“[T]he statute does 19 not limit the relief that may be granted to discharge of the applicant from physical custody. 20 Its mandate is broad with respect to the relief that may be granted.”
How later courts described this case
- “[T]he statute does 19 not limit the relief that may be granted to discharge of the applicant from physical custody. 20 Its mandate is broad with respect to the relief that may be granted.”
- “[I]t is obvious that compliance with the law is in the public interest.”
- “Because the agency 10 improperly used the country report to discredit specific testimony regarding [the 11 applicant]’s personal experience, these findings are not supported by substantial 12 evidence.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 N.B., a minor child, Case No.: 19-CV-1536 JLS (LL)
12 Petitioner,
ORDER (1) APPOINTING HUGO
13 v. IVAN SALAZAR AS “NEXT
FRIEND” TO MINOR PETITIONER
14 WILLIAM P. BARR, Attorney General
N.B. PURSUANT TO 28 U.S.C. § 2242,
of the United States; KEVIN K.
15 AND (2) PRELIMINARILY
MCALEENAN, Acting Secretary of the
ENJOINING RESPONDENTS FROM
16 U.S. Department of Homeland Security;
FURTHER UNLAWFULLY
MARK A. MORGAN, Acting
17 DETAINING N.B.
Commissioner of U.S. Customs and
18 Border Protection; MATTHEW T.
(ECF No. 1)
ALBENCE, Acting Director of
19
Immigration and Customs Enforcement;
20 DR. STEWART D. SMITH, Assistant
Director for ICE Health Services Corps;
21
FRED FIGUEROA, Warden of the Otay
22 Mesa Detention Center; OLIVER
CASTANEDA, Deportation Office, Otay
23
Mesa Detention Center; CORECIVIC,
24 LLC, a Delaware limited liability
corporation,
25
Respondents.
26
27 Presently before the Court is Petitioner N.B.’s Verified Petition for Writ of Habeas
28 Corpus (“Pet.,” ECF No. 1). Also before the Court are the Return to the Petition (“Ret.,”
1 ECF Nos. 6, 10) filed by Respondents William P. Barr, Attorney General of the United
2 States; Kevin K. McAleenan, Acting Secretary of the United States Department of
3 Homeland Security (“DHS”); Mark A. Morgan, Acting Commissioner of the United States
4 Customs and Border Protection (“CBP”); Matthew T. Albence, Acting Director of
5 Immigration and Customs Enforcement (“ICE”); Dr. Stewart D. Smith, Assistant Director
6 for ICE Health Services Corps (“IHSC”); Fred Figueroa, Warden of the Otay Mesa
7 Detention Center; Oliver Castaneda, Deportation Officer, Otay Mesa Detention Center;
8 and CoreCivic, LLC, as well as Petitioner’s corrected Verified Traverse (“Trav.,” ECF No.
9 9), both filed in response to the Court’s August 19, 2019 Order to Show Cause Pursuant to
10 28 U.S.C. § 2243. See generally ECF No. 5.
11 The Court finds this matter suitable for determination without oral argument
12 pursuant to Civil Local Rule 7.1(d)(1) and without holding an evidentiary hearing pursuant
13 to 28 U.S.C. § 2243. Having carefully considered the Parties’ arguments, the evidence,
14 and the law, the Court APPOINTS Hugo Ivan Salazar to serve as N.B.’s “next friend”
15 pursuant to 28 U.S.C. § 2242 and PRELIMINARILY ENJOINS Respondents from
16 further unlawfully detaining N.B. in custody with unrelated adults.
17 BACKGROUND
18 I. Legal Background
19 United States Magistrate Judge James P. Donohue provided a thorough overview of
20 the legal framework relevant to the instant Petition in B.I.C. v. Asher, No. C16-132-MJP-
21 JPD, 2016 WL 8672760 (W.D. Wash. Feb. 19, 2016):
22
Before the creation of DHS in 2002, the care and placement of
23 unaccompanied alien children (“UAC”) in the United States was
the responsibility of the Office of Juvenile Affairs in the former
24
Immigration and Naturalization Service (“INS”). See F.L. v.
25 Thompson, 293 F. Supp. 2d 86, 96 (D.D.C. 2003). In 2002,
INS’s functions were split between the enforcement of federal
26
immigration law, which was left to DHS, and the care of
27 immigrant children, which was left to HHS. See Homeland
Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002)
28
1 William Wilberforce Trafficking Victims Protection Act
(“TVPRA”), further separating DHS’s and HHS’s functions by
2
placing the care and custody of children under HHS’s
3 jurisdiction and clarifying the respective roles and
responsibilities of the two agencies with respect to UACs.
4
5 A. The Homeland Security Act of 2002
6
With the enactment of the HSA, Congress created DHS and
7 transferred most immigration functions formerly performed by
INS to DHS and its components, including U.S. Citizenship and
8
Immigration Services, U.S. Customs and Border Protection, and
9 ICE. See HSA; Department of Homeland Security
Reorganization Plan Modification of January 30, 2003, H.R.
10
Doc. No. 108-32 (2003) (also set forth as a note to 6 U.S.C.
11 § 542). Notably, Congress transferred to [the Office of Refugee
Resettlement (“ORR”)] the responsibility for the care of any
12
UAC “who [is] in Federal custody by reason of [his or her]
13 immigration status.” 6 U.S.C. §§ 279(a), (b)(1)(A). The HSA
also transferred to ORR the responsibility for making all
14
placement decisions for UACs, required ORR to coordinate these
15 placement decisions with DHS, and required ORR to ensure that
UACs are not released upon their own recognizance. See 6
16
U.S.C. §§ 279(b)(l)(C), (D), (b)(2).
17
B. The Trafficking Victims Protection Reauthorization
18 Act of 2008
19
The TVPRA, which was signed into law on December 23, 2008,
20 contains statutory protections relating to UACs and codified
protections related to the processing and detention of UACs. The
21
TVPRA built on the split of duties in the HSA and further
22 requires that “the care and custody of all unaccompanied alien
children, including responsibility for their detention, where
23
appropriate, shall be the responsibility of the Secretary of Health
24 and Human Services.” 8 U.S.C. § 1232(b)(1). It also provides
that in most instances, “any department or agency of the Federal
25
Government that has an unaccompanied alien child in custody
26 shall transfer the custody of such child to the Secretary of Health
and Human Services not later than 72 hours after determining
27
that such child is an unaccompanied alien child.” 8 U.S.C.
28 § 1232(b)(3).
1 The TVPRA makes clear that HHS is responsible for all
placement decisions for UACs in its custody, and for conducting
2
suitability assessments for those placements. 8 U.S.C. § 1232(c).
3 It requires that UACs in HHS custody be “promptly placed in the
least restrictive setting that is in the best interest of the child,”
4
and it provides guidelines for the reunification of UACs with
5 their families by HHS. 8 U.S.C. § 1232(c)(2), (3).
6
The protections TVPRA affords UACs apply after the HHS, in
7 consultation with DHS, determines that the applicant is indeed a
child. 8 U.S.C. § 1232(b)(a). Importantly for this litigation, the
8
TVPRA provides:
9
The Secretary of Health and Human Services, in
10
consultation with the Secretary of Homeland
11 Security, shall develop procedures to make a
prompt determination of the age of an alien, which
12
shall be used by the Secretary of Homeland Security
13 and the Secretary of Health and Human Services for
children in their respective custody. At a minimum,
14
these procedures shall take into account multiple
15 forms of evidence, including the non-exclusive use
of radiographs, to determine the age of the
16
unaccompanied alien.
17
8 U.S.C. § 1232(b)(4) (emphasis added).
18
19 C. ORR’s age determination procedures1
20
Pursuant to § 1232(b)(4), ORR developed age determination
21 procedures for individuals without lawful immigration
status. See Dkt. 3-2 (Children Entering the United States
22
Unaccompanied: Section 1 (updated Oct. 5, 2015) (“ORR
23 Guide”)). The ORR Guide provides that “HHS may make age
determinations of [UACs] when they are in HHS custody on a
24
reasonable suspicion that a child in HHS custody is 18 years or
25 older.” Id. at 8 (ORR Guide § 1.6.1). When conducting age
determinations, ORR case managers are directed to seek the
26
27
28
1 Magistrate Judge Donohue notes that “ICE developed a matching policy.” BIC, 2016 WL 8672760, at
1 following evidence, but information from each category is not
required: (1) documentation, such as official government-issued
2
documents and other reliable records that indicate the UAC’s
3 date of birth; and (2) statements by individuals who can credibly
attest to the age of the UAC, including the UAC (but generally,
4
a UAC’s uncorroborated declaration regarding age is not used as
5 the sole basis for an age determination). Id. at 8 (ORR Guide
§ 1.6.2).
6
7 When other information is “inconclusive,” case managers may
use medical age assessment procedures, such as dental maturity
8
assessments using radiographs. Id. The ORR Guide provides
9 that a “medical professional experienced in age assessment
method(s) must perform the examination, taking into account the
10
individual’s ethnic and genetic background.” Id. The ORR
11 Guide recognizes that “no medical assessment method can
determine an exact age [so] best practice relies on the estimated
12
probability that an individual is 18 or older.” Id. “The
13 examining doctor must submit a written report indicating the
probability percentage that the individual is a minor or an adult
14
. . . If an individual’s estimated probability of being 18 or older
15 is 75 percent or greater, ORR will refer the individual to
DHS.” Id.
16
17 B.I.C., 2016 WL 8672760, at *1–3 (all alterations but first in original) (emphasis in
18 original) (footnotes omitted).
19 I. Factual and Procedural Background
20 N.B. is a citizen of the Republic of Guinea, Pet. ¶ 27; Resps.’ Ex. (ECF No. 4-1) at
21 16, who speaks a tribal language known as Fella Minakakan and also French. Trav. ¶ 30(a).
22 Having been threatened and fearing for his life, Resps.’ Ex. at 3, 20, 23, N.B. decided to
23 go to the United States, id. at 19, where his cousin lives. Id. at 18. On March 3, 2019,
24 N.B. flew from Guinea to Ecuador. Id. at 2, 18. He then traveled by bus to Turbo,
25 Colombia, id., and by foot to Panama. Id. at 2–3; 18. N.B. then bussed through Costa
26 Rica, Nicaragua, Honduras, and Guatemala, id. at 3, 18, where he lost his Guinea passport.
27 Id. at 2, 3, 19–20. N.B. then took a bus through Mexico, from Tapachula to Tijuana. Id.
28 at 3, 18.
1 In Tijuana, N.B. stayed in a center with other migrants. Id. at 3, 18. N.B. heard from
2 a non-government organization and from other migrants about the San Ysidro port of entry.
3 Id. at 18. Although he did not hire an attorney before coming to the United States, a lawyer
4 named Nicole Ramos from Al Otro Lado brought N.B. to San Ysidro. Id. at 3, 18–19;
5 Trav. ¶ 30(e). The attorney told N.B. that N.B. could request asylum in the United States
6 by claiming fear because of sexual orientation, political or religious affiliation, or fear of
7 returning to Guinea. Resps.’ Ex. at 3, 19.
8 During his travels from Guinea to Mexico, N.B. gave his date of birth as December
9 1992 on the advice of an older friend, Grand Balpe, who informed N.B. that he would be
10 deported immediately or detained as a minor and held until he was an adult. Id. at 2, 16;
11 Trav. ¶ 30(a). In Costa Rica, Mr. Balpe helped N.B. complete an immigration form that
12 was written in Spanish, a language N.B. does not know. Trav. ¶ 30(b). At Mr. Balpe’s
13 suggestion, see id., N.B. used the December 1992 birthdate on the Costa Rican immigration
14 form, which N.B. used to travel through Central America to the Mexican border. Id.
15 ¶ 30(c). April 9 and 21, 2019 intake forms from ICE agents in Mexico reflect this
16 December 1992 birthday. Resps.’ Ex. at 5a, 7; Trav. ¶¶ 30(d), (g). Once in Mexico, N.B.
17 was provided with a second immigration form, also written in Spanish, that he used to
18 travel from Tapachula to Tijuana. Trav. ¶ 30(d). N.B. had difficulty understanding the
19 form and does not recall what birthday he used on it. Id. Although a May 3, 2019 intake
20 form notes that N.B.’s birthday was in December 2000, Resps.’ Ex. at 6; Trav. ¶ 30(g),
21 N.B. claims he never provided a December 2000 birthdate to Mexican officials. Trav.
22 ¶ 31(a).
23 On May 22, 2019, N.B. presented himself at the United States port of entry in San
24 Ysidro as an unaccompanied minor, Pet. ¶¶ 27, 38; Resps.’ Ex. at 19, and requested asylum.
25 Resps.’ Ex. at 2. Although N.B. did not have legal documents allowing him entrance to
26 the United States, id. at 2, 16, he presented an extract from his birth certificate bearing the
27 seal of the Office of the Registrar and Chief Clerk of the Republic of Guinea and showing
28 / / /
1 that he was born in December 2001. Pet. ¶ 27; see also Pet. Ex. 1, ECF No. 1-2; Pet. Ex.
2 2, ECF No. 1-3; Resps.’ Ex. at 2. N.B. also had in his possession a government-issued
3 education system photo identification card indicating N.B. was born in December 2001,3
4 see Pet. ¶ 36; Pet. Ex. 3, ECF No. 1-4; an April 30, 2019 extract of an April 11, 2019
5 judgment, certified May 9, 2019, ruling that N.B. was born in December 2001, see Resps.’
6 Ex. at 35; and the April 11, 2019 judgment, certified May 9, 2019.4 See id. at 36.
7 N.B. was taken in DHS custody and referred to CBP processing. Pet. ¶ 28. On
8 May 25, 2019, he was placed in expedited removal proceedings pursuant to 8 U.S.C.
9 § 1225(b)(1). Resps.’ Ex. at 12. N.B. was held in solitary confinement for four days, Pet.
10 ¶¶ 28, 39, and in the “ice box” for another twenty-four days. Id. ¶¶ 29, 39. On June 18,
11 / / /
12
13
2 “In the Republic of Guinea, original birth certificates are not issued to individuals for them to retain,
14 rather the government holds the original in a registry depository in the city hall of the individual’s birth
city—essentially a records department in the city hall.” Trav. ¶ 33(3)(b) (citing ECF No. 4-2 at 1–2). “If
15
someone wants to obtain the information contained within a birth certificate, they may request a birth
16 certificate extract from the registry depository.” Id. (citing ECF No. 4-2 at 2). “The extract contains the
birthdate, ‘child’s surnames, given names and place of birth, as well as their parents’ names, place of birth,
17 procession and place of residence.’” Id. (quoting ECF No. 4-2 at 2).
18 3 During his May 25, 2019 interview with DHS, N.B. indicated that “[he] d[id] not have a picture ID but
[he] ha[d his] birth certificate from Guinea.” Resps.’ Ex. at 16. N.B. explains in his verified Traverse
19
that he “misunderstood the questions being asked” because they were translated into French, which is a
20 secondary language, not his native tongue. Trav. ¶ 54.
21 4 According to Respondents, the April 11, 2019 judgment indicates that it was issued in response to the
April 10, 2019 request of N.B.’s father, who passed away in 2011. See Ret. at 1, 3, 11; see also Resps.’
22 Ex. at 2, 17, 38–39. N.B. responds that “the government again seems either to be ignorant of the facts
and/or is willfully hurling misplaced accusations of fraud,” Trav. ¶ 33(3)(a), because “N.B.’s cousin
23
obtained a judgment entitling her to obtain N.B.’s birth certificate extract, on behalf of N.B.’s deceased
24 father’s estate, and on behalf of and authorized by N.B. himself, according to the Guinean Civil Code.”
Id. ¶ 33(3)(b). Consequently, “[n]o one impersonated N.B.’s father as the government claims.” Id. In
25 any event, N.B. contends, “the government has not shown what about the document warrants disregarding
its facially certified, sealed, attestations as to N.B.’s birth information.” Id.
26
Respondents also contend that N.B. had in his possession a certified copy of a Guinean birth certificate
27
for Mohamed Saliuo Bah, born January 25, 2002. See, e.g., Ret. at 3; see also Resps.’ Ex. at 40. But
28 “N.B. disputes that he was ever in possession of another person’s birth certificate, or any birth certificate
1 2019, N.B. was transferred to the Otay Mesa Detention Center, id. ¶ 40, which is managed
2 by CoreCivic. Id. ¶ 26.
3 On June 24, 2019, IHSC ordered a dental x-ray examination of N.B. to determine
4 his age. Id. ¶¶ 29, 41; see also Resps.’ Ex. at 24. The dental x-ray determined N.B.’s
5 “mean age” to be 20.24 years of age, with a standard deviation of 2.98 years. Pet. ¶ 29;
6 Resps.’ Ex. at 24. Accordingly, the report concluded that “[t]he interval of possible ages
7 for such a male is 17.26 to 23.23 years,” with “[t]he empirical statistical probability of
8 [N.B.] having attained 18 years of age [being] 93.53%.” Resps.’ Ex. at 24. ICE therefore
9 concluded that N.B. would “be treated as an adult” because “the empirical statistical
10 probability the subject[] attained 18 years of age is 93.53%.” Pet. ¶ 29; see also Pet. ¶ 41;
11 Ex. 12, ECF No. 1-13. Accordingly, N.B. is being detained in group quarters with more
12 than 100 adult men. Pet. ¶ 32. These conditions have left N.B. feeling helpless, distraught,
13 and in constant fear. Id. ¶ 33.
14 On July 16, 2019, an asylum officer conducted a credible fear interview of N.B. See
15 Resps.’ Ex. at 25.
16 On August 5, 2019, Mr. Salazar of Al Otro Lado entered an appearance as N.B.’s
17 counsel via DHS Form G-28 and requested N.B.’s immediate release to his cousin and
18 sponsor, Mariama Tounkara, in Columbus, Ohio, pursuant to the stipulated settlement
19 agreement in Reno v. Flores, 507 U.S. 292 (1993) (the “Flores Settlement”). Pet. ¶¶ 30,
20 42; Pet. Ex. 4, ECF No. 1-5; Pet. Ex. 5, ECF No. 1-6; see also Pet. Ex. 13, ECF No. 1-14.
21 That same day, Respondent Castaneda refused the request on the basis ICE would continue
22 to treat N.B. as an adult in light of the results of the Dental Age Assessment. See Pet.
23 ¶¶ 31, 43; see also Pet. Ex. 12.
24 On August 8, 2019, N.B. retained Arent Fox LLP to represent him pro bono. Pet.
25 ¶ 34.
26 The asylum officer issued a negative credible fear determination on August 12, 2019.
27 See Resps.’ Ex. at 28. In response to N.B.’s request for review by an immigration judge
28 / / /
1 pursuant to 8 C.F.R. § 1208.30(g)(2), see id. at 32, N.B.’s case was referred for review on
2 August 14, 2019. See id. at 30–31.
3 Al Otro Lado and Arent Fox LLP filed the instant Petition on behalf of N.B. on
4 August 15, 2019. See generally ECF No. 1. The Petition alleges the following claims for
5 relief: (1) violation of the TVPRA and implementing guidelines; (2) violation of the
6 Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); (3) violation of 8 C.F.R.
7 § 1236.3(d); (4) violation of the Flores Settlement; (5) violation of N.B.’s procedural and
8 substantive due process rights under the Fifth Amendment; (6) violation of the APA
9 because of violation of N.B.’s due process rights; (7) declaratory relief pursuant to 28
10 U.S.C. §§ 2201, 2202; and (8) writ of habeas pursuant to 28 U.S.C. § 2241. See Pet.
11 ¶¶ 71–129.
12 On August 16, 2019, N.B. filed an Application for Issuance of Writ or Order to Show
13 Cause Pursuant to 28 U.S.C. § 2243, see generally ECF No. 3, to which Respondents filed
14 an opposition. See generally ECF No. 4. On August 19, 2019, the Court issued an Order
15 to Show Cause Pursuant to 28 U.S.C. § 2243, see generally ECF No. 5, ordering
16 Respondents to show cause why the Petition should not be granted. See id. at 2.
17 On the same day, the immigration judge vacated the asylum officer’s credible fear
18 determination as procedurally defective, see Trav. Ex. 1, ECF No. 9-1, and ICE placed
19 N.B. in removal proceedings under 8 U.S.C. § 1229a, pursuant to 8 C.F.R.
20 § 1208(g)(2)(iv)(B). Resps.’ Ex. at 41–42. On August 20, 2019, N.B.’s counsel submitted
21 a second request that ICE release N.B. Trav. Ex. 2, ECF No. 9-2.
22 LEGAL STANDARD
23 Once a petition for a writ of habeas corpus is filed in federal court pursuant to 28
24 U.S.C. § 2241, the court must comply with the procedures set forth by 28 U.S.C. § 2243:
25 A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order
26
directing the respondent to show cause why the writ should not
27 be granted, unless it appears from the application that the
applicant or person detained is not entitled thereto.
28
1 . . .
2
The person to whom the writ or order is directed shall make a
3 return certifying the true cause of detention.
4
. . .
5
6 The applicant or the person detained may, under oath, deny any
of the facts set forth in the return or allege any other material
7
facts.
8
The return and all suggestions made against it may be amended,
9
by leave of court, before or after being filed.
10
The court shall summarily hear and determine the facts, and
11
dispose of the matter as law and justice require.
12
13 28 U.S.C. § 2243.
14 ANALYSIS
15 I. Petitioner’s Capacity to Sue
16 In a footnote on the caption page of their Return, Respondents assert that, “[i]f
17 Petitioner is indeed a minor, he lacks capacity to bring this action.” Ret. n.1 (citing Fed.
18 R. Civ. P. 17).
19 Here, Mr. Salazar twice has represented that he is acting on N.B.’s behalf pursuant
20 to 28 U.S.C. § 2242. See Pet. at 34; Trav. At 34. The Court therefore construes these
21 representations as a request for appointment of “next friend” status. See, e.g., Ward v.
22 Ortega, No. CV 02-1022 MMM (FMO), 2003 WL 27382360, at *1 (C.D. Cal. Jan. 23,
23 2003) (construing opposition to motion to dismiss petition filed by attorney on behalf of
24 minor as request for appointment of next friend status).
25 The habeas statutes explicitly provide for such next friend standing: “Application
26 for a writ of habeas corpus shall be in writing signed and verified by the person for whose
27 / / /
28 / / /
1 relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242 (emphasis
2 added). The United States Supreme Court has established “at least two firmly rooted
3 prerequisites for ‘next friend’ standing.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990).
4 “First, a ‘next friend’ must provide an adequate explanation—such as inaccessibility,
5 mental incompetence, or other disability—why the real party in interest cannot appear on
6 his own behalf to prosecute the action.” Id. (citing Wilson v. Lane, 870 F.2d 1250, 1253
7 (7th Cir. 1989); Smith ex rel. Mo. Pub. Def. Comm’n v. Armontrout, 812 F.2d 1050, 1053
8 (8th Cir. 1987); Weber v. Garza, 570 F.2d 511, 513–14 (5th Cir. 1978)). “Second, the
9 ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he
10 seeks to litigate,” id. (citing Morris v. United States, 399 F. Supp. 720, 722 (E.D. Va.
11 1975)), meaning the “‘next friend’ must have some significant relationship with the real
12 party in interest.” Id. (citing Davis v. Austin, 492 F. Supp. 273, 275–76 (N.D. Ga. 1980));
13 see also Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001). The Ninth
14 Circuit has clarified that “the contours of the requisite ‘significant relationship’ do not
15 remain static, but must necessarily adapt to the circumstances facing each individual
16 detainee” because “[n]ot all detainees may have a relative, friend, or even a diplomatic
17 delegation able or willing to act on their behalf.” Coal. of Clergy, Lawyers, & Professors
18 v. Bush, 310 F.3d 1153, 1162 (9th Cir. 2002). “In such an extreme case it is plausible that
19 a person with ‘some’ relationship conveying some modicum of authority or consent,
20 ‘significant’ in comparison to the detainee’s other relationships, could serve as the next
21 friend.” Id.
22 As Respondents themselves concede, the first Whitemore/Massie requirement is
23 satisfied by N.B.’s minority status. See ECF No. 4 at n.1; Ret. at n.1. That Mr. Salazar
24 filed the Petition—which comprises over 150 pages—pro bono demonstrates that he is
25 “truly dedicated to the best interests of” N.B. See Whitemore, 495 U.S. at 163; see also
26
27
28
5 Such “next friend” standing is also authorized by Rule 17 in suits by minors. See Fed. R. Civ. P. 17(c)(2)
1 ACLU ex rel. Unnamed U.S. Citizen v. Mattis, 286 F. Supp. 3d 53, 58 (D.D.C. 2017)
2 (concluding that ACLU satisfied “best interests” prong of Whitemore test where “it is clear
3 . . . that [the detainee] wishes to have the assistance of a lawyer”). The Court also concludes
4 that, under N.B.’s particular circumstances,6 Mr. Salazar has the requisite significant
5 relationship with N.B. See, e.g., Tinsley v. Flanagan, No. CV-15-00185-PHX-ROS, 2016
6 WL 8200450, at *6 (D. Ariz. May 13, 2016) (“The present record is limited but it
7 establishes the relationships between [attorneys and minors] are all that can be expected
8 under the circumstances. . . . Accordingly, [attorneys] satisfy the ‘significant relationship’
9 requirement.”); Nichols v. Nichols, No. CIV. 10-651-HA, 2011 WL 2470135, at *5 (D. Or.
10 June 20, 2011) (“[Court-appointed fiduciary]’s ‘authorized representation’ established a
11 sufficient relationship for purposes of Next Friend standing in this case.”).
12 The Court therefore determines that Mr. Salazar has met his burden of establishing
13 the “next friend” requirements applicable to 28 U.S.C. § 2242 pursuant to the Supreme
14 Court’s decision in Whitemore and the Ninth Circuits decisions in Massie and Coalition of
15 Clergy. Consequently, the Court APPOINTS Mr. Salazar to serve as N.B.’s “next friend.”
16 II. Jurisdiction
17 Respondents challenge the Court’s jurisdiction over Counts Two, Three, Six, and
18 Seven on the grounds that those Counts are not proper habeas claims and that the Court
19 lacks personal jurisdiction over Respondents as to those claims. See Ret. at 5–7.
20 A. Habeas Jurisdiction
21 “Absent intervening law, this court has jurisdiction pursuant to 28 U.S.C. § 2241.”
22 Nguyen v. Fasano, 84 F. Supp. 2d 1099, 1104 (S.D. Cal. 2000); Alikhani v. Fasano, 70 F.
23 Supp. 2d 1124, 1126 (S.D. Cal. 1999).
24 Respondents’ sole argument against this Court’s jurisdiction is that Counts Two,
25 Three, Six, and Seven are not proper habeas claims that therefore are subject to dismissal
26
27 6 N.B.’s father died in 2011, Resps.’ Ex. 38, and N.B. has not had contact with his mother, who remains
28 in Guinea, since 2013. Id. at 2, 16–17. N.B.’s only relative in the United States is his cousin, who lives
1 (or even warrant dismissal of the entire Petition). See Ret. at 5–6. N.B. counters that
2 “[t]he government apparently misunderstands N.B.’s habeas petition,” Trav. ¶ 10, because
3 “Counts 2, 3, and 6 are not independent civil claims under Section 1983 or any other
4 law[, but r]ather . . . are explicitly formulated as theories of habeas relief.” Trav. ¶ 11. “As
5 to Count 7, which seeks a declaration of N.B.’s rights pursuant to 28 U.S.C. §§ 2201 and
6 2202, again N.B. is not seeking independent civil relief. Rather, he has sought a declaration
7 of his rights in his habeas case.” Id. ¶ 16.
8 The Court agrees that N.B.’s Counts Two, Three, Six, and Seven are proper habeas
9 claims. Ultimately, N.B. is seeking injunctive relief, Pet. ¶ 130(d), and “declaration(s) that
10 N.B. is a minor for purposes of his immigration detention and immigration proceedings,
11 until his eighteenth (18th) birthday,” id. ¶ 130(b); “that Defendants’ age determination of
12 N.B. based solely on the dental x-ray assessment violated the TVPRA, 8 U.S.C. § 1232(b),”
13 Pet. ¶ 130(c); and “that Ms. Tounkara is a qualified family-member-sponsor pursuant to
14 ¶ 14 of the Flores Settlement Agreement.” Pet. ¶ 130(f). He seeks no damages pursuant
15 to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), see generally Pet. ¶ 130,
16 but rather declaratory and injunctive relief, see generally id., both of which are proper
17 habeas remedies. See 28 U.S.C. § 2243 (“The court shall . . . dispose of the matter as law
18 and justice require.”); Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (“[T]he statute does
19 not limit the relief that may be granted to discharge of the applicant from physical custody.
20 Its mandate is broad with respect to the relief that may be granted.”); Brian R. Mean,
21 Federal Habeas Manual § 13:20 (2019) (discussing general availability of declaratory and
22 injunctive relief in habeas actions); see also, e.g., Rodriguez v. Hayes, 591 F.3d 1105,
23
24
25 7 N.B.’s second count claims that “Defendants’ age determination and subsequent decisions to continue
detaining N.B. as an adult are arbitrary and capricious and must be set aside, pursuant to the [APA],” Pet.
26 ¶ 82, while his third count alleges that “[t]he government’s detention of N.B. . . . violates 8 C.F.R. §
1236.3(d).” Pet. ¶ 95. N.B.’s sixth count contends that “Defendants’ conduct has and continues to violate
27
N.B.’s procedural and substantive Due Process rights” in violation of the APA, Pet. ¶ 120, while his
28 seventh count “seeks a declaration that he is a minor for purposes of his immigration detention and
1 1111–12, 1119–20 (9th Cir. 2010) (reversing district court’s denial of certification of
2 habeas class seeking injunctive and declaratory relief and concluding class was not barred
3 from obtaining injunctive of declarator relief). The Court therefore concludes that it has
4 subject-matter jurisdiction over all claims presented by the instant Petition.
5 B. Personal Jurisdiction
6 Respondents also argue that Counts Two, Three, Six, and Seven must be dismissed
7 for lack of personal jurisdiction. Ret. at 6–7. Even in the habeas context, however,
8 “personal jurisdiction—unlike subject-matter jurisdiction—may be waived.” Smith v.
9 Idaho, 392 F.3d 350, 355 (9th Cir. 2004). To the extent that Respondents’ challenge to the
10 Court’s personal jurisdiction survives in light of the Court’s determination that N.B. asserts
11 only habeas claims, see supra Section I.A, N.B. is correct that Respondents waived any
12 challenge to the Court’s personal jurisdiction when they filed their prior Response in
13 Opposition to Request for Immediate Relief. See generally ECF No. 4. The Court
14 therefore concludes that it has personal jurisdiction over Respondents.
15 III. Merits of the Petition
16 This brings the Court to the merits of N.B.’s claims. Respondents assert that there
17 is “no factual basis for [N.B.]’s habeas claims” in Counts One, Four, and Five because
18 “[t]he factors considered to reach an age determination . . . do not violate any statute or
19 regulation,” see Ret. at 7–12 (emphasis omitted), and that N.B.’s Count Five for custody
20 review is premature because he “has [not] yet made an application for parole” and he “has
21 been detained only since May 24, 2019 (fewer than six months), so it is premature to seek
22 judicial intervention.” See id. at 12–13 (citing Jennings v. Rodriguez, 583 U.S. ___, 138
23 S. Ct. 830 (2018); Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018); Yagao v. Figueroa,
24 No. 17-CV-2224-AJB-MDD, 2019 WL 1429582, at *1 (S.D. Cal. Mar. 29, 2019)). Finally,
25 Respondents contend that N.B. cannot obtain the equitable relief he seeks because he is
26 barred by the doctrine of unclean hands due to misrepresentations about his age made
27 during the course of his travels to the U.S. border. See id. at 13–14.
28 / / /
1 A. Injunctive Relief
2 “A federal district court may grant a writ of habeas corpus if the petitioner is ‘in
3 custody in violation of the Constitution or laws or treaties of the United States.’” Lucas v.
4 Nielson, No. 18-CV-07763-HSG, 2019 WL 884012, at *2 (N.D. Cal. Feb. 22, 2019)
5 (quoting 28 U.S.C. § 2241(c)(3)). “Preliminary injunctive relief, however, is a matter of
6 equitable discretion and is ‘an extraordinary remedy that may only be awarded upon a clear
7 showing that the plaintiff is entitled to such relief.’” Id. (quoting Winter v. Natural Res.
8 Def. Council, Inc., 555 U.S. 7, 22 (2008)).
9 In addition to the various declarations from the Court that N.B. seeks, see Pet.
10 ¶¶ 130(b), (c), (f), N.B. also seeks “preliminary and injunctive relief enjoining Defendants
11 from further unlawfully detaining N.B. in custody with unrelated adults.” Id. ¶ 130(d).
12 N.B. must therefore “establish that he is likely to succeed on the merits, that he is likely to
13 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips
14 in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. A
15 preliminary injunction may also be “appropriate when a [petitioner] demonstrates . . . that
16 serious questions going to the merits were raised and the balance of hardships tips sharply
17 in the plaintiff’s favor,” provided the petitioner can also establish the other two Winter
18 factors. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011)
19 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overruled on other
20 grounds by Winter, 555 U.S. 7) (alterations in original). “Under either standard,
21 P[etitioner] bears the burden of making a clear showing that it is entitled to this
22 extraordinary remedy.” Lucas, 2019 WL 884012, at *2 (citing Earth Island Inst. v.
23 Carlton, 626 F.3d 462, 469 (9th Cir. 2010)).
24 1. Likelihood of Success on the Merits
25 N.B. seeks a preliminary injunction “enjoining Defendants from further unlawfully
26 detaining N.B. in custody with unrelated adults.” Pet. ¶ 130(d). As discussed above, see
27 supra Section II.A, this request is premised on various bases for N.B.’s unlawful detention,
28 including Respondents’ violations of (1) the TVPRA and implementing guidance by basing
1 its age determination solely on a dental radiograph, see Pet. ¶¶ 71–91; (2) 8 C.F.R.
2 § 1236.3(d) and the Flores Settlement by failing to house N.B. in a separate
3 accommodation for juveniles, Pet. ¶¶ 92–95, 99–100, 102; (3) the Flores Settlement by
4 (a) failing to place N.B. in the least restrictive setting, Pet. ¶¶ 97–98, or to release him to
5 his cousin, id. ¶¶ 101–02; and (b) preventing N.B. from exercising his rights to seek judicial
6 review of his detention placement or allege noncompliance with the minimum standards
7 for minor detention, id. ¶¶ 103–05; and (4) N.B.’s due process rights under the Fifth
8 Amendment by (a) detaining N.B. for nearly ninety days without a hearing to determine
9 whether his detention is necessary, Pet. ¶¶ 109–11, 118–22; (b) violating N.B.’s right to
10 family integrity by separating him from his cousin, id. ¶¶ 112–14, 118–22; and (c) violating
11 N.B.’s right to be free from physical restraint, id. ¶¶ 115–16, 118–22. In essence, however,
12 each of these claims is premised upon Respondents’ allegedly unlawful determination that
13 N.B. is an adult based on the exclusive use of a dental radiograph.
14 “The TVPRA required HHS and DHS to develop procedures that ‘[a]t a minimum
15 . . . take into account multiple forms of evidence, including the non-exclusive use of
16 radiographs, to determine the age of [a UAC].’” B.I.C., 2016 WL 8672760, at *5
17 (emphasis in original) (quoting 8 U.S.C. § 1232(b)(4)). As explained in B.I.C., “Congress’s
18 mandate that radiographs not be the only basis for an age determination reflects concern
19 about the reliability of such determinations.” Id. at *5. “In 2009, the Office of Inspector
20 General for DHS released a report that acknowledged the House Appropriations
21 Committee had previously ‘expressed concern that ICE was relying on radiographs for age
22 determinations for aliens in its custody, and questioned the reliability of radiographic
23 evidence that ICE uses when determining whether an individual is an adult or juvenile.’”
24 Id. “The report recognized that ‘radiographs of a person’s bones or teeth . . . cannot
25 produce a specific age due to a range of factors affecting an individual’s growth,’ including
26 normal biological variation, cultural and ethnic differences, the timing of puberty, diet,
27 genetics, health, and geography.” Id. “The report also stated, ‘Medical professionals we
28 spoke with expressed skepticism that a radiographic exam could be used to discover
1 specifically whether an individual has attained 18 years of age. However, they did
2 generally agree that radiographic exams could provide a usable age range.’” Id.
3 N.B. contends that “[t]he government has itself stated that the only evidence relied
4 upon for CBP, ICE, and CoreCivic’s continued detention of N.B. with adults is the dental
5 x-ray assessment.” Pet. ¶ 78 (citing Pet. Ex. 12, ECF No. 1-13). Exhibit 12 is an August 5,
6 2019 email from Respondent Castaneda to Mr. Salazar providing that:
7 On June 24, 2019, ICE Health Services Corps (IHSC) ordered a
Dental Age Assessment report which was conducted by a
8
Pediatric and Forensic Dentistry. According to the dental age
9 assessment the subject mean age is 20.24 with a standard
deviation of 2.98 years. The empirical statistical probability the
10
subjects attained 18 years of age is 93.53% which is over the 75%
11 required by policy. Therefore, the subject will be treated as an
adult.
12
13 Pet. Ex. 12 at 1.
14 Respondents contest that their age determination was based solely on N.B.’s dental
15 radiograph, urging that their “determination of Petitioner’s adult status is based, in the first
16 place, on the fact that he repeatedly held himself out as an adult during his journey to the
17 United States and did so with a passport that he conveniently lost and replaced with
18 fraudulent documents.” Ret. at 8. Further, “Guinean extracts of birth certificates are
19 notoriously suspect,” id. at 9, and, “[t]hroughout his petition, Petitioner misrepresents that
20 he has presented to ICE a ‘birth certificate’ as evidence of his date of birth” because “[h]e
21 presented an ‘extract’ of his birth certificate, not his birth certificate.” Id. at 11.
22 N.B. responds that each of Respondents’ arguments is impermissible. See Trav.
23 ¶¶ 34–54. First, N.B. contends that “[a]ny adverse evidence purportedly obtained via the
24 ICE interviews should be disregarded,” id. ¶ 37, because Respondents interviewed N.B. in
25 a language other than his native tongue and without the presence of counsel. Id. ¶ 36.
26 Next, N.B. argues that, “[w]here an applicant states he used a falsified birth date on his
27 documents because ‘he had to lie about his age in order to’ gain entry into the U.S., such
28 falsified birthdate is ‘not a permissible basis for an adverse credibility determination’ by
1 the government.” Id. ¶ 44 (quoting Abuhawa v. Holder, 378 F. App’x 741, 743 (9th Cir.),
2 as amended on denial of reh’g (July 16, 2010)). Further, “the government’s rejection of
3 N.B.’s documents showing his age as 17 is based otherwise principally on the notion that
4 documents from the Republic of Guinea are inherently suspect” and “[t]he government has
5 not addressed the additional documentation N.B. submitted with his Petition (his education
6 system I.D.).” Id. ¶ 47. Finally, “the government routinely cites as evidence only to its
7 intake Form I-213 forms that purport to contain statements by N.B., or which do not even
8 purport to contain statements made by N.B. but which the government nevertheless
9 attributes to N.B.,” id. ¶ 53, but “[t]here are several factors that cast doubt on the contents
10 of the I-213 in this case,” including that “N.B. was never provided a French translator when
11 interviewed in Mexico” and “the government did not allow N.B. to consult with his
12 attorneys during his most crucial interview.” Id. ¶ 54.
13 The Court concludes that N.B. has carried his burden of establishing a strong
14 likelihood that Respondents impermissibly determined that he is not a minor given the
15 totality of the evidence presented by N.B. Not only did Respondents represent to N.B.’s
16 counsel that their age determination was based solely on a dental radiograph in violation
17 of the TBPRA, see Pet. Ex. 12, but Respondents’ post hoc justifications on alternative bases
18 for their age determination are contrary to the law and fail properly to consider the totality
19 of other evidence probative of N.B.’s minority, including his extract of birth certificate and
20 government-issued student identification card.
21 First, the Court determines that Respondents improperly considered N.B.’s
22 representations that he was born in December 1992.8 N.B. concedes that he misrepresented
23
24
8 Respondents also contend that Petitioner used a December 2000 birthdate. See Ret. at 2 (citing Resps.’
25 Ex. at 6). In his verified Traverse, N.B. “disputes this,” attesting that he “never gave a December 2000
date to Mexican officials.” Trav. ¶ 31(a). Not only is “[t]he government is relying on a ‘system generated’
26 intake form devoid of any underlying evidence, such as a transcript, to show that N.B. ever made this
representation,” but “either [N.B.] and the Mexican officials misunderstood each other as a result of the
27
Mexican authorities’ failure to provide N.B. a French translator, or who[]ever input the information into
28 the intake system mistyped his actual birthdate, which is exactly one year later.” Id. The Court therefore
1 that he was an adult at certain points in his travels to the United States border, but, as he
2 notes, see Trav. ¶ 39, “in the circumstance of a refugee fleeing persecution, such
3 ‘misrepresentations are wholly consistent with his testimony and application for asylum:
4 he did so because he feared deportation to [his country of origin].’” Akinmade v. INS, 196
5 F.3d 951, 955 (9th Cir. 1999) (quoting Turcios v. INS, 821 F.2d 1396, 1400–01 (9th Cir.
6 1987)). Given that N.B. used the December 1992 birthdate only to avoid being detained
7 or deported prior to reaching the United States border, the Court determines that
8 Respondents impermissibly relied on N.B.’s assertions that he was born in December 1992
9 to contravene his evidence that he was actually born in 2001. See Trav. ¶ 30(b).
10 Next, the Court determines that Respondents improperly considered the documents
11 that N.B. did and did not have in his possession when he arrived at the United States border.
12 See Ret. at 8–11. As for the documents N.B. did not have, Respondents contend that N.B.
13 “conveniently lost” his Guinean passport. See id. at 8. N.B., however, testified under oath
14 that he lost his passport in Guatemala. See Resps.’ Ex. at 19–20. Respondents cannot rely
15 solely on speculation to conclude that N.B. disposed of his Guinean passport to conceal
16 that he is not a minor.9 See Yun Wang v. Holder, 404 F. App’x 196, 197 (9th Cir. 2010)
17 (citing Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000)).
18 As for the documents N.B. did have in his possession, Respondents contend that
19 N.B.’s extract of birth certificate is “fraudulent” and/or suspect based on several
20 arguments:
21 • First, Respondents claim that N.B.’s extract of birth certificate was “recently
22 acquired by someone posing as Petitioner’s deceased father” and that “[t]he fact that the
23
24
25 9 In any event, it would seem unlikely based on the very radiographic analysis upon which Respondents’
now depend that N.B.’s passport would have shown that he actually was born in December 1992. See
26 Ret. at 9 (insinuating that N.B.’s passport was a valid document that would have corroborated the date of
birth N.B. had provided to officials). This birthdate would make N.B. twenty-seven years old, but the
27
dental age assessment was consistent with “a male . . . 17.26 to 23.23 years.” Resps.’ Ex. at 24. Based
28 on the dental radiograph results, it is therefore much more likely that N.B. was born in December 2001,
1 documents were obtained under false pretenses is itself indirect evidence that Petitioner is
2 not a minor.” Ret. at 8. In his verified Traverse, however, N.B. explains that “[n]o one
3 impersonated N.B.’s father as the government claims” because “N.B.’s cousin obtained a
4 judgment entitling her to obtain N.B.’s birth certificate extract, on behalf of N.B.’s
5 deceased father’s estate, and on behalf of and authorized by N.B. himself, according to the
6 Guinean Civil Code.” Trav. ¶ 33(3)(b) (emphasis in original). The Court therefore
7 dismisses Respondents’ contention that N.B.’s documents were obtained fraudulently in
8 light of N.B.’s explanation.
9 • Second, Respondents attempt to establish that N.B. has been less than
10 forthright in his representations concerning his extract of birth certificate, arguing that N.B.
11 “misrepresents that he has presented to ICE a ‘birth certificate’” and filed with the Court a
12 false translation indicating that the document is a “birth certificate.” See Ret. at 11. The
13 Court declines to conclude that N.B. or his counsel was attempting to mislead the Court.
14 Not only is it far more likely that any confusion was due to language barriers, but the Court
15 declines to attribute to N.B.’s counsel any fraudulent intent related to the filing of a certified
16 translation identifying the document as a “birth certificate” rather than an “extract of birth
17 certificate.” Compare Pet. Ex. 1, with Pet. Ex. 2, ECF No. 1-3.
18 • Third, Respondents make much of a birth certificate belonging to Mohamed
19 Saliou Bah that was allegedly found in N.B.’s possession. See Ret. at 11. In his verified
20 Traverse, however, “N.B. disputes that he was ever in possession of another person’s birth
21 certificate, or any birth certificate showing a 2002 birthdate.” Trav. ¶ 33(5)(a). Even if
22 N.B. did possess the birth certificate of another individual born in 2002, that does not
23 suffice to support speculation that N.B.’s other documents are fraudulent in some
24 unspecified way.
25 • Fourth and most troubling, Respondents claim that “Guinean extracts of birth
26 certificates are notoriously suspect,” see Ret. at 8–10, without introducing any evidence
27 that N.B.’s extract of birth certificate in particular is in any way suspect. See Trav. ¶ 47.
28 As N.B. notes in his Traverse, Respondents’ argument is based solely on “a Refworld
1 report from the Immigration and Refugee Board of Canada that itself states it ‘is not, and
2 does not purport to be conclusive.’” Trav. ¶ 4 (quoting ECF No. 4-2 at 8). The Court must
3 agree with N.B. that “the idea that the government can prejudge an entire country’s
4 documents as inauthentic ab initio is preposterous—it is pernicious discrimination based
5 on a suspect classification of national origin and alienage.” See id. ¶ 48. In the absence of
6 any indications that N.B.’s extract of birth certificate in particular is suspect or fraudulent,
7 the Court determines that Respondents impermissibly relied on the generalization that all
8 Guinean extracts of birth certificate are suspect in determining that N.B. is not a minor.
9 See Virk v. Gonzales, 238 F. App’x 316, 317 (9th Cir. 2007) (“Because the agency
10 improperly used the country report to discredit specific testimony regarding [the
11 applicant]’s personal experience, these findings are not supported by substantial
12 evidence.”).
13 Finally, Respondents fail entirely to take into account N.B.’s government-issued
14 photo identification. See, e.g., Trav. ¶ 6. The identification card provides a photo of N.B.,
15 see Pet. Ex. 3, that Respondents do not contend fails to match those in N.B.’s records. See
16 Resps.’ Ex. at 5a–11. The photo identification card also provides a 2001 date of birth. See
17 Pet. Ex. 3. This identification card corroborates N.B.’s claim that his true date of birth is
18 in December 2001, rendering him a minor.
19 Viewing all evidence in its totality, N.B. had in his possession two forms of
20 identification showing that his date of birth was in December 2001, making him a minor.
21 N.B. forthrightly informed Respondents that he had lied about his age during his travels to
22 avoid being deported or detained prior to reaching the United States border. Nonetheless,
23 Respondents discredited this evidence based on speculation and generalizations, permitting
24 them to obtain a dental radiograph that is not inconsistent with N.B.’s claim that he is nearly
25 eighteen years old. Not only has N.B. established a high likelihood that Respondents relied
26 exclusively on the dental radiograph in determining his age in violation of the TVPRA,
27 but—based on the totality of the evidence before Respondents—it also appears likely that
28 the radiograph itself was impermissible. See B.I.C., 2016 WL 8672760, at *5 (noting that
1 the ORR Guide “permits radiographs ‘if other information is inconclusive’”).
2 Consequently, “the Court concludes that petitioner has a strong likelihood of success on
3 the merits of his claim that [Respondents’] age determination is invalid under the TVPRA
4 . . . . As such, petitioner also has a strong likelihood of success on his claim that
5 respondents unlawfully placed him in DHS custody.” See id. at *6.
6 2. Likelihood of Irreparable Harm
7 To obtain preliminary injunctive relief, N.B. must also demonstrate that “he is likely
8 to suffer irreparable harm in the absence of preliminary relief.” B.I.C., 2016 WL 8672760,
9 at *4 (quoting Winter, 555 U.S. at 20). “The Ninth Circuit has recognized ‘the irreparable
10 harms imposed on anyone subject to immigration detention (or other forms of
11 imprisonment).’” Meza v. Bonnar, No. 18-CV-02708-BLF, 2018 WL 2554572, at *4
12 (N.D. Cal. June 4, 2018) (Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)). This
13 harm would appear particularly acute and irreparable where the detainee may be a minor
14 being held in contravention of the specific protections granted by the TVPRA and Flores
15 Settlement. See, e.g., 8 U.S.C. § 1232(b) (indicating that one purpose of the TVPRA is to
16 “[c]ombat[] child trafficking and exploitation in the United States”); Flores Settlement
17 ¶ 11, ECF No. 1-14 (recognizing “special concern for [minors’] particular vulnerabilities”).
18 The Court therefore concludes that N.B. has met his burden of demonstrating irreparable
19 harm.
20 3. Public Interest and Balance of Equities
21 “[T]he harm to the opposing party and weighing the public interest . . . factors merge
22 when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
23 “[T]he public interest favors applying federal law correctly.” B.I.C., 2016 WL
24 8672760, at *7 (alteration in original) (quoting Small v. Avanti Health Sys., LLC, 661 F.3d
25 1180, 1197 (9th Cir. 2011)) (citing N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1113 (9th
26 Cir. 2010) (“[I]t is obvious that compliance with the law is in the public interest.”)). “As
27 discussed above, petitioner has established a strong likelihood of success on the merits of
28 his claim that respondents have violated the TVPRA.” See id.
1 Further, “the general public[ ha]s [an] interest in the efficient allocation of the
2 government’s fiscal resources,” and “[t]he Ninth Circuit has recognized that [t]he costs to
3 the public of immigration detention are staggering.” Meza, 2018 WL 2554572, at *4
4 (internal quotation marks omitted) (quoting Hernandez, 872 F.3d at 996)). On the other
5 hand, N.B.’s cousin is “willing and able to ensure that N.B. appears at any and all
6 immigration hearings.” Pet. ¶ 36; see also Pet. Ex. 9, ECF No. 1-10. “Given the low risk
7 of Petitioner’s causing harm to others . . . , such expenditure in h[is] case would not benefit
8 the public.” See Meza, 2018 WL 2554572, at *4. “Accordingly, the public interest and
9 balance of equities weigh in his favor.” See B.I.C., 2016 WL 8672760, at *7.
10 The Court therefore concludes that N.B. has met his burden of establishing his
11 entitlement to a preliminary injunction “enjoining Defendants from further unlawfully
12 detaining N.B. in custody with unrelated adults.” See Pet. ¶ 130(d).
13 B. Unclean Hands
14 Respondents argue that N.B. is barred from seeking habeas relief by the doctrine of
15 unclean hands as a result of the alleged misrepresentations about his age made before N.B.
16 reached the U.S. border. See Ret. at 13–14. N.B. rejoins that “[t]he Supreme Court has
17 explicitly rejected that notion that ‘ad hoc equitable departures from the Habeas Corpus
18 Rules’ [such as the doctrine of unclean hands] are ‘authorized.’” Trav. ¶ 58 (quoting
19 Lonchar v. Thomas, 517 U.S. 314, 328 (1996)). Further, “even if the Court were authorized
20 to apply the unclean hands doctrine in this case, the government’s unclean hands defense
21 is based on the government’s misunderstanding of the facts.” Id. ¶ 60.
22 Like N.B., see id. ¶ 59, the Court has not located any authority supporting
23 Respondents’ contention that an unclean hands defense is applicable in the habeas context.
24 Accordingly, the Court concludes that it would be inappropriate to consider Respondents’
25 unclean hands defense. See Lonchar, 517 U.S. at 328. In any event, the Court concludes
26 that Respondents’ alleged misrepresentations do not “render[] inequitable the assertion of
27 [the] rights [he now asserts] against the [Respondent]s.” See Ret. at 13–14 (quoting
28 Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985) (quoting Republic
1 || Molding Corp. v. B.W. Photo Utils., 319 F.2d 347, 349 (9th Cir. 1963))); see also supra
2 Sections III.A.1, 3.
3 CONCLUSION
4 In light of the foregoing, the Court (1) APPOINTS Mr. Salazar as N.B.’s next friend
5 ||for purposes of this Petition; and (2) PRELIMINARILY ENJOINS Respondents from
6 ||further unlawfully detaining N.B. in custody with unrelated adults, i.e., Respondents
7 ||SHALL TREAT N.B. as a minor for purposes of his immigration detention and
8 ||immigration proceedings until his eighteenth birthday, as reflected on his Guinean extract
9 || of birth certificate. The Parties SHALL FILE a Joint Status Report within three (3) days
10 || of the electronic docketing of this Order.
11 IT IS SO ORDERED.
12
13 ||Dated: October 1, 2019 he it. Jt, itee-
14 on. Janis L. Sammartino
United States District Judge
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