UNITED STATES DEPARTMENT OF JUSTICE EXECUTNE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT YORK, PENNSYLVANIA ) IN TIil!; MATTER OF Diego Respondent

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IN BOND PROCEEDINGS

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ON BEHALF OF RESPONDENT: Bridget Cambria, Esq. Jacquelyn Kline, Esq. Carol Donohoe, Esq. Karen Hoffman, Esq.

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ON BEHALF OF DHS: Keith Hoppes, Esq.

Bond Memorandum·

On August 7, 2017, a bond hearing was held at the request of 3-year-old Diego ~ - ___J, a native and citizen of Honduras, and his pro bono counsel. Diego has been detained with his mother at the Berks County, PA, detention center, a secure facility which houses detained families. The record reflects that Diego and his mother have been detained since their arrival at the Texas border on October 21, 2015, a time exceeding 650 days. Over government counsel's objection, the court concluded that it had jurisdiction over Diego's custody, ordered him released on recognizance, and ordered hi_s mqther pwoled .m. acc_ordance with 8 C.F.R. § 1236.3(6)(2). Unfortunately for Diego, this case has a long history, during which time he has been held in DHS custody with his mother. Respondent's pro bono attorneys submitted numerous documents for the court's consideration; the government submitted nothing. In "Respondent's Motion for Bond Redetermination Pursuant to the Flores Settlement Agreement," received July 31, 2017, counsel set forth the salient facts and timelines pertaining to Diego's period of custody, which is helpful in order to place this case in its proper context.

In essence, Diego and his mother appeared at a port of entry in Texas seeking asylum; they were paroled for that purpose. Their Asylum Officer interview on October 30, 2017, resulted in a negative credible fear finding, .which an Immigration J\Idge upheld on November 3, 2015. According to counsel, Diego and his mother were transferred to the Berks County, :!'A, facility on or about November 10, 2015, where they remained until their release a day or two following this court's release order. 1 While detained, Diego and his mother filed a complaint in federal district court in Pennsylvania alleging that that their credible fear hearing was incorrectly conducted. The district court dismissed their complaint. In August 2016, the Third Circuit Court of Appeals dismissed their appeal; according to counsel, the ruling did not address the merits of their complaint. Currently there is a stay of removal issued by the Third Circuit while it reviews the

1 It remains unlmown why Diego and his mother were not removed to Honduras after their unsuccessful Credible Fear hearing before the Immigration Judge. When the court asked government counsel for !his information, he responded that he did not lmow.

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legality of removing respondent from the United States following his successful self-petition as a Special Immigrant Juvenile, which USClS approved on October 3, 2016.

Flores Settlement Agreement (FSA) Diego sought release from custody through this court pursuant to the Flores Settlement Agreement (FSA). The parties in the case of Flores v. Reno reached a settlement agreement concerning minors held in legacy INS custody. Flores v. Reno, Case No. CV -85-4544-RJK, Stipulation Extending the Settlement Agreement and for Other Purposes, and Order Thereon (C.D. Cal., Dec. 7, 1996). The FSA took effect in January 1997. The FSA provides, in pertinent part, a "nationwide policy for the detention, release, and treatment of minors in the custody of INS." '119. With few exceptions not applicable here, the FSA includes as class members all minors in legacy INS custody. Id. at ,i,i 1, 3, 4, I 0. Diego sought relief pursuant to ,i 24A: "A minor in deportation proceedings shall be afforded a bond redetermination hearing before an immigration judge in every case, unless the minor indicates on the Notice of Custody Determination form that he or she refuses such hearing." Government counsel's position was that the court lacked jurisdiction over Diego's custody because neither he nor his mother were ever placed into removal proceedings; thus, ,i 24A, which only refers to minors in deportation proceedings, did not apply and Diego therefore cannot seek relief through this court. It is noted that the only reference to the Immigration Courts is in ,i 24A. This is not surprising since the FSA pertained to all minors in legacy INS custody, and primarily set forth the contractual agreement pertaining to their custody and treatment. Diego's counsel argue that the DHS has failed to comply with the FSA as it pertains to respondent. See Brief atpp.8c9. They further describe the hardships he and his mother endured during their time in DHS custody. Briefatpp.17-24. While such information is disconcerting, it is nonetheless irrelevant in that such information has no direct bearing on whether this court has jurisdiction to order Diego's release. Once this court exercises jurisdiction over a detained individual, whether juvenile or adult, the salient questions are whether the individual poses a flight risk which cannot be mitigated with a bond, whether the individual poses a national security risk, and whether he poses a harm or potential harm to his community. If ,i 24A is to be read literally, it seemingly restricts detained minors' ability to seek bond only when they are in deportation proceedings. 2

Statutory Construction It is a well-settled maxim of statutory construction that a plain meaning of a statute should be conclusive except in rare cases where the literal application of a statute produces a result demonstrably at odds with the intention of the drafters. U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235,242 (1989). In Morgan v. Gay, 466 F.3d 276,278 (3d Cir. 2006), the court similarly held a court's primary purpose is to discern legislative intent through a statute's language. Where, in rare instances where "legislative intent is at odds with the literal terms of the statute, then a court's primary role is to effectuate the intent of Congress even if a word in the statute instructs otherwise." Id.

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Now removal proceedings.

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While we here are not dealing with giving meaning to a statute, the same premise applies to interpreting the FSA. Diego contends that ,r 24A provides this court with the authority to conduct a bond hearing and order his release since the overall structure of the FSA pertains to "all" minors as class members. Government counsel contends that this court's bond authority is . restricted to detained minors in [now] removal proceedings.

It is important to note at this juncture what authority the lrnmigration Court does not have pertaining to detained minors under the FSA. It does not have the authority to force the DHS into compliance with the FSA, or to interpret that agreement in any manner not directly pertaining to a minor seeking this court's order of release through ,i 24A. Any litigation concerning the government's compliance with the FSA is restricted to federal court. Rather, the Immigration Court is restricted to attempting to divine the intent of the parties to the FSA as pertaining to minors eligible to seek release from DHS custody by an immigration court. 3 To this end, it is important to understand exactly which minors are protected under the FSA. The court first turns to those sections defining the terms "minor" and "class member." Under ,i 4, "minor" is defined, in pertinent part, as "any person under the age of eighteen (18) years who is detained in the legal custody of the INS." And in ,i 10, "[t]he certified class in this action shall be defined as follows: 'All minors who are detained in the legal custody of the INS."' While government counsel did not argue, as far as the court could discern, that there is a distinction under the FSA between accompanied and unaccompanied minors, the court's reading of the FSA includes "all" minors under DHS custody with the exceptions carved out in "ii 4, which is not pertinent here. With these premises in focus, the clear intent of the parties to the FSA was to provide safeguards and rights to all certified class members who are to be similarly treated no matter their:.:.: · particular status. Indeed, nothing in the FSA, aside from the contested word "deportation" in ,r 24A, makes reference to a minor's particular status outside of being in DHS custody. In Reno v. Flores, 507 U.S. 292 (1993), a case which led the parties to avoid further litigation by entering into the FSA, the Supreme Court upheld the statute and regulations pertaining to legacy INS' s custody of minors and the institutional procedures for releasing unaccompanied children to certain designated adults. While the Supreme Court noted that the case did not deal with exclusion proceedings, id. at fn 2, it duly recognized that the district court found no rational basis for treating _alien minors in deportation proceedings differently from alien minors in exclusion proceedings. The Supreme Court observed that this "prompted the INS to initiate noticeand-comment rulemaking 'to codify Service policy regarding detention and release of juvenile aliens and to provide a single policy for juveniles in both deportation and exclusion proceedings."' Id. at 296-97. This led to the promulgation of (former) 8 C.F.R. § 242.24 (1992). What is instructive about the Reno decision are certain observations by Justice Scalia, who wrote the majority opinion. Observing that the case dealt with unaccompanied children, he noted that "the parties to the suit ... agree that the Service must assure itself that someone will care for ' Nonetheless the cowt cannot resist in pointing out that~ 19 of the FSA requires that any minor not released from custody under 1 14 must only be housed in a "licensed," i.e., non-secure facility. The only exception pertains to minors deemed a threat as spelled out in 'I[ 21. The Berks facility in no way meets the definition of a "licensed" facility. It is doubtful that Diego has threatened anyone at the Berks facility or is an escape risk which would warrant his detention there. But perhaps Diego acted in such manner while in diapers in Texas in 2015 which led DRS to conclude that it was in the best interests of all concerned for him to be housed for the next 650-plus days in a secure facility.

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'' those minors pending resolution of their deportation proceedings. That is easily done when the juvenile's parents have also been detained and the family can be released together; it becomes complicated when the juvenile is arrested alone, i.e., unaccompanied by a parent, guardian, or other related adult." Id. at 295. As it turns out, ad hoc DHS decision-making has led to what we have here today; Diego being taken into custody with his mother before he was a year old, and who celebrated his third birthday behind DHS institution walls with no end in sight of his continued custody.

In reviewing the actual procedures legacy INS employed to comply with 8 C.F.R. § 242.24, the Supreme Court sided with the government, refusing to provide a detained juvenile with an automatic review by an Immigration Judge, observing that "[A]t least insofar as this facial challenge is concerned, due process is satisfied by giving the detained juveniles the right to a hearing before an immigration judge." Id. at 309 (italics in original). This makes it clear that the detention and release provisions under 8 C.F.R. § 242.24 included the right ofa "detained juvenile alien" to seek a bond before an Immigration Judge. The Supreme Court did not qualify that right to on!y detained juveniles under deportation proceedings. Indeed, detained minors were of particular concern and therefore were provided certain rights which adult aliens in legacy INS custody did not have. Finally, in dismissing concerns that the government could require juveniles to endure lengthy custody, the Court presumed that detained juveniles would not be held in lengthy custody without the rights vested in them by the regulations. Id. at 309. So much for the high court's presumption. Reference to Reno v. Flores is critical in understanding any misconceptions that might have arisen in regards to the FSA, which followed four years later. The only entity misperceiving the original intent of the FSA is the current DHS, which insists that only minors in deportation/removal proceedings·have the right to a bond hearing. Not to belabor the point, but the entirety of-the£S}t, and later regulations, pertain to all minors in government custody, accompanied and unaccompanied, without regard to any status other than the fact that they are in DHS custody, If this court accepted government counsel's position that only minors in current removal proceedings have a right to an impartial bond hearing before an Immigration Judge, then all minors like Diego, who were paroled to seek asylum, would pointedly lack such right If that was the intention of the FSA, it certainly is not made at all clear. In fact, government counsel did not present any evidence that his predecessor agency treated minors differently in any manner based on the type oflmmigration Court proceedings under which they were held. Moreover, if the court accepted government counsel's position, for those "unlucky" minors who were paroled and under expedited removal proceedings, the DHS has the right to detain them in perpetuity where similarly situated minors in removal proceedings have the additional right to release on bond from an impartial Immigration Judge. For that matter, government counsel has not demonstrated why the current regulations provide the right of unaccompanied minors to a bond hearing by an Immigration Judge but accompanied minors are less deserving of such protection. Hence, where the former child can simply seek release administratively through the Immigration Courts, the latter minors would be exempted from such protection from lengthy custody. When one reads the FSA as a whole, it is highly doubtful that the plaintiffs to the FSA, who had spent several years in federal litigation, would have agreed to such a restrictive meaning. Reading the FSA in this narrow light would permit the DHS to detain at will any minor in Diego's position without the possibility of a bond hearing before an Immigration Court simply by

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exercising its authority to place them into expedited removal proceedings. The entire premise underlying the FSA was to minimize Wlfettered legacy INS authority over minors who come into their custody. In short, the singular word "deportation" in ,r 24A is at odds with the language and the intention of the parties to treat all minors in the same manner. Authority of the Attorney General to Conditionally Parole a Minor and his Parent; INA§ 236 The "Apprehension and Detention of Aliens" is set forth at INA § 236. Subsection (a) thereunder provides for the Attorney General's authority to detain aliens, or to authorize their release on custody bond. Within this authority is the power of the Attorney General to release an alien on conditional parole. INA § 236(a)(2)(B). Such authority, in tum, is delegated to Immigration Judges per 8 C.F.R. §§ 1003.19; 1236. l(d). The Board of Immigration Appeals over the years has set forth guidelines that the Immigration Courts are to apply when conducting bond hearings. Such guidance is primarily geared to determining whether the alien presents an Wlffianageable risk of flight, a danger to the national security, or a danger to persons within his community. Matter of Guerr,i, 24 I&N Dec. 37 (BIA 2006). The Board further recognized the Attorney.General has broad discretion beyond these three primary concerns in deciding matters of custody. Id. at 39. Such long-standing case law is focused on adult aliens in DHS custody. When it comes to juvenile· detainees, the law is evolving as we speak. See Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017). For accompanied minors, the FSA provides for bond hearings while not providing any guidance as to how juvenile detainees are to be released through the orders of an Immigration Judge. Of recent vintage are procedures set for the release of W1accompanied juveniles. See TraffickmgVictims Protection Reauthorization Act of2008 (TVPRA) § 235(b)(3): · As noted above, INA § 236(a)(2) provides parole authority to the Attorney General. This type of parole is not related to the Secretary of Homeland Security's authority to parole individuals into the United States. See, e.g., Matter ofMatelot, 18 I&N Dec. 334, 336 (BIA 1982). In Matter of Castillo-Padill,i, 25 l&N Dec. 257 (BIA 2010), ajf'd, Castillo-Padilla v. Att'y Gen., 417 Fed. Appx. 888 (11th Cir. 2011) (Wlpublished), the Board held that "conditional parole" from custody W1der INA § 236(a)(2)(B) is not the equivalent of being paroled into the United States for the purpose of seeking adjustment of status. The Board did not address the issue of whether Immigration Judges have "conditional parole" authority. The only case the court could find pertaining to INA§ 236(a)(2)(B) is In re Navarro-Solajo, 2011 WL 1792597, n. 2 (BIA 2011) ("We acknowledge the respondent's argument that he should have been released on conditional parole pursuant to section 236(a)(2)(B) of the Act. It is not necessary here to address the extent of an Immigration Judge's authority as to conditional parole .... "). While the Board elected not to address the jurisdiction of an Immigration Judge to "conditionally parole" an alien from DHS custody, the Board could simply have stated that there is no such authority vested_ in the Immigration Courts by the Attorney General. In any event, "conditional parole" is provided in INA § 236(a). It is uncontested that the Immigration Court may continue an alien's detention under subsection (1), or release an alien under a minimum $1500 bond as set forth in subsection (2)(A). It therefore stands to reason that the Immigration Judge has "conditional parole" authority as provided in subsection (2)(B). There is no case law to the contrary as far as the court could ascertain.

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This "conditional parole" authority is an important power vested in the Immigration Courts.

It permitted the court to parole Diego's mother pursuant to 8 C.F.R. § 1236.3(b)(2) to ensure his psychological well-being. 4 Indeed, in Bunikyte, ex rel. Bunikiene v. Chertoff, 2007 WL 1074070 (W.D. Tex. April 9, 2007), the district court, when examining the impact of the FSA on accompanied minors, specifically noted that the "[P]laintiffs and Defendants agree that separating the minor Plaintiffs from their parents by releasing the children to adult relatives would be traumatizing and detrimental to them."

Conclusion At the time the Flores Settlement Agreement became contractually binding on the . government, it was not foreseen that thousands of minors would cross the border with their parents, presenting challenges to the government not contemplated by the FSA. Be that as it may, the FSA applies to all minors and the government is still bound by its terms. Diego, now all of 3-years-old, has gone from diapers to detention in his young life with no understanding or exposure to life beyond secure custody. Even discounting the conditions of the youngster's custody as his attorneys allege, it is simply unconscionable for this child to have been held beyond 650 days before DHS released him and his mother, reluctantly, pursuant to this court's order. While government counsel alluded to the "delays" wrought by Diego's various appeals and stays as a "reason" for the length of custody, that in no way comes close to explaining why this child has been in government custody for two-thirds of his life. Itis not contested that the OHS had the authority to parole Diego and his mother at any · ~.time since their arrival at our border. That they did.not do so is beyond the ,pale.· Indeed, even for adults with serious criminal records, the federal courts have recognized their right to a custody hearing before an Immigration Court once their period ofDHS custody exceeds five to six months. The Third Circuit wholly rejected the government's argument that the time accrued in custody due to seeking appeals or stays should not be counted, pointing out that such actions were matters of right. See Leslie v. Att'y Gen, 678 F.3d 265 (3d Cir. 2012). The more pertinent point is that the government's argument that the FSA no longer applies, or if it does, that Diego is not eligible for a bond hearing before an Immigration Court, has not been bolstered by any evidence or citation to authority. Government counsel's argument concerning the word "deportation" in 1 24A, when read in light of the entire Agreement which otherwise refers to class members as "all minors," is unpersuasive. It is true that the TVPRA, and the most recent Flores decision clarified certain rights of unaccompanied children in OHS custody, but nothing therein removed or restricted the rights of all minors as set forth in the original FSA. No reasonable argument could be made that the FSA contemplated a young child being held for years after a final decision was reached in his case. This bond record is completely devoid of any reason, rational or otherwise, which would validate DHS's continuous custody of this child over such a long period of time. Why Diego and his mother were not removed following the Immigration Judge's November 2015 Credible Fear hearing has not been clearly articulated. Nor has it been explained why Diego and his mother were not released long before if the OHS was aware that removing them was not likely in the near term. ' See "Declaration of Julie M. Linton, M.D., FAAP, respondent's exhibit A.

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The court firmly believes that its interpretation of the FSA as pertaining to ,i 24A is correct in that all minors, no matter their particular status, .have the right to seek release by an Immigration Court. It is impermissible to read a word or phrase contained in the FSA in such manner that would place the Agreement at odds with its literal wording or intent of the parties. Such would be the result if the word "deportation" in 124A were read as if in a vacuum by ignoring the entirety of the Agreement. Or as the Supreme Court would likely phrase it, if only minors in [removal] proceedings had a right to a bond hearing before an Immigration Court as per ,i 24A, the "result [would be] demonstrably at odds with the intention of the drafters." U.S. v. Ron Pair Entemrises. Inc. at 242. In the alternative, the court had the authority to order Diego's release through "conditional parole." INA § 236(a)(2)(B); 8 C.F.R. § 1236.3. Because the court directed Diego's release on recognizance, the court had no need to revert to its "conditional parole" authority to release him. However, Diego's mother was conditionally paroled pursuant to 8 C.F.R. § 1236.3(b)(2). Ordering Diego's release on recognizance was made after resolving that he was not a flight risk, a risk to national security, or a risk to his community. Being of such tender years, the latter two criteria are of no relevance. As for flight risk, Diego is presently under a stay of removal issued by the Third Circuit while he continues his legal fight. He and his mother have been released to a relative in Houston, Texas, who has agreed to ensure their cooperation with DHS. By any measure, no one can dispute that Diego's best interests lie in Houston in a family setting rather than the Berks County facility. Finally, this court takes the opportunity to express its dismay that the government has made . - the decision to appeal this court' ir ROR order. While the government has the right l\'l do $0, it is . astonishing that it would undertake an appeal of this court's release order when it has steadfastly refused to release this child after so long a time, and by all accounts, had no intention of releasing him. Obviously Diego's best interests were relegated to unimportance as no one could rationally argue that his lengthy custody was healthy for him. Whatever the reason which prompts the DHS to attempt to perpetuate this child's continued custody, never revealed to this court nor to his attorneys, it cannot be countenanced. And this court will take no part in it.

Walter A. Durling Immigration Judge August I 6, 2017

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