The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
C.T.M., §
§
Petitioner, §
§
v. § CIVIL ACTION NO.
§ 3:20-CV-0540-B-BT
MARC J. MOORE, Dallas Field Office §
Director, Immigration and Customs §
Enforcement, Department of Homeland §
Security, et al., §
§
Respondents. §
MEMORANDUM OPINION & ORDER
Before the Court is Petitioner C.T.M.’s Motion for Temporary Restraining Order (TRO)
(Doc. 8). After considering the parties’ briefing and holding a hearing on the motion on March 12,
2020, the Court denied C.T.M.’s motion. This Order further explains the Court’s reasoning.
I.
BACKGROUND
A. Legal Background
Through the Homeland Security Act of 2002, the functions of the Immigration and
Naturalization Services (INS) were split between the Department of Homeland Security (DHS) and
the Department of Health and Human Services (HHS). See Homeland Security Act, Pub. L. No.
107-296, 116 Stat. 2135 (2002). DHS was charged with enforcing immigration law, while HHS was
given the responsibility of caring for immigrant children. See generally id.
Further, in 2008, the William Wilberforce Trafficking Victims Protection Reauthorization
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Act (TVPRA) conferred HHS with authority over “the care and custody of all unaccompanied alien
children, including responsibility for their detention . . . .” 8 U.S.C. § 1232(b)(1). Accordingly, the
TVPRA requires that, absent exceptional circumstances, “any department or agency of the Federal
Government that has an unaccompanied alien child in custody shall transfer the custody of such
child to [HHS] not later than 72 hours after determining that such child is an unaccompanied alien
child.” Id. § 1232(b)(3). Further, the TVPRA requires that HHS, in conjunction with DHS,
“develop procedures to make a prompt determination of the age of an alien, which shall be used by
[DHS] and [HHS] for children in their respective custody.” Id. § 1232(b)(4). These procedures
“shall take into account multiple forms of evidence, including the non-exclusive use of radiographs,
to determine the age of the unaccompanied alien.” Id.
B. Factual Background1
C.T.M. is a national of the Democratic Republic of the Congo (DRC). Doc. 1, Pet., ¶ 15. She
alleges she was born in 2002 and is currently seventeen-years-old. Id. In 2014, her father attempted
to arrange for her to flee the DRC due to increasing violence. Id. ¶ 16. Earlier that year, a group of
thieves had broken into C.T.M.’s home and physically assaulted her. Id. In attempting to make
arrangements for C.T.M. thereafter, C.T.M.’s father indicated to the U.S. Government, on a visa
application, that C.T.M. was born in 1993, rather than 2002—the year she states she was born. Id.
C.T.M.’s father regularly subjected her to physical abuse, and she did not question his
misrepresentation on the visa application. Id. After the visa application was denied, C.T.M. remained
in the DRC. Id.
1The facts are drawn from C.T.M.’s habeas petition and the parties’ briefing on C.T.M.’s motion.
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In 2016, supporters of the Kamwina Nsapu rebellion beat and sexually assaulted C.T.M.
Id. ¶ 17. During this attack, C.T.M. was separated from her family, and she believes the rebellion
caused the deaths of her immediate family members. Id. After C.T.M. was attacked, strangers nursed
her to health and brought her to Angola, where she sought medical treatment. Id. ¶¶ 17–18.
While in Angola, C.T.M. worked for a Brazilian couple. When they arranged to bring her to
Brazil with them, she left Angola in hopes of finding her family in the DRC. Id. ¶ 19. But after
C.T.M. was unable to find her family and realized that the DRC was still dangerous, she flew to Brazil
to meet the Brazilian couple. Id.
In Brazil, C.T.M. worked as the couple’s housekeeper. Id. ¶ 20. But after about three months
of C.T.M. working in their home, the couple asked C.T.M. to traffic drugs for them. Id. She refused,
and they threatened to kill her—so she fled to Mexico. Id. ¶¶ 20–21.
After arriving in Mexico, C.T.M. slept in the streets until she met a man who brought her
to a shelter. Id. ¶ 21. Through connections C.T.M. made at the shelter, she traveled to Tijuana and
arrived at the U.S. border. Id.
On June 6, 2019, C.T.M. requested asylum. Id. When C.T.M. entered the United States, she
told DHS that she was a minor and presented her Congolese birth certificate as evidence. Id. ¶ 22.
Despite this evidence, however, DHS did not transfer C.T.M. to HHS, because Immigration and
Customs Enforcement (ICE)—an agency of DHS—determined that she was an adult. Doc. 15-1,
Resp., 2–3. Thus, C.T.M. remained in the custody of DHS. Id. at 3.
For the first month of her time in custody, C.T.M. was in a holding facility, where she slept
on a mat on the floor. Doc. 1, Pet., ¶ 23. She was constantly hungry and could only bathe once a
week. Id.
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Due to her asylum request, C.T.M. had a credible fear interview. Id. ¶ 24. During the
interview, she again informed the officials that she was a minor. Id. So ICE officials conducted a
radiographic dental exam on C.T.M. to determine her age. Id.
On February 14, 2020—after C.T.M. was placed in removal proceedings—Immigration Judge
(IJ) Barcus held an evidentiary hearing, as requested by C.T.M., to determine her age. Id. ¶¶ 25, 27.
At the hearing, C.T.M. presented additional evidence, including school records, an affidavit from
a family friend, and more testimony. Id. ¶ 27. She explained that her father might have previously
misrepresented her age in an attempt to save her life. Id. IJ Barcus considered this evidence, along
with the visa application submitted by C.T.M.’s father and the dental report from DHS that
concluded that C.T.M. was “20.46 years old, plus or minus 4.89 years.”Id. ¶ 28.2 Ultimately, IJ Barcus
determined that C.T.M. was a minor, and ICE waived appeal of the issue. Id.
Moreover, at the end of the hearing, C.T.M. told her attorney that “she was being harassed
in the detention center due to her skin color.” Id. ¶ 29. After an officer overheard this, the officer
advised that C.T.M. would be separated from the rest of the population. Id. Accordingly, after the
hearing, C.T.M. was separated from the general population at her facility. Id. ¶ 31. Thereafter,
C.T.M. was placed on suicide watch and hospitalized once after fainting. Id. Further, while in ICE
custody, C.T.M. participated in a “Harm Assessment,” which indicated that she has untreated
posttraumatic stress disorder (PTSD). Doc. 8, Mot., 14. Additionally, a recent psychiatric evaluation
of C.T.M. concluded that she is experiencing symptoms of PTSD; major depressive disorder; and
2 C.T.M. objected that the dental exam evidence was unreliable and filed an expert statement in
support.
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generalized anxiety disorder. Id. at 19.3
On the same day that IJ Barcus determined that C.T.M. is a minor, ICE officials referred
C.T.M. to HHS custody based on IJ Barcus’s order. Doc. 15-1, Resp., 3. Nonetheless, the Office of
Refugee Resettlement (ORR)—an agency within HHS—denied placement, concluding that C.T.M.
was an adult. Doc. 15-1, Resp., 3. ORR first denied placement on February 14, 2020. Id. Then, ORR
again denied placement on February 21, 2020, after reviewing:
CTM’s college records from Brazil indicating admission in 2019; an immigration
document from Congo listing the date of birth as November 27, 1996; a ‘Certificate
of Migration Flows’ document from Brazil also indicating a birth date of November
27, 1996; a birth certificate listing the birth year as 2002; a vaccination record; and
the witness list and supporting documents provided by CTM’s attorney at the
February 14 immigration court hearing.
Doc. 15-3, App. (Cruz Decl.), 5–6. Thus, C.T.M. remained in ICE/DHS custody.
On February 25, 2020, DHS filed a motion in immigration court, seeking a new hearing
before IJ Barcus in light of ORR’s placement denial. Doc. 1, Pet., ¶ 32; Doc. 15-1, Resp., 3. In the
motion, DHS indicated that it sent evidence of C.T.M.’s age to ORR, and ORR determined that
C.T.M. was an adult. Doc. 1, Pet., ¶ 32.
Two days after this motion was filed, C.T.M.’s counsel contacted ORR and provided it with
C.T.M.’s testimony from the evidentiary hearing and her sworn affidavit. Id. ¶ 33. C.T.M.’s counsel
submitted this additional evidence based on the belief that “ICE . . . did not send [ORR] C.T.M.’s
oral testimony.” Id. ¶ 32. But one day later, ORR responded, informing C.T.M.’s counsel that it still
believed C.T.M. was an adult. Id. ¶ 33; see Doc. 15-3, App. (Cruz Decl.), 7.
3 At the hearing, Respondents informed the Court that since this diagnosis, C.T.M. has returned to
the general population.
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Since then, IJ Barcus has held a hearing on DHS’s motion, explaining that to obtain
reconsideration of his age determination, DHS must file a motion requesting such relief. Doc. 15-1,
Resp., 5. Accordingly, DHS intends to do so, and it has requested that C.T.M.’s counsel “provide
any additional evidence of C.T.M’s age that had not been previously provided to DHS.” Id.
Given that C.T.M. is still being held as an adult, she filed her petition for writ of habeas
corpus and writ of mandamus with this Court on March 2, 2020. Doc. 1, Pet. Through her petition,
C.T.M. seeks release from adult detention and transfer to a facility for children. Id. ¶ 60.
On March 7, 2020, C.T.M. filed her motion for a TRO, seeking a TRO “directing ICE from
treating C.T.M. as an adult and providing her medical treatment for her PTSD.” Doc. 8, Mot. for
TRO, 5.4 On March 10, 2020, Respondents filed their response (Doc. 15). The following day,
C.T.M. filed a reply (Doc. 17). Finally, on March 12, 2020, the Court held a hearing for
consideration of the motion. See Doc. 21, Electronic Minute Entry. At the hearing, the Court denied
C.T.M.’s motion for the reasons set forth below.
II.
LEGAL STANDARD
“Injunctive relief is an extraordinary and drastic remedy, and should only be granted when
the movant has clearly carried the burden of persuasion.” Anderson v. Jackson, 556 F.3d 351, 360 (5th
Cir. 2009). To obtain a preliminary injunction, a plaintiff must show “(1) a substantial likelihood of
success on the merits; (2) a substantial threat that it will suffer irreparable injury absent the
4 Because this relief would “command[] some positive, status-quo altering act[s],” C.T.M. is seeking
mandatory, rather than prohibitory, injunctive relief. See Arbor Bend Villas Housing, L.P. v. Tarrant Cty.
Housing Fin. Corp., 2002 WL 1285564, at *2 (N.D. Tex. June 6, 2002) (citation omitted).
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injunction; (3) that the threatened injury outweighs any harm the injunction might cause the
defendants; and (4) that the injunction will not impair the public interest.” Enrique Bernat F., S.A.
v. Guadalajara, Inc., 210 F.3d 439, 442 (5th Cir. 2000). “A temporary restraining order .. . is simply
a highly accelerated and temporary form of preliminary injunctive relief, which requires that party
seeking such relief to establish the same four elements for obtaining a preliminary injunction.” BNSF
Ry. Co. v. Panhandle N. R.R. LLC, 2016 WL 10827703, at *1 (N.D. Tex. Dec. 30, 2016) (internal
quotations omitted).
In contrast with prohibitive preliminary relief, “mandatory preliminary relief, ... which goes
well beyond simply maintaining the status quo [during litigation], is particularly disfavored, and
should not be issued unless the facts and law clearly favor the moving party.” Three Expo Events,
L.L.C. v. City of Dallas, 182 F. Supp. 3d 614, 622 (N.D. Tex. 2016) (quotation marks omitted)
(quoting Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)).
Ill.
ANALYSIS
C.T.M. asserts that she has a substantial likelihood of success on the merits based on her
claims under: (1) the Fifth Amendment due process clause; (2) 29 U.S.C. § 701 et seqg., the
Rehabilitation Act; (3) 8 U.S.C. § 1232, the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA); (4) 8 C.F.R. § 1236.3, the Flores Settlement Agreement
(FSA); and (5) the Prison Rape Elimination Act (PREA). Doc. 8, Mot., 11. Based on the claims in
C.T.M.’s pleadings, she has not established a substantial likelihood of success on the merits, as
explained below.
At the hearing, C.T.M. raised a new argument: that Respondents unreasonably delayed in
conducting a proper age determination for C.T.M. from June of 2019 to February of 2020. This
argument could support C.T.M.’s substantive due process and TVPRA claims. But even if the Court
assumes a substantial likelihood of success on the merits based on this allegation of unreasonable
delay, C.T.M. cannot show a threat of irreparable harm, because any viable allegation of irreparable
harm hinges upon C.T.M.’s entitlement to the benefits of an unaccompanied minor child. See infra
section ITI.B. Given, as discussed below, that Respondents likely made a lawful determination that
C.T.M. is not a minor following the alleged delay, C.T.M. has not established a substantial threat
of irreparable harm.
In sum, the Court concludes that C.T.M. has not established a substantial likelihood of
success on the merits on the claims in her pleadings. And even if the Court were to recognize a
likelihood of success on the merits based on C.T.M.’s claim of unreasonable delay, which she raised
at the hearing, she has not shown a substantial threat of irreparable harm. Thus, the Court does not
analyze the balance of harms or the public’s interest, and DENIES C.T.M.’s motion for a TRO.
A. Substantial Likelihood of Success on the Merits
1. Fifth Amendment Due Process Clause
a. Substantive due process
As to her allegations of substantive due process violations, C.T.M. contends that because she
is detained as an adult, she has less access to her legal counsel and more difficulty participating in
proceedings. Doc. 1, Pet., 1 36. Moreover, C.T.M. alleges that “Respondents’ actions are also
inconsistent with the substantive due process provided by the Administrative Procedure Act, which
prohibits a government agency from unreasonably withholding or delaying action.” Id. 1 37 (citing
5 U.S.C. § 706(1)).
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Based on her allegations, C.T.M. is unlikely to prevail on either substantive due process
claim. “The standard for measuring a violation of substantive due process is conduct that ‘shocks the
conscience.” Malone Mortg. Co. Am., Ltd. v. Martinez, 2002 WL 31114160, at *24 (N.D. Tex. Sept.
23, 2002) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). This “standard is satisfied
where the conduct was ‘intended to injure in some way unjustifiable by any government interest,’
or in some circumstances if it resulted from deliberate indifference.” M.D. by Stukenberg v. Abbott,
907 F.3d 237, 251 (5th Cir. 2018) (quoting Roseles-Mireles v. United States, 138 S. Ct. 1897, 1906
(2018)).
C.T.M. has not alleged any conduct by Respondents that “shocks the conscience.” Malone,
2002 WL 31114160, at *24. Her first allegation—that Respondents continue detaining C.T.M. as
an adult—seems logical, given that ORR indicated to ICE that it would not take C.T.M. into
custody due to its own age determination. See Doc. 15-1, Resp., 19. This is the only conduct to
which C.T.M. points to support her claim that Respondents are hindering her from participating in
her proceedings. Absent a more shocking allegation, C.T.M. is not likely to prevail on this basis.
Second, C.T.M.’s substantive due process allegation that Respondents have unreasonably
delayed likewise appears to fall short. Given that “ICE officials referred C.T.M. to the custody of
[ORR]” on the same day of IJ Barcus’s order, and notified ORR of his order,” Doc. 15-1, Resp., 3,
Respondents do not appear to be unreasonably delaying. Thus, C.T.M. is unlikely to prevail on her
substantive due process claim.
° As discussed above, C.T.M.’s new unreasonable delay allegation does not warrant injunctive relief
either, because even if she could prevail on a substantive due process claim based on the delay, she has not
shown irreparable harm.
b. Procedural due process
C.T.M. next contends that “ICE’s age determination violated [her] procedural due process
rights” because “it was based on unreliable evidence and failed to consider the totality of the
evidence such as her testimony, a corroborating affidavit, and school and government records.” Doc.
8, Mot., 12. In her reply brief, C.T.M. specifically emphasizes ICE’s and ORR’s alleged failure to
consider her testimony before IJ Barcus. Doc. 17, Reply, 5.
Under the circumstances, C.T.M. is not likely to prevail on her procedural due process claim.
“The requirements of procedural due process are flexible and call for such procedural protections as
particular situation demands.” Gibson v. Tex. Dep’t of Ins.–Div. of Workers Comp., 700 F.3d 227, 239
(5th Cir. 2012) (citation and quotation marks omitted) (alteration incorporated). Ultimately, “the
requirements of due process are dependent on three factors:” (1) the private interest affected; (2)
the “risk of an erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards”; and (3) the Government’s interest.
Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Here, C.T.M. has not shown that the procedures used by Respondents were insufficient. Most
notably, C.T.M.’s claim hinges on Respondents’ failure to consider “the totality of the evidence.”
Doc. 8, Mot., 12. But not only did ORR review the evidence submitted by C.T.M., but it also
considered a variety of other records. See supra at 5. Further, though C.T.M. disputes whether ORR
actually considered her testimony, Cruz—the individual responsible for ORR’s age
determination—stated in his declaration that, one day after C.T.M.’s counsel emailed him the
testimony, he informed both ICE and C.T.M.’s counsel that he determined C.T.M. was not a minor.
Doc. 15-3, App. (Cruz Decl.), 7. In his email to C.T.M.’s counsel, Cruz explained that his conclusion
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remained the same despite her additional submitted evidence, which would include the testimony.
See id. Thus, C.T.M.’s allegation that Respondents failed to consider the totality of the evidence lacks
force, and she will not likely succeed on the merits of her procedural due process claim.
2. The Rehabilitation Act
Next, C.T.M. claims that Respondents have violated the Rehabilitation Act by “fail[ing] to
provide C.T.M. with medical treatment [for her PTSD] and thereby excluding her from the age
determination process.” Doc. 8, Mot., 14. Specifically, C.T.M. explains that she “was forced to
decline an interview” with ICE “because of her mental health.” Id. According to C.T.M., ICE’s
failure to provide treatment, resulting in her inability to participate in the interview, violates Section
504 of the Rehabilitation Act, which provides:
No otherwise qualified individual with a disability in the United States . . . solely by
reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance or under any program or activity conducted by any
Executive agency. . . .
29 U.S.C. § 794(a).6
But C.T.M. lacks evidence suggesting that she was excluded from her age determination. The
only evidence upon which C.T.M relies is that she had to decline an interview with ICE due to her
mental health. C.T.M. has twice received the opportunity to submit evidence on her behalf through
her counsel, and she even testified before IJ Barcus. Thus, C.T.M.’s Rehabilitation Act claim is
unlikely to prevail.
6 C.T.M. also alleges that this failure to provide medical care violates DHS’s regulations implementing
the Rehabilitation Act. Doc. 8, Mot., 13.
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3. The William Wilberforce Trafficking Victims Protection Reauthorization Act
C.T.M. also claims that Respondents violated the TVPRA by treating C.T.M. as an adult.
Doc. 8, Mot., 15–16. Specifically, C.T.M. alleges that Respondents have violated the provision of
the TVPRA requiring transfer of an unaccompanied alien child to the custody of HHS within 72
hours, 8 U.S.C. § 1232(b)(3), by refusing to transfer C.T.M. to HHS custody. Doc. 8, Mot., 15–16.
The Court disagrees. Though the TVPRA requires prompt transfer of aliens determined to
be unaccompanied minors, the TVPRA also provides HHS—and thus ORR—with the authority to
develop procedures for age determinations. See 8 U.S.C. § 1232(b)(4); see also B.I.C. v. Asher, 2016
WL 8672760, at *2 (W.D. Wash. Feb. 19, 2016) (“The protections TVPRA affords [unaccompanied
alien children] apply after the HHS, in consultation with the DHS, determines that the applicant
is indeed a child.” (citing 8 U.S.C. § 1232(b))). Given that ORR appeared to followed those
developed procedures in conducting its own age determination, there is not likely a violation of the
TVPRA. Cf. B.I.C., 2016 WL 8672760, at *6 (concluding that the petitioner established a likelihood
of success on his claim that ORR violated the TVPRA, which requires “the non-exclusive use of
radiographs,” when ORR relied “exclusively on [a] radiographic analysis” to determine petitioner’s
age). Accordingly, C.T.M. is not likely to prevail on the merits of her TVPRA claim.
4. The Flores Settlement Agreement7
Next, C.T.M. contends that Respondents have violated the FSA by failing to place C.T.M.
“in a less restrictive setting” through a bond hearing. Doc. 8, Mot., 14–15. Paragraph 24 of the FSA
7 When discussing the alleged violation of the FSA, C.T.M. also suggests that Respondents violated
a federal regulation governing the detention of juveniles. See 8 C.F.R § 1236.3(d). The parties’ arguments
with respect to a violation of the FSA are the same as those regarding a violation of this regulation.
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requires that “[a] minor in deportation proceedings shall be afforded a bond determination hearing
before an immigration judge . . . .” See Stipulated Settlement Agreement ¶ 24, Flores v. Reno, No.
CV-85-4544-RJK-PX (C.D. Cal. Jan. 17, 1997).
Respondents, on the other hand, argue that since they determined that C.T.M. is not a
minor, the provisions of the FSA do not apply to C.T.M. See Doc. 15-1, Resp., 17–18.
The Court agrees with Respondents, given that the FSA provides protection only to minors
who are determined to be minors. See Stipulated Settlement Agreement, ¶ 13. For context, the FSA
was reached in 1987 in response to a constitutional challenge to INS’s policies regarding
unaccompanied minors. See Stipulated Settlement Agreement, at 3. Given that the FSA implies
INS’s ability to make age determinations, and INS’s functions are now split between DHS and HHS,
it appears that DHS or HHS may make an age determination under the FSA. Because both have
done so here—through ICE and ORR, respectively—C.T.M. is not entitled to the protections of the
FSA.
5. The Prison Rape Elimination Act
Finally, C.T.M. suggests that Respondents violated the PREA, which “requires that a minor
shall not ‘have sight, sound, or physical contact with any adult’ detainee . . . .” Doc. 8, Mot., 1 (citing
28 C.F.R. § 115.114(a)).
But C.T.M. does not have a viable claim under the PREA. The Fifth Circuit has
acknowledged that “other courts . . . have found that the PREA does not establish a private cause
of action for allegations of prison rape.” Krieg v. Steele, 599 F. App’x 231, 232–33 (5th Cir. 2015) (per
curiam) (collecting cases). Likewise, district courts appear to deny any private cause of action exists
under the PREA. See, e.g., Harold v. Goff, 2016 WL 8137642, at *4 (W.D. La. Dec. 1, 2016). And,
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in any event, C.T.M.’s PREA claim challenges the conditions of her confinement, but “a petitioner
may not challenge the conditions of confinement through a habeas action.” Vetcher v. Sessions, 2018
WL 4006813, at *2 (N.D. Tex. Aug. 7, 2018) (citation omitted), adopted by 2018 WL 4110678
(N.D. Tex. Aug. 28, 2018). Thus, C.T.M.’s PREA claim fails.
B. Substantial Threat of Irreparable Injury
C.T.M. first contends that, if she is detained as an adult, she will face irreparable harm
“because she will be deprived of her right to effectively participate in the administrative proceedings
relating to her claim.” Doc. 8, Mot., 18. C.T.M. describes the severe trauma she has faced, resulting
in her recent hospitalization, mental illness diagnoses, and the prescription of psychotropic
medications. Id. at 18–19. While being detained as an adult, C.T.M. states, her mental health
treatment has included “a mental health/psychiatry line, recommendations of wellness activities of
which include exercise, reading, art etc.” Id. at 19. C.T.M. contends that she “is in need of more
intensive mental health treatment,” and she appears to suggest that unaccompanied minors in HHS
custody receive superior care. See id. Additionally, C.T.M. contends that her detention deprives her
of the opportunity to be “placed in the least restrictive setting . . . .” Id. at 20.
Based on the facts presented, C.T.M. has not established a substantial threat of irreparable
injury. First, as previously discussed, there is little evidence suggesting that C.T.M. has been excluded
from her age determination. Second, while the Court recognizes C.T.M.’s diagnoses, she is receiving
mental health treatment, including appointments with professionals, counseling, and psychotropic
medications. Id. at 19; Doc. 15-1, Resp., 21. Though ORR might offer additional mental health
services, C.T.M. has not established that without a transfer to ORR custody, she faces a substantial
threat of irreparable injury.
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As to C.T.M.’s third contention—that she is not held ina less restrictive setting—the Court
recognizes that this could constitute irreparable harm. But C.T.M. is only entitled to a less restrictive
placement under the TVPRA if she is, indeed, determined to be a minor. Thus, whether C.T.M.
faces a substantial threat of this harm is intertwined with the merits of C.T.M.’s claims. Because the
Court concluded that C.T.M. is unlikely to prevail on the merits of her claims challenging ORR’s
most recent age determination, which found that C.T.M. was not a minor, the Court cannot logically
conclude that C.T.M. faces a substantial threat of being deprived of a less restrictive setting. Cf.
Order at 12-13, LJ. v. Keeton, No. CV-19-01904-SMB (D. Ariz. Apr. 17, 2019), ECF No. 15 (finding
a likelihood of irreparable harm based on the petitioner’s inability to be placed in the least restrictive
setting after concluding that ORR’s age determination, which found that the petitioner was an adult,
contravened the TVPRA).
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES C.T.M.’s motion for a TRO (Doc. 8).
SO ORDERED.
SIGNED: March 16, 2020.
UPDATED STATES DISTRICT JUDGE
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