SAN FRANCISCO (CN) – A federal judge hinted Thursday he may advance a proposed class action accusing the Trump administration of scheming to jail and deport young Central American immigrants on “flimsy” allegations of gang affiliation.
U.S. District Judge Vince Chhabria said he “didn’t buy” the administration’s argument that the suit can’t proceed as a class action and must be dismissed following named plaintiff A.H.’s release from custody under a November 2017 preliminary injunction, which mandates that immigrant children who arrive alone in the United States and are later arrested on allegations of gang affiliation be given hearings before an immigration judge.
And he questioned whether classes can be certified on any of A.H.’s four claims, in part because the circumstances of each class member’s arrest and detention are too unique to justify class certification.
But Chhabria appeared to change his mind by the end of the three-hour hearing in San Francisco, suggesting their circumstances may in fact be similar enough to warrant certification of A.H.’s unlawful arrest and substantive due process claims.
“You do seem to be arguing in this case that that is effectively what is happening to all these class members, because ‘we have the authority to arrest them on the basis of removability alone,'” Chhabria told U.S. Justice Department attorney Sarah Fabian Thursday.
Chhabria was referring to the administration’s contention that it can rearrest unaccompanied immigrant children for violating civil immigration laws any time it wants and as many times as it wants, even after being deemed not dangerous and released into the custody of a U.S.-based guardian.
“That is an issue that seems to have been properly teed up in this litigation and is amenable to class treatment,” Chhabria told her.
A.H. sued the Trump administration in June 2017, after Immigration and Customs Enforcement officers arrested him outside his mother’s Long Island, New York home for alleged gang involvement.
According to the suit, he had been living with his mother in New York since being released into her custody in May 2015 by the Office of Refugee Resettlement (ORR). ORR is tasked with finding suitable U.S.-based guardians for unaccompanied minors pending a determination that the minor doesn’t pose a threat to the community. A.H., who fled an abusive father in Honduras, was deemed benign and released, the suit says.
A.H. claims ICE gave ORR “incomplete or incorrect” information regarding his 2017 arrest, including false accounts of two previous arrests for threatening his classmate with knife and for marijuana possession.
Although charges in both cases had been dropped, ICE allegedly told ORR the charges were pending, and that the knife arrest had occurred within the previous three weeks when it had actually occurred a year earlier. ICE also supposedly told ORR that A.H. was a “self-admitted gang member,” an allegation A.H. denies.
According to the lawsuit, ORR didn’t verify ICE’s allegations against A.H. Instead, it sent him to a high-security detention facility 2,500 miles away in Yolo County in Northern California without telling his mother. He was refused an immigration hearing to rebut the allegations against him until Chhabria ordered him released about six months later.
A.H. says his arrest was part of a larger push by the Trump administration to “arrest, detain, and transport children far from their families and attorneys, and to deny them immigration benefits and services to which they are entitled under U.S. law, based on flimsy, unreliable and unsubstantiated allegations of gang affiliation.”
Based on this allegation, he in part sought to certify a class of unaccompanied minors who were rearrested on a removability warrant based on allegations of “changed circumstances,” including allegations of gang affiliation, and a court order blocking rearrest “without reliable evidence of changed circumstances that are sufficiently serious and exigent to justify arrest.”
On Thursday, Fabian told Chhabria that “it sounds like [the class] would want notice of what changed circumstances there are,” which is “not Fourth Amendment relief.”
The argument sparked a contentious dialogue with Chhabria.
“For the unlawful arrest claim,” Chhabria replied, “you do take the position, do you not, that even if there is no allegation of any gang affiliation or any changed circumstances … on the basis of these removability warrants, ‘We have the right for any reason to arrest some minor who was last week released by ORR into the custody of a sponsor?'”
“Yes,” Fabian said.
“So your position is the federal government has the legal authority to take the minor into custody, determine they’re not dangerous, release them to the sponsor, and the following week rearrest them for no reason at all?” he asked.
“Yes,” she said.
“So they could rearrest them for no reason at all, send them back to ORR custody, ORR could again place them with a sponsor, and a week later ICE could again use a removability warrant to rearrest them?” Chhabria asked. “And this is the third time ICE is arresting them and twice ORR has determined the minor is not dangerous and placed them with a sponsor … There’s nothing precluding ICE from doing that?”
“ICE would have that authority,” Fabian said.
“And next week ICE arrests them a fourth time. There’s no legal impediment to doing that?” he asked her.
“Under the warrant authority, yes,” she replied.
“So, on and on and on, it could happen,” Chhabria said. “ICE could arrest them 1,000 times in a five-year period on removability authority. There’s nothing illegal about that?”
“No,” Fabian said. “Nothing comes to mind.”
“The Fourth Amendment doesn’t come to mind?” Chhabria said.
“I might dismiss this claim on mootness grounds,” he said. “But if I don’t do that and I’m deciding the merits of the claim … if your argument is, ‘none of the circumstances of the individuals matter at all because we have unfettered authority to arrest these individuals whenever we want'” … the claim “is amenable to class treatment.”
Chhabria likewise assailed Fabian’s argument for dismissing substantive due process claims over placement in high-security detention facilities. Noting her admission that ORR’s decision regarding where to detain a minor isn’t automatic, he suggested he might advance the claim.
“If the secure placement is not automatic, and it requires ORR to think about what it knows, how can you win on the motion to dismiss?” he asked her. “It seems the only way you can win the motion to dismiss on that claim is if [placement in a secure facility] is automatically permitted.”
But the claim’s survival wasn’t a certainty by the end of Thursday’s arguments. Chhabria repeatedly raised concerns over whether the claim would “collide” with the 1993 settlement agreement in Reno v. Flores – which in part mandates unaccompanied minors be placed in the “least restrictive” facility possible – and suggested class members instead seek transfer to lower-security facilities under Flores.
Arguing on behalf of the class, ACLU Foundation attorney Stephen Kang told Chhabria that the class’ substantive due process claim “could potentially get addressed in the Flores case.”
But, he said, “[w]e’d like the chance to convince you that the claim can be brought class-wide” under A.H.’s suit.
Chhabria took the motion under submission and did not indicate when he will rule.
In a written ruling issued later Thursday, Chhabria ordered the case remain stayed for the duration of the government shutdown.