Ninth Circuit Upholds Injunction of Some New Regulations Related to UACs

The Ninth Circuit has upheld the injunction of certain regulations related to unaccompanied alien children as inconsistent with the Flores agreement. First, the panel concluded that the provision allowing the Office of Refugee Resettlement (ORR) to place an unaccompanied minor in a secure facility (e.g., a state or county juvenile detention facility) if the minor is “otherwise a danger to self or others” is inconsistent with the Agreement. The court explained that the relevant statutory provision states that a minor shall not be placed in a secure facility “absent a determination that the child poses a danger to self or others,” not that ORR may place a minor in a secure facility whenever it makes that determination. Second, the panel concluded that the portion of the bond hearing regulations providing a hearing to unaccompanied minors held in secure or staff-secure placements only if they request one is inconsistent with the Agreement, which provides unambiguously for a bond hearing “unless the minor indicates . . . that he or she refuses such a hearing.” As to the DHS regulations regarding initial apprehension, processing, and custody of both unaccompanied and accompanied minors, the court held that some of the regulations relating to accompanied minors depart from the Agreement in two principal, related ways: (1) they limit the circumstances in which accompanied minors may be released, and (2) they provide for the detention of families together in facilities licensed not by states but by Immigration and Customs Enforcement itself.

The full text of Flores v. Rosen can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/29/19-56326.pdf

Sixth Circuit Defers to BIA on Jurisdiction over UAC Asylum

The Sixth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of M-A-C-O- and determined that an Immigration Judge properly assumed jurisdiction over the asylum application of an unaccompanied minor who did not file his asylum application until after his 18th birthday.

The full text of Cuellar Garcia v. Barr can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0178p-06.pdf

BIA Finds that IJ has Initial Jurisdiction over Aged-Out UAC

The Board of Immigration Appeals has determined that an unaccompanied minor who turns 18 before filing an asylum application must file the application with the Immigration Judge. In such instances, the Immigration Judge has initial jurisdiction over the asylum application, not the Asylum Office.

The full text of Matter of M-A-C-O- can be found here:

https://www.justice.gov/eoir/page/file/1101226/download

Ninth Circuit Orders Bond Hearings for Unaccompanied Alien Minors held in the Custody of the Office of Refugee Resettlement

The Ninth Circuit has held that unaccompanied alien minors held in the custody of the Office of Refugee Resettlement are entitled to bond hearings under the Flores settlement.  The passage of subsequent legislation did not invalidate the Flores agreement's requirement for bond hearings.  

As was the case under the Flores Settlement, the determinations made at these bond hearings held will not compel a child’s release. Regardless of the outcome of a bond hearing, a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement.  Immigration judges may assess whether a minor should remain detained or otherwise in the government’s custody, but there must 31 still be a separate decision with respect to the implementation of the child’s appropriate care and custody.  At the time the Flores Settlement was signed, it was the INS that was charged with ensuring that a child, regardless of a bond determination, was not released to an improper custodian.17 The only meaningful difference is that today it is ORR, not INS, which is responsible for performing that function. 

The full text of Flores v. Sessions can be read here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/17-55208.pdf

Ninth Circuit Dismisses Class Action Claim for Appointed Counsel for Unrepresented Minors

The Ninth Circuit has dismissed a class action lawsuit brought by unaccompanied minors seeking appointed counsel to represent them in their immigration proceedings.  The court determined that right-to-counsel claims can only be brought through the petition for review process - which follows the administrative immigration proceeding - and not through a district court action.  The court acknowledged the difficulty of expecting an unrepresented child to assert a right to counsel, but determined that the relevant jurisdictional statutes constrained their authority.  The court clearly expressed an expectation that a right to counsel claim will be brought through a petition for review, and called on Congress and the Executive to resolve this problem through the legislative process instead of waiting for judicial decision.

The full text of J.E. F.M. v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf

Fourth Circuit Denies Habeas Filed by the Mother of an Unaccompanied Minor

Dora Beltran filed a habeas as the next friend of her minor son, RMB.  RMB was granted VAWA deferred action based on his mother's abusive marriage.  RMB had a trouble adolescence, including criminal activity and gang affiliations.  When he was 14 years old, he ran away from home, and began working as a smuggler, assisting with the illegal entry of immigrants.  He was detained by Customs and Border Protection (CBP), and despite his mother informing CBP that he had been granted deferred action, CBP classified RMB as an unaccompanied minor and placed him in a juvenile detention facility.  When his mother requested that he be released into her custody, the Office of Refugee Resettlement (ORR) refused, finding her incapable of properly supervising and caring for RMB.

The Fourth Circuit found that RMB was properly classified as an unaccompanied minor because even though his mother was in the United States, she was not "available to provide care and physical custody.”  In addition, the court found it permissible for ORR to continue detaining RMB after an immigration judge terminated his removal proceedings because ORR could not locate a suitable guardian for him.  The court determined that RMB's continued detention did not unconstitutionally interfere with his mother's right to control his upbringing, but expressed concern that RMB may not have been given a meaningful opportunity to challenge his continued detention, and thus, his procedural due process rights may have been impinged upon.  Thus, the court remanded the case to the District Court to determine, in the first instance, if RMB was entitled to additional process.

The full text of D.B. v. Cardall can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/151993.P.pdf

I'm in the Los Angeles Times!

As I've posted about a couple of times, I've been working with a church group that cares deeply about immigrants' rights.  They are particularly passionate about protecting the rights of child refugees.  The group, called the Guardian Angels, was featured in the Los Angeles Times today.  A picture of me training some of their church volunteers is included with the print copy of the newspaper.  The article is on pages B-1 and B-5 of the LA Times. 

A link to the online article is here: http://www.latimes.com/local/california/la-me-guardian-angels-20150217-story.html