declaratory and injunctive relief claims under the doctrine of pendent venue, rather than requiring A.H. to pursue habeas relief in this judicial district while pursuing his closely-intertwined declaratory and injunctive relief claims in a different judicial district.
A.
The first question is whether A.H, may seek habeas relief in this district. The government contends there is no habeas jurisdiction here, because A.H.’s custodian at the time he brought his original lawsuit does not reside here. As the government notes, when A.H. brought his habeas claim, he was held in the Juvenile Detention Facility in Yolo County, which is in the Eastern District of California. This means, according to the government, that the proper respondent to A.H.’s habeas petition is the head of the Detention Facility. In support of its position, the government cites Rumsfeld v. Padilla, a case that structures the inquiry but which does not resolve whether this Court has habeas jurisdiction over A.H.
Rumsfeld v. Padilla applied the “immediate custodian rule” -to a habeas petition filed by a U.S. citizen detained in military custody in South Carolina. See id. at 430-32, 442,
Because Padilla had named the correct respondent, among other officials, the Court then turned to the question whether the Southern District of New York, the federal court in which Padilla’s petition was filed, had habeas jurisdiction over that petition.
Padilla refused to decide who the proper respondent is in the immigration detention context, and no controlling authority since has resolved the issue. See id. at 435 n.8,
Other courts have held that national-level policymaking officials are proper respondents.
Still other courts have concluded that the federal agent charged with overseeing the non-federal detention facility in which the noncitizen is held should be sued. See Khodr v. Adduci,
There is no compelling distinction between criminal custody and immigration custody as such. Courts holding that immigration cases should be treated differently, and that the Attorney General or Secretary of DHS should be the proper respondent in those cases, tend to base this conclusion on the fact that these national officials have the true authority to order the release of the detainee. But if that logic drove the “proper respondent” inquiry, Padilla would have come out differently. Under the logic of Padilla, thеre’s no reason to conclude that, if A.H. were confined in a detention facility administered by federal immigration officials when he brought his habeas petition, he could have named anyone other than the federal official acting as the warden of that facility.
But A.H. faced a different situation here: he was held in a facility run by an entity other than the federal government, pursuant to a contract with the federal government. Where a petitioner is held in a facility solely pursuant to a contract, rather than by the state or federal government itself, application of the immediate custodian rule must take account of that fact. See, e.g., Bogarin-Flores,
This case provides a telling example of the conflicts of interest that could arise under the government’s contrary rule. Were Cardall the only proper respondent to A.H.’s habeas'petition, he would presumably be tasked with defending the federal government’s decision to hold A.H. in custody. But Cardall, Who is not a federal actor and who is not represented by the Department of Justice in this case, has taken the position that the Yolo County Probation Department did not have just cause to keep most of the undocumented minors that passed through Yolo County prior to August 26, 2017 in secure custody. See Corkery Decl., Ex. C at 3; Corkery Decl., Ex. D, Dkt.. No. 61-3. Requiring Cardall to be the sole defender of the federal government’s interests under the circumstances would make little sense, Padilla, which held that the federal actor With immediate control over the petitioner was the proper respondent for a petitioner in federal custody, does not stand for the proposition that a person in what is indisputably federal custody should sue a county official like Cardall (or, as would be true in many eases, an employee of a private nonprofit organization) to seek habeas relief.
Therefore, A.H. properly sued Federal Field Specialist Elida Smith, the federal official tasked with enforcing the contract pursuant to which A.H. was held in Yolo County. ORR Senior Field Program Specialist Supervisor James De La Cruz agreed that it was Smith’s responsibility to make “sure that [ORR] policies regarding the custody of unaccompanied minors are followed by those county officials.” Cork-ery Deck, Ex. B at 80. She “has jurisdiction over the... detention of persons under ORR supervision within th[e] geographic area” including Yolo County, and her responsibilities include “ensuring] that children placed under the auspices of the Office[ ] of Refugee Resettlement receive the services required by the Office of Refugee Resettlement, and that the programs that are in [the], geographical.. .location assigned to her follow ORR’s policies and procedures.,...” Id. .at 54-55. Since it appears that she is the individual most immediately responsible for enforcing the federal contract under whose authority A.H. is held, she is the proper target of his habeas
What makes Smith the proper respondent with respect to A.H. is not any power to make binding decisions about A.H.’s custody. The record strongly suggests she had no such authority over A.H. when he was in her custody, just as the commander .of the brig in Padilla did not actually have legal authority to release Padilla. See Decl. of James De La Cruz (Sept. 14, 2017) at 1-2, Dkt. No. 54-3; Decl. of James De La Cruz (June 27, 2017) at 3-4, Dkt. No. 15-2. Although one can imagine a sensible contrary rule, Padilla instructs courts not to look to the official who exercises legal control over the petitioner where present physical confinement is at issue.
Because Smith is the proper respondent, this Court has habeas jurisdiction over A.H.’s habeas petition. So long as the proper respondent falls. within this Court’s.territorial jurisdiction, habeas jurisdiction exists. See Padilla,
B.
When the amended complaint was filed, J.G. and F.E. joined the case, and they
-In light of the interpretation of Padilla articulated above, J.G. and F.E. have not named the proper respondents to their habeas petitions—the Federal Field Specialists (or perhaps the directors of the regional offices) сharged with overseeing the contract facilities in which they presently -are held. Even had they named the appropriate federal custodians, it is unlikely that this Court would have habeas jurisdiction over them, as the proper respondents presumably are based in the Pacific Northwest and on the East Coast. Accordingly, J.G. and F.E.’s individual habeas petitions must be dismissed without prejudice. See Stanley v. Cal. Supreme Court,
C.
Although this Court does' not have jurisdiction over J.G. and F.E.’s, habeas petitions, their claims for declaratory and injunctive relief could in theory proceed separately in this district. But because venue is not proper in this district for these-additional claims, J.G. and F.E. will be dismissed entirely fi'om this case.
Because the defendants here have challenged venue, the burden is on the plaintiffs to demonstrate that' venue is proper in the Northern District of California. United Tactical Sys. LLC v. Real Action Paintball, Inc.,
The first inquiry is straightforward. There is no contention that J.G. and F.E. reside in this district. Both J.G. and F.E. lived in Brentwood, New York, prior to their arrests. Decl. of J.G. at 2, Dkt. No. 61-9; Decl. of F.E. at 1, Dkt. No. 61-11. When the amended complaint was filed, J.G. was detained in Tacoma, Washington, while F.E. was detained in Lincolndale,
The second inquiry is somewhat closer, but the Court ultimately concludes that only an insubstantial portion of the events giving rise to J.G. and F.E’s claims oсcurred in this district. “To determine whether a substantial part of the events giving rise to the claim occurred in the forum, the court first considers what acts or omissions by the defendants give rise to the plaintiffs’ claims.” United Tactical Sys. LLC,
Some of J.G. and F.E.’s declaratory and injunctive relief claims are predicated on their allegedly unlawful arrests by ICE agents in New York. The remainder are based on the absence of any process provided by DHS and ORR for ensuring a reliable factual basis for their rearrests and detentions in ORR facilities, with the minors arguing that they should have received a hearing either before they were arrested in New York, or immediately after they were arrested in New York and before they were transferred across the country. Every indication is that DHS and ORR handled J.G. and F.E.’s cases in accordance with nationwide agency policy, set in Washington, D.C. See Corkery Deck, Ex. E (HHS) at 3728-31, Dkt. No. 60-3; Corkery Deck, Ex. N. Pursuant to those challenged DHS and ORR policies, J.G. and F.E. were detained in various locations, each of which might give rise to venue but none of which was in the Northern District of California. J.G. was transferred to a secure detention facility in Yolo County, in the Eastern District of California, shortly after his arrest, and then to a staff-secure facility in Tacoma, Washington, where he remains. Deck of J.G. at 4-5. F.E. was first transferred to a secure facility in Shenandoah, Virginia, then to a staff-secure facility in Fairfield, California — also in the Eastern District — and finally to a shelter facility in New York. Deck of F.E. at 3-4. The evidence shows that ORR officials in Washington, D.C., and Phoenix approved each of these custody changes. Deck of James De La Cruz Deck (Sept. 14,2017) at 1-2.
Although none of these events took place in the Northern District, the plaintiffs contend that Smith’s involvement in J.G. and F.E.’s cases is suffiсient to constitute a “substantial part, of the events” giving rise to their claims for declaratory and injunctive relief. The plaintiffs allege that Smith “serves as the approval authority for transfer and release decisions” regarding the named plaintiffs and proposed class members, but the evidence does not bear out this allegation. Am. Pet. at 3, 5, Dkt. No. 31; see Doe 1 v. AOL LLC,
The record merely shows that Smith was ORR’s point of contact with Yolo County. She ensured that Yolo County was aware of ORR’s policies, facilitated communication between more senior ORR officials and Yolo County officials, and received feedback on the appropriateness of
It’s true that the venue statute “does not require that a majority of the events have occurred in the district where suit is filed, nor does it require that' the events in that district predominate.” United Tactical Sys. LLC,
The final inquiry under the venue statute turns on a related analysis: whether Elicia Smith, the only defendant who resides in the Northern District of California, is a proper defendant as to J.G. and F.E.’s declaratory and injunctive, relief claims. If she is, then it seems venue would be proper as to all the federal defendants. See 28 U.S.C. § 1391(e)(1) (providing that venue in a lawsuit against a federal officer exists “where a defendant in the action resides” (emphasis added)). But she is not a proper defendant.
As described above, Smith played a relatively minor role in the trajectory of the named plaintiffs’ arrest and custody. She was not involved in the New York arrests, nor is there any evidence she was involved in developing the current policy providing for the transfer of previously released non-citizen minors to secure ORR custody without prior notice and an opportunity to be heard. Accordingly, the declaratory and injunctive relief the plaintiffs seek — which aims to halt such arrests and impose a process for testing the factual basis for detaining a previously released minor — is not directed at Smith, who appears to have no policy-making authority and no ability to finally approve placement decisions regarding minors in the named plaintiffs’ position. See Am. Pet. at 35-37; Decl. of James De La Cruz (June 27, 2017) at 3-4. To the extent Smith might be implicated at all by the amended petition’s requested relief, it is only as to the request to release A.H. from custody, in other words, the habeas relief already discussed/ Smith is therefore not a proper defendant to J.G. and F.E.ls declaratory and injunctive relief claims. She thus cannot serve as the anchor to the Northern District of California that makes venue proper in this district for their non-habeas claims.
Finally, the fact that J.G. and F.E. seek to be named plaintiffs alongside
Therefore, along with their habeas claims, the . declaratory and injunctive relief claims by J.G. and F.E. are dismissed without prejudice. This means J.G. and F.E. are dismissed entirely as named plaintiffs from this lawsuit.
D.
.Notwithstanding the, conclusion . that there is habeas jurisdiction over A.H.’s petition in this district, whether venue is proper for A.H.’s additional declaratory and injunctive relief claims is a separate and difficult question. For the same reasons discussed ..above, Elicia Smith, the only defendant with a nexus to this. district, is not the proper defendant for the separate declaratory and injunctive- relief A.H. seeks.
Because there .appears to be no independent basis for venue, over declaratory and injunctive relief claims going beyond the relief sought -in A.H.’s habeas petition, venue in this district would have to arise under the- doctrine of pendent venue. Under this doсtrine, “[o]nce a court has determined that venue is proper as to one claim, it -may- exercise pendent venue to adjudicate closely related claims.” United Tactical Sys. LLC,
On the one hand, A.H.’s habeas petition is properly before this Court, and it’s quite clear that any additional declaratory and injunctive relief he seeks is closely related to the factual and legal bases for his habeas petition. The same witnesses and evidence are relevant to both sets of claims. Resolution of each requires this Court to identify DHS and ORR’s policies and practices concerning children released to sponsors who are later rearrested, as well as to evaluate the statutory, constitutional, and contractual limits that circumscribe those policies and practices. Where a case is built around a “single wrong, common issues of proof, and similar witnesses,” pendent venue is more likely to be appropriate. Am. Civil Liberties Union of N. Cal.,
On the other hand, additional defendants are implicated by A.H.’s claims for declaratory and injunctive relief, and pendent venue is generally invoked to decide additional claims between the same parties. See, e.g., Martensen,
Although it’s a close question, application of the doctrine of pendent venue is warranted here. A.H.’s habeas, declaratory, and injunctive relief claims challenge one course of conduct, carried out by various federal actors, and one part of his case is clearly before this Court; indeed, this Court may well be the only place he can bring his habeas petition. Moreover, the concerns that would normally attend application of pendent venue to claims against new defendants — namely, the inconvenience and expense imposed on the additional defendants — are attenuated where all the defendants objecting to venue are also federal officers. See Kings Cty. Econ. Cmty. Dev. Ass’n v. Hardin,
Having concluded that all of A.H.’s claims may proceed in this district, the Court must next determine whether to grant his motion for a preliminary injunction. And, because A.H. seeks relief on behalf of-a class of similarly situated minors in ORR custody, the Court must also decide whether it is appropriate to provisionally certify the plaintiffs’ proposed class for purposes of issuing a preliminary injunction.
III.
A.H. seeks, on behalf of the proposed class, a preliminary injunction to halt the practices giving rise to his unlawful arrest and Fifth Amendment procedural due process claims. He also seeks his own immediate release from ORR custody, on the theory that -his continued confinement violates his substantive due process rights and the Ffomconsent decree. Pis.’ Consol. Br. at 31 n.21.
To obtain a preliminary injunction, A.H. “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
In light of the time-sensitive nature of the claims at issue in this case, the Court addresses in this order only the claim on which A.H. is most likely to succeed on the merits: his procedural due process claim. The remainder of the claims on which A.H. seeks preliminary injunctive relief will remain under submission, as will the aspects of defendants’ motions to dismiss not addressed by this order,
A.
When the federal government has previously deemed an unaccompanied minor suitable for placement in the community with a sponsor, and when federal agents later arrest and detain the minor based on allegations of gang affiliation, the government cannot simply ship the minor across the -country and place him in a secure detention facility for an indefinite period. Rather, due process requires the government to give the minor a prompt hearing before an immigration judge or other neutral decisionmaker, where the goverhment must set forth the basis for its decision to rearrest the minor, and where the minor and his sponsor may seek to rebut the government’s showing.
As a threshold matter, it is clear, notwithstanding the government’s argument to the contrary, that minors like A.H. have procedural due process rights rooted in the Constitution. The arrests and detentions at issue raise questions regarding the extent to which a person is entitled to notice and an opportunity to be heard before being removed from the custody of a sponsor in the United States — often a parent or family member — and sent across the country to a juvenile detention facility. The Due Process Clause imposes limits on what the government can do under these circumstances. See Hernandez v. Sessions,
The government’s citation to Angov v. Lynch,
The government next contends that, even assuming minors like A.H. have constitutional procedural due process rights, its existing procedures adequately protect their rights. But the government understates the nature of the liberty interest possessed by these minors, as well as the degree to which existing procedures protect against the erroneous deprivation of that liberty interest.
To determine what due .process requires, courts consider: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge,
With respect to the private interest at stake, “[f]reedom from, imprisonment — from government custody,., detention, or other forms of physical restraint-lies at, the heart of the liberty” -the Due Process Clause protects. Hernandez,
Moreover, the government seems .to assume that minors like A.H. have no greater interest in freedom from dеtention than any noncitizen caught crossing the border. This ignores the context in which these detentions arose. The federal government has already made a determination that minors like A.H. should not be detained, and has therefore made a decision to place them with a parent or other sponsor in the community. There is, as discussed previously, a statute that requires the federal government to protect unaccompanied minors
Given the nature of the liberty deprivation involved, a minor previously placed with a sponsor by ORR cannot be rearrested solely on the ground that he is subject to removal proceedings. That the minor was subject to removal proceedings formed the basis of his first arrest; after DHS transferred the minor to ORR custody, as the TVPRA requires DHS to do on every occasion in which an unaccompanied minor is arrested, ORR determined that the appropriate place for the minor was not in federal custody. If DHS could, the day after a minor was released to a parent or other sponsor, arrest the minor on the same basis and restart the process, the TVPRA’s instruction tо place the minor in the least restrictive appropriate setting would mean little. See United States v. Holmes,
This is not to say that DHS may never rearrest, using a removability warrant, a minor previously released by ORR to a sponsor. But to be lawful, the arrest must be based on evidence that the circumstances relevant to that original release decision have changed. In other words, DHS must have probable cause to believe that, notwithstanding ORR’s prior determination, the minor is now a danger to himself or the community, or a flight risk. See 8 U.S.C. § 1232(c)(2)(A).
A similar rule governs DHS conduct in a closely analogous context, namely, when DHS arrests noncitizens previously released on bond or parole pending a removal decision. This includes, by the way, DHS rearrests of minors who are classified as “accompanied” rather than “unaccompanied.”
And when an accompanied minor (or other noncitizen) is rearrested after having been released on bond, he is entitled to a prompt hearing to ensure that changed circumstances indeed justify the rearrest. See Tr. of Oct. 27, 2017 Hearing at 148-49, 157-68. As counsel for the government stated during the November 9, 2017 oral argument, this “bond redetermination hearing” typically takes place before an immigration judge within seven to fourteen days. And at the hearing, DHS must make a showing of the changed circumstances that justify rearrest, and the rearrested noncitizen has the opportunity to rebut DHS’s basis for his rearrest and detention. Id.
If any noncitizen released on bond is entitled to this process, surely an unaccompanied minor placed with a sponsor is entitled to at least the same level of protection. ORR previously determined that the minor should be released to a suitable sponsor. That decision reflects its determination that the minor is neither dangerous nor a flight risk. See 8 U.S.C. § 1232(c)(2)(A). And because the minor cannot reasonably be rearrested absent a material change in circumstances, due process likewise requires that the minor receive a prompt hearing in which the government must show that these changed circumstances exist. At that hearing, the minor must have the opportunity to rebut the government’s showing, and, if he does so successfully, the neutral decision maker must have the ability to order a return to the status quo.
Although the government is in the best position to determine precisely how such proceedings are conducted, certain minimal protections are required to ensure that a minor is not erroneously taken away from his family, transported across the country to a high-sеcurity facility, and processed no differently from an unaccompanied minor first entering the country. For example, the sponsor, as well as the minor, must receive notice of the basis for the rearrest and an opportunity to be heard. The hearing must, consistent with existing practice for other immigrants rearrested on grounds of changed circumstances, take place within seven days of arrest, absent extraordinary circumstances. The hearing must take place in the jurisdiction where the minor has been arrested or where the minor lives, to provide a meaningful opportunity for the minor, his sponsor, and any existing counsel to rebut the factual basis for the minor’s rearrest and detention. This requirement will allow the parties to call necessary witnesses, and the hearing may even occur before the same immigration
The government has raised concerns about which federal, agency could keep .custody of the , minor from the time DHS arrests him until the hearing takes place. ,But the government can address these concerns consistent with its constitutional, statutory, and contractual responsibilities, On the one hand, the government notes that the TVPRA requires DHS to transfer custody of an unaccompanied minor to ORR , within 72 hours, except in exceptional circumstances. 8 U.S.C. § 1232(b)(3). But this provision would not prevent DHS from retaining custody of minors like A.H. in a facility appropriate for minors for up to seven days to give them a hearing before shipping them across the country to a secure ORR facility — the rearrest of a previously released minor, and the need for a prompt hearing on the propriety of that rearrest, is an “exceptional circumstance” that would allow DHS tó hold the minor for longer than 72 hours. On the other hand, the government expresses concern that if the minor is indeed transferred to ORR custody pending the hearing, then any ruling by an immigration judge repudiating the decision to rearrest the minor could not automatically result in the minor’s release. According to the government, the TVPRA requires ORR to conduct a reassessment of the sponsor’s fitness to care for the child once the child is returned to ORR custody. But it’s not at all clear why this is so — if an immigration judge determines that no changed circumstances justified the rearrest, this means the immigration judge has restored the status quo. The status quo is the decision ORR made previously, which is that the minor should be placed with the sponsor, whom ORR already deemed suitable.
The government contends that the process set forth above is not necessary, because current ORR procedures adequately protect against the risk of erroneous deprivation of liberty for these minors. At least on the current record, existing ORR procedures appear to be inadequate. A prompt hearing after rearrest before an immigration judge, like those already given to non-citizens rearrested after having been released on bond, is far better suited'to protect the liberty of minors placed with sponsors who are rearrested by federal agents on the basis of alleged gang affiliation.
Although current ORR procedures — the right to challenge a finding of dangerousness in a Flores bond hearing, the right to challenge a placement under the Administrative Procedure Act, and regular review by ORR to determine the appropriate security level — may be adequate for an unaccompanied minor first arriving in the country, they appear inadequate to protect against the risk of minors being erroneously taken away from their sponsors by federal agents through a program like Operation Matador. It’s not clear, for instance, that the sponsor with an interest in the minor’s release could participate in any of
In the absence of a prompt adversarial hearing of the type other rearrested non-citizens receive, there is a serious risk that minors who were appropriately placed with sponsors, in accordance with the TVPRA and the Flores settlement agreement, will — after rearrest on the basis of insufficiently substantial allegations Of gang affiliation — erroneously be placed into ORR custody, and without an opportunity obtain prompt relief. As the Ninth Circuit has recognized, “[djetermining whether an individual is an active gang member presents a considerable risk of error. The informal structure of gangs, the often fleeting, nature of gang membership, and the lack of objective criteria in making the assessment all heighten the need for careful factfinding.” Vasquez v. Rackauckas,
The record does not show that the current procedure permits the necessary ad-vérsarial factfinding process to ocсur close enough in time to the minor’s arrest, .thus making it significantly more likely that the minor will be sent across the country to a secure facility without sufficient evidence of dangerousness. In that event, the secure placement would not be reasonably related to a legitimate government purpose. See Hernandez,
Nor will these procedural protections impose any significant burden on the federal government. In fact, the process required by this ruling, which is similar to the process provided to noncitizens rearrested after release on bond, seems less cumbersome than attempting to subject these minors to a process that was designed for a different situation (namely, the situation where a minor is first picked up by the federal government after coming across the border and before a suitable caretaker has been identified). To the extent the procedural protections required by this ruling impose some additional burden, this burden is reasonable in light of the government’s, asserted interests in public safety and welfare, including the
It’s also worth recalling that this ruling applies only to situations whеre the government arrests a noncitizen minor without probable cause to believe he committed a crime. If there is probable cause to believe the minor actually committed a crime, local law enforcement may arrest him and charge him with the crime. Furthermore, federal immigration agents may arrest noncitizens for committing federal felonies. See 8 U.S.C. § 1357(a); Tr. of Oct. 27, 2017 Hearing at 21-22. But if federal agents choose to rearrest a minor based on something short of that — such as allegations of gang involvement or other changed circumstances that would warrant detention notwithstanding ORR’s prior determination that the minor should be placed with a sponsor — any cost of providing a prompt hearing before an immigration judge is far outweighed by the benefit of protecting against erroneous deprivation of liberty.
B.
A.H. has shown a likely deprivation of his constitutional rights. That is generally sufficient to demonstrate irreparable injury. See Hernandez,
In addition to the irreparable harm of the constitutional violation itself, A.H. has submitted evidence suggesting that the magnitude of the harm will increase as time goes on. According to the declaration of child psychiatrist Dr. Fortuna submitted by A.H. in support of his motion, the longer children remain in confinement, the more likely they are to experience lasting negative mental health repercussions. See Decl. of Dr. Fortuna at 9-10, Dkt. No. 61-8. Further, if the putative class members are still in detention when they turn eighteen, they will be transferrеd to ICE custody and lose the protections afforded to juveniles. Corkery Deck Ex. E (HHS) at 3729. Thus, the required showing of irreparable harm has been more than satisfied here.
C.
When the government is a party, the balance of the equities and public interest analysis generally merge. Drakes Bay Oyster Co. v. Jewell,
The government contends that the public’s interest in enforcement of the immigration laws weighs against an injunction here. But the added procedural protections required by this preliminary injunction will protect the interests embodied in immigration statutes directed toward minors. A prompt adversarial hearing after arrest will ensure that only those minors actually eligible for secure and staff-secure detention are held in such custody. It will also support the goal of the TVPRA and the Flores decree that minors be placed with a sponsor whenever it is in their best interest. As already discussed, any administrative burden this injunction places on the government is greatly minimized by the fact that the government already has a process in place for adjudicating allegations of changed circumstances for a different group of noncitizens who have previously been released — a process it simply hasn’t been using for this particular class of rearrested minors. And the burden is justified in light of the hardships endured by minors taken from their sponsors and placed in ORR custody. See id.
A.H. has thus shown that he is highly likely to succeed on the merits of his procedural due process claim, that he (and, as discussed below, others like him) will suffer irreparable harm in the absence of an injunction requiring a prompt hearing to test the basis of the government’s gang allegations, and that the equities and the public interest wеigh strongly in favor of issuing the injunction he requests. Even assuming that implementation of the hearing process described above constitutes a “mandatory” rather than a “prohibitory” injunction, A.H. is entitled to the relief he seeks. See id. at 998-99. The detention of minors without due process results in “extreme or very serious damage” to this vulnerable population that is not “capable of compensation in damages.” Id. at 999 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
IY.
As alluded to throughout this ruling, A.H. moved the Court to provisionally certify a class of similarly situated minors in conjunction with his motion for a preliminary injunction. Whether class treatment of A.H.’s claims is appropriate is determined by the requirements of Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes,
For the reasons that follow, the Court will provisionally certify, for the limited purpose of issuing a preliminary injunction, a class of noncitizen minors meeting the following criteria: (1) the noncitizen came to the country as an unaccompanied minor; (2) the noncitizen was previously detained in ORR custody and then released by ORR to a sponsor; (3) the non-citizen has been or will be rearrested by DHS on the basis of a removability warrant on or after April 1, 2017 on allegations of gang affiliation.
A.
To sucсeed in his motion for class certification, A.H. must show that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The government contends that A.H. has failed to identify a sufficiently large number of existing class members and has riot shown that joinder of all the class members would be impracticable.
•: The plaintiffs’ showing is sufficient to meet- the numerosity requirement for purposes of provisional class certification. The evidence suggests that at least 16 sponsored minors aside from A.H. already have been detained on the basis of alleged gang affiliation. Decl. of Trevor Kempner at 1, Dkt. No. 73-1; id., Ex. A (HHS) at 2572-802, Dkt. No. 82-2. Although this is not itself an especially large number of undocumented minors, there is evidence that additional class members-will be added. See Bruce v. Christian,
Furthermore, given the characteristics of the members of the proposed class, joinder of all the class members would be impracticable. See McCluskey v. Trustees of Red Dot Corp. Emp. Stock Ownership Plan & Tr.,
B.
A.H. next must'demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). To satisfy this requirement, A.H. must show that proceeding as a class will not only raise common questions but also will “generate common answers apt to drive the resolution of the litigation.” Wal-Mart,
The procеdural due process claim for which A.H. seeks class-wide preliminary injunctive relief is amenable to . common answers. ■See id. A.H., has shown “a common policy or practice” of rearresting sponsored minors using a removability warrant, on the basis of suspected gang affiliation, and then, transferring the minors
The Court does not, in provisionally certifying the class, purport to resolve whether every class member should be released from ORR custody; it seeks to determine whether DHS and ORR policies violate class members’ rights in a systematic way. This basic question is common to all class members, and the answer is the same for each. See Abdullah v. U.S. Sec. Assocs., Inc.,
C.
The typicality requirement is satisfied where the named plaintiffs claims “are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The government does not specifically dispute that A.H.’s claims are typical of the class, and for good reason.
A.H., like all of the proposed class members, was rearrested by ICE after having been placed with a sponsor by ORR. And, like all of the class members, he was placed in a secure facility by ORR on the basis of alleged gang affiliation. Although he has since been stepped down to a staff-secure facility, he has experienced the same trajectory of release, rearrest, and transfer back to ORR custody on the basis of gang affiliation that characterizes all the class members. His claims are therefore “reasonably coextensive with those of absent class members,” and, to the extent he has been harmed, he has experienced “the same or similar injury” as the unnamed class members. Parsons,
D.
To demonstrate that “representative parties will fairly and adequately protect the interests of the class,” the Court must determine (1) whether A.H. and his counsel “have any conflicts of interest with other class members,” and (2) whether A.H. and his counsel will “prosecute the action vigorously on behalf of the class.” Fed. R. Civ. P. 23(a)(4); Ellis v. Costco Wholesale Corp.,
The government does not dispute that A.H. and his counsel will adequately represent the class members’ interests. There is no reason to believe that A.H,’s interests, or those of his counsel, will conflict with those of the unnamed and similarly situated minors who are in the proposed class. A.H.’s declaration suggests he is aware of his role as a class representative and is
E.
A.H. has likewise demonstrated that the government “has acted or refused to act on grounds that apply generally to the class,” such that preliminary injunctive relief would be appropriate as to the class as a whole. See Fed. R. Civ. P. 23(b)(2). For purposes of class certification, the Court need not “examine the viability or bases of class members’ claims for declaratory and injunctive relief, but only to look at whether class members seek uniform relief from a practice applicable to all of them.” Rodriguez v. Hayes,
The evidence demonstrates that DHS and ORR have adopted policies that subject all sponsored minors alleged to be gang affiliated to rearrest using a remova-bility warrant, transfer to secure custody, and prohibition of their release to the sponsors previously charged with their care. Corkery Deck, Ex. E (HHS) at 3729-31 (stating, among other things, 'that “[a]ll [unaccompanied alien children] identified as having current or past gang affiliation are placed in secure facilities,” and that “[n]o current gang members are eligible for release to a sponsor from the program”); see also id. at 3407, 3549; Corkery Decl., Ex. B at 53:6-54:4. This preliminary injunction clarifies how the federal government must treat those people after they’ve been rearrested. Because a single injunction can protect all class members’ procedural due process rights, the requirements of Rule 23(b)(2) are satisfied. See Wal-Mart,
Because A.H. has met the requirements for provisional certification of an injunctive relief class, and because he has shown that a preliminary injunction is warranted to remedy the procedural due process violation he has alleged, the Court orders a prompt hearing not only for A.H. but for all members of the class.
V.
In conclusion, for the reasons discussed above, the motion for a preliminary injunction on behalf of a class of noncitizen minors is granted to remedy the government’s likely violation of the class members’ procedural due process rights. The government is ordered to provide A.H. and all other noncitizen minors previously released to a sponsor who were rearrested and are currently in federal custody based on allegations of gang affiliation with a hearing before an immigration judge by no later than November 29, 2017, to challenge thе basis for those allegations, in conformity with the requirements set out in Part III.A of this order. The minor’s sponsor must receive notice and be given an opportunity to participate in the hearing. At the hearing, the government must present evidence that the minor is a danger to the community, notwithstanding
The defendants’ motions to dismiss are granted as to the claims brought by F.E. and J.G. individually. The non-federal defendants, Brent Cardall and Jose Esquivel, are dismissed from the lawsuit. The federal defendants’ motion to dismiss is denied with respect to the procedural due process claim, and otherwise remains under submission. Also under submission are A.H.’s motion for class-wide preliminary injunc-tive relief on his unlawful arrest claim, as well as his request for his own release from custody.
IT IS SO ORDERED.
Notes
. As mentioned later, it's not clear whether ICE was correct to classify these minors as “unaccompanied minors” upon rearrest, at least to the extent the minors had been placed with sponsors who are parents or legal guardians, but both sides' assume that ICE was correct, and it’s not necessary to decide that question in the context of this motion.
. The menacing and weapons possession charges have since been dismissed. Pls.' Mot. To Further Supp. Record, Ex. 1, Dkt. No. 99.
. Technically, A.H.’s mother has brought this lawsuit on behalf of her child (and the parents of the other two minors have brought suit on behalf of their children), because minors can’t bring lawsuits on their own. But for ease of reference this ruling describes the lawsuit as having been brought by the minors.
.Usually a habeas petition is brought separately from a complaint for declaratory and injunctive relief, but the government has not argued that it is improper to bring them together.
. The new petition/complaint also alleged a sixth claim for interference with the minors’ right to counsel, but the plaintiffs have since agreed to dismiss that claim. Pls.’ Consol. Br. at 19 n.7, Dkt. No. 61-1.
. The parties don’t' contest that, as to A.H., the relevant time period for purposes of determining the proper respondent is when he filed his initial habéás petition, notwithstanding his later transfer to a different facility and his decision to amend" his pleading after that transfer. See Mujahid v. Daniels,
. The Court made clear that the term "jurisdiction” as used in the habeas statute, 28 U.S.C. § 2241(a), and the Padilla opinion was not equivalent to subject-matter jurisdiction.
. In a pre-Padilla opinion that was later withdrawn, the Ninth Circuit held that the proper respondents to a habeas petition in the immigration context were the Attorney General and the Secretary of the Department of Homeland Security. Armentero v. INS,
. Particularly in a situation in which it is difficult to discern who has oversight responsibility with respect to a given contract facility, the director of the local office might also be a proper respondent. ¡
. It is true that Padilla states that a “core” habeas petition challenging present confinement should be filed in the “district of confinement.”
. It’s worth noting that, even though J.G, and F.E.'s individual сlaims were not properly brought in this forum, as members of the . proposed class, they could still benefit from relief granted on a class-wide basis.
. There is¡ to be sure, some tension in saying that a person can be a proper respondent— indeed, perhaps the only proper respondent— to a habeas petition and yet án improper defendant to the same petitioner’s claims for declaratory and injunctive relief targeting the same official actions that resulted in the allegedly unlawful detention. This tensión appears to be a natural result of the Supreme Court’s instruction to name not the person exercising legal control over a habeas petitioner as the respondent but instead the ímmediáte custodian.
. Because the allegations against the two non-federal defendants, Cardall and Esquivel, are based only on their roles as one-time custodians of A.H., F.E„ and J.G. under federal contract, and because they are not the proper respondents for any of the named minors’ habeas petitions, Cardall and Esquivel’s motions to dismiss are granted.
. Because the parties agree that A.H. and the minors in the proposed class are properly classified as "unaccompanied alien children” notwithstanding their prior release to a sponsor, and because the accuracy of this classification does not matter for purposes of determining the minors' procedural due process rights, there is no need to decide in this ruling whether the parties are correct. Cf.D.B.,
. To the extent ORR has legitimate concerns about the sponsor’s suitability, its existing procedures, including coordination with state welfare agencies, would presumably be sufficient to address those concerns. See Tr. of Oct. 27, 2017 Hearing at 104-08. And, to the extent that the logistical difficulties associated with housing minors for the period between their rearrests and hearings prove daunting, the government could instead have a hearing before arresting them in the first place. See Zinermon v. Burch,
. In addition to meeting the first prong of the preliminary injunction analysis, A.H.’s likelihood of success on his procedural due process claim requires the Court to deny the federal defendants' motion to dismiss as to that claim.
. The plaintiffs initially requested certification of a similar class but limited to. those minors "who have been detained or would, if arrested, be considered for detention in” a secure or staff-secure facility under the over- ■ sight of the San Francisco Federal Field Specialist, Pis,’ Consol. Br. at 43, They then argued that "any Sponsored Unaccompanied] C[hild] who is arrested by ICE and referred to ORR with allegations of gang affiliation” would fall within the proposed class, because all minors with allegations of gang affiliation are referred to a secure facility Under current policy, and therefore are considered for placement in Northern California. Pis.’ Reply Br, at 25, Dkt. No. 73. In lieu of the plaintiffs' unwieldy definition, the Court concludes that a class definition clearly applicable to all non-citizen minors with the characteristics above is both advisable for purposes of administering the preliminary injunction and warranted on the facts of this case so far — facts which' show that the defendants have adopted a policy that applies to sponsored noncitizen minors nationwide. See Easyriders Freedom F.I.G.H.T. v. Hannigan,
. Makini Brice, More Than 200 Arrested in U.S. Crackdown on MS-13 Gang, Reuters (Nov. 16, 2017), https://www.reuters.corn/article/us-usa-crime-gang/more-than-200-arrested-in-u-s-crackdown-on-ms-13-gang-id USKBN1DG32Z . [https://perma.cc/7QCG-68DC]; Operation Raging Bull, Immigration and Customs Enforcement, https://www.ice.gov/features/raging-bull [https://perma.cc/E3YQ-ETN4].
. Because this preliminary injunction neither enjoins nor restrains the proper operation of any part of Part IV of the immigration statutes, 8 U.S.C. § 1252(f)(1) does not bar the relief ordered. See Rodriguez,