state-court order requiring agency, as custodian of minor, to "facilitate access" to the minor is a civil action
How later courts described this case
- state-court order requiring agency, as custodian of minor, to "facilitate access" to the minor is a civil action
Written by the judges who cited it.
The opinion
Case: 18-40146 Document: 00514368570 Page: 1 Date Filed: 03/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-40146 United States Court of Appeals
Fifth Circuit
FILED
March 1, 2018
JANE DOE,
Lyle W. Cayce
Petitioner - Appellee Clerk
v.
OFFICE OF REFUGEE RESETTLEMENT,
Respondent - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:
This case asks whether the Office of Refugee Resettlement (“ORR”) is
discharging its federal obligation to the benefit of an unaccompanied alien
minor in refusing her access to Texas’s judicial bypass regime for the purpose
of an abortion—the sole basis of which hinges on Jane Doe’s wishes.
I.
Based on the limited record before us, this case’s path to our court
appears as follows.
In late January 2018, Jane Doe, a pregnant minor, expressed an interest
in obtaining an abortion to a “person interviewing her about her needs.” That
person referred Jane Doe to a nonprofit organization that assists minors in
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Texas who are facing unplanned pregnancies and need help with legal issues,
including access to judicial bypass. That nonprofit referred the matter to Myles
Garza and Rochelle Garza of Garza & Garza Law, PLLC. The Garzas met with
Jane Doe, who expressed her wish to obtain an abortion. In accordance with
that wish, the Garzas filed papers with the state court to initiate judicial
bypass proceedings, and the state court set a hearing for February 8.
ORR did not produce Jane Doe for the hearing. Thereafter, emails show
that ORR advised the Garzas that Jane Doe no longer wanted to proceed with
an abortion. Additionally, ORR provided the Garzas with hand-written notes,
penned by Jane Doe, indicating that she “changed [her] decision to have an
abortion” and that she no longer needed the Garzas’ help because she did “not
want to have an abortion.” Emails also show the Garzas attempted to meet
with Jane Doe, and ORR denied them access.
On February 8, the state court issued an order confirming Ms. Garza’s
appointment as Jane Doe’s guardian ad litem and Mr. Garza’s appointment as
her attorney ad litem. The state court order provides that “any custodian of the
child shall grant Attorney Ad Litem and Guardian Ad Litem immediate access
to the child and to any information relating the child and shall fully cooperate
with Attorney Ad Litem and Guardian Ad Litem.” The state court order also
requires “the custodian of any relevant records relating to the child, including
records regarding social services, law enforcement records, school records,
records of a probate or court proceeding, and records of a trust or account for
which the child is a beneficiary, . . . [to] provide immediate access to the records
to Attorney Ad Litem and Guardian Ad Litem without requiring a further
order of release.”
ORR filed its notice of removal under 28 U.S.C. § 1442, which authorizes
the removal of any civil action commenced in state court “that is against or
2
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directed to . . . [t]he United States or any agency thereof.” 1 The district court
denied removal. 2 ORR now petitions this Court for an emergency stay of the
district court’s order. Due to the time-sensitive nature of this inquiry, we elect
to consolidate ORR’s request for a stay with a determination of the merits of
the removal question. For the reasons set forth below, we VACATE the district
court’s order and REMAND the action to the district court.
II.
We gleaned the facts of this case from the limited papers presented to
us. We pause to address a narrative that the special concurrence and dissent
threads, one in which knavish, “agenda-driven” lawyers circumvent an
irreproachable agency to prey upon an unaccompanied pregnant minor. The
crucial fact—whether Jane Doe wishes to pursue an abortion—cannot be
answered by needless judicial spin.
The special concurrence and dissent writes that “[s]everal weeks after
entering ORR custody in an approved shelter, Doe came into contact with
attorneys who had learned about her pregnancy,” a characterization—likening
Jane Doe’s referral to the Garzas as some street encounter or worse, painting
a picture of the Garzas wading through a sea of pregnant unaccompanied alien
minors with a net—that ignores the statements of Jane Doe’s lawyers, who
serve as officers of the court subject to its rules of candor, regarding a
nonprofit’s referral of Jane Doe to the Garzas. 3
ORR’s Deputy Director for Children’s Programs explains how ORR
learned about the Garzas’ representation of Jane Doe and initiation of a
judicial bypass proceeding on her behalf. ORR’s Deputy Director states: (1)
1 28 U.S.C. § 1442(a)(1).
2 Jane Doe v. ORR, No. 18–26 (S.D.T.X. Feb. 14, 2018).
3 Jane Doe’s lawyers submitted their brief in accordance with Fifth Circuit Local Rule 27.3,
which requires parties filing emergency motions to “[c]ertify that the facts supporting emergency
consideration of the motion are true and complete.” 5TH CIR. L.R. 27.3.
3
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“Through February 5, 2018, Ms. Doe did not request an abortion from [the
shelter] or ORR;” (2) “On February 6, 2018, Attorneys Rochelle Garza and
Myles Garza arrived at [the shelter], requested a meeting with Ms. Doe, and
conducted that meeting in private. I am not aware of any previous contact
between Ms. Doe and Attorneys Garza;” and (3) “On February 7, 2018, Ms.
Garza contacted [the shelter] saying a state court hearing had been scheduled
for Ms. Doe on the morning of February 8, 2018, and asking [the shelter] to
transport Ms. Doe to that hearing.”
The record presents conflicting narratives that need no resolution here. 4
What we know, and all that is relevant for the limited question of removal, is
that Jane Doe once wanted an abortion and now does not. As best we can tell
from the scant record before the court, the Garzas proceeded in due course to
represent a client who they believed sought a judicial bypass to pursue an
abortion. We will not join in the special concurrence and dissent’s castigation
of the Garzas as “solicit[ing] unaccompanied, non-English-speaking children
behind the back of [a] legal custodian,” as it is unwarranted and does not
answer the stark question before us.
III.
The issue giving rise to removal here is not a clash of power—the power
of the state court order to require production of Jane Doe and the power of ORR
to refuse to do so. 5 Rather, the narrow issue is whether ORR possesses a valid
federal defense to the state court order by “ensuring that the interests of the
child are considered in decisions and actions relating to the care and custody
4 The original engagement between Jane Doe and the Garzas is somewhat unclear. We are
confident that the history of the relationship can be clarified in the district court proceeding if it
becomes relevant.
5 The special concurrence and dissent accuses the per curiam of disingenuously failing to frame
the issue as a clash of power. We disagree. The parties dispute a single fact—whether or not Jane Doe
wants an abortion. If the minor wants an abortion, then both state and federal law require that she
have access to it. They do not point in different directions.
4
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of an unaccompanied alien child,” 6 or, on the other hand, whether it is, in fact,
blocking what no party disputes is Jane Doe’s ability to exercise her
constitutional right to pursue an abortion. 7 As the parties agree, the answer
hinges on Jane Doe’s wishes, the state court order notwithstanding. Thus, the
question is ultimately whether facilitating access to the state bypass
proceeding is “inconsistent with the minor’s stated wishes,” as the government
urges. If it is not, then the federal government possesses an independent
obligation to produce her for the bypass proceedings that springs from its
statutory and constitutional duties, a matter the government does not address.
For this limited reason, removal is proper in this case. 8 It does not depend on
6 6 U.S.C. § 279(b)(1)(B).
7 See Bellotti v. Baird, 443 U.S. 622, 643–44 (1979) (“A pregnant minor is entitled in such a
proceeding to show either: (1) that she is mature enough and well enough informed to make her
abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that
even if she is not able to make this decision independently, the desired abortion would be in her best
interests.” (footnote omitted)).
8 The special concurrence and dissent asserts that we “arbitrarily cabin[] the scope of ORR’s
legal responsibility and implicitly encourage[] third parties with an avowed advocacy agenda to usurp
decisions that federal law commits to ORR as legal custodian.” We do not. Section 1442(a)(1) provides
that a “civil action . . . that is against or directed to . . . [the United States or any agency thereof] . . .
may be removed.” 28 U.S.C. § 1442(a)(1). Section 1442(d)(1) defines the term ‘civil action’ to include
“any proceeding (whether or not ancillary to another proceeding) to the extent that in such a
proceeding a judicial order, including a subpoena for testimony or documents, is sought or issued. If
removal is sought for a proceeding described in the previous sentence, and there is no basis for removal,
only that proceeding may be removed to the district court.” 28 U.S.C. § 1442(d)(1) (emphasis added).
Here, the government asserts three bases for removal: (1) the state court order “requires the
United States to bring a minor who is currently in its custody and care to state court;” (2) the state
court order “requires the United States to facilitate access to the minor by the state court appointed
guardian and attorney ad litem, inconsistent with the minor’s stated wishes;” and (3) the state court
“requires the United States to provide a third party with access to federal records, without going
through the proper avenue to obtain those documents.” Our “minimalist” order is therefore cabined by
the government’s own reasons for removal. As discussed, we see only a plausible theory of removal for
the portion of the state court order that requires the government to “facilitate access” to the minor by
the guardian and attorney ad litem “against the minor’s wishes.”
To the extent that the special concurrence and dissent reads “proceeding” to mean the entire
bypass proceeding, the plain language of Section 1442, principles of federalism, and the well-worn
notion that federal courts should avoid family law issues—to name a few—counsel against such an
approach that is unfounded in removal jurisprudence. Cf. Brown & Williamson Tobacco Corp. v.
Williams, 62 F.3d 408, 412–15 (D.C. Cir. 1995) (removing only the enforceability of the subpoena to
federal court, not the whole case).
5
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the independent validity of the state order directed to the federal government,
which is a matter we need not assess. 9
It is undisputed that Jane Doe at one point requested assistance to
access the state courts, and state-appointed counsel proceeded on this basis. 10
But ORR asserts, and substantiates with Jane Doe’s own words in the form of
two handwritten notes, that Jane Doe has since changed her mind and no
longer wishes to proceed with an abortion. The government states the issue in
terms of whether Jane Doe presently wants to pursue an abortion, and urges
this question ought to be resolved by a neutral party. There is no contention
that ORR’s statutory obligation to protect the interest of the minor includes
the right on its part to independently decide whether an abortion is in her
interest. 11
Thus, the simple path to resolution of this dispute is, as the government
suggests, to vacate the district court’s order and to remand to the district court
so that it may conduct a hearing to resolve the question of whether Jane Doe
presently wishes to pursue an abortion. On remand, the district court will
appoint a guardian ad litem. The able district court may take guidance from
9 The government concedes that it is required to have a colorable defense for removal under 28
U.S.C. § 1442(a)(1). To the extent that the state court order compels ORR to violate its custodial duties,
ORR has one. See State v. Kleinert, 855 F.3d 305, 313 (5th Cir. 2017) (“‘colorable’ here means plausible,
not ‘clearly sustainable’” (quoting Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999)).
10 The special concurrence and dissent contends that the government does not concede that
“Doe at one point requested assistance to ‘access the state courts,’” noting that “the record only shows
that she signed a Dept. of Homeland Security Form G-28 authorizing counsel to represent her in
immigration proceedings.” It is unclear how the government does not effectively concede this point.
The linchpin of this litigation is that Jane Doe “changed [her] decision to have an abortion.” This
turnabout presupposes that Jane Doe held a prior position of wishing to pursue an abortion, which
would require her to seek access to the state courts. The government has not challenged that a
nonprofit referred Jane Doe to the Garzas. The idea that the Garzas “poached” Jane Doe is of the
special concurrence and dissent’s own making.
11 See 6 U.S.C. § 279(b)(1)(B).
6
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the processes adhered to in the Hague Convention cases, in which the district
court meets with the child ex parte, and with a court reporter present. 12
The government is directed to present Jane Doe to proceedings before
the district court. If the government elects not to do so, the Garzas, as Jane
Doe’s current guardian and attorney ad litem, may do so. If the court finds that
Jane Doe does not wish to abort her pregnancy, the matter is concluded, and
the district court should dismiss the case. If the court finds that Jane Doe
wishes to proceed, the district court will instruct the government to cooperate
either with the Garzas, or another guardian and attorney ad litem the district
court may choose to appoint.
IV.
Finally, and notwithstanding the strong principle of constitutional
avoidance that directs us to eschew far-reaching constitutional questions, the
special concurrence and dissent baits ORR to confront the antecedent
questions of whether there is a constitutional right for unaccompanied alien
minors to an abortion and whether there is a constitutional right to a judicial
bypass at all when the government is a custodian. To be certain, the use of an
order granting an emergency motion to stay and consolidating the merits of a
removal question as some envoy to recommend “military” strategy in ORR’s
supposed “battle” in the “war” on abortion is beyond the pale.
We will not say much, as the constitutional questions, posed sua sponte
by the special concurrence and dissent, were neither briefed nor argued. It
bears to mention, however, that our colleague fails to address the opinion that
garnered the majority of the D.C. Circuit sitting en banc. Particularly
noteworthy are its observations that the Supreme Court has “long recognized
12Cf., e.g., Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1126 (D. Colo. 2008) (“[A]ll three of
the minor children expressed their opinions regarding a return to Mexico during an ex parte meeting
with me in chambers.”).
7
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that immigrants who lack lawful status are protected persons under the Due
Process clause” and the lack of authority that says the “government has a right
to flatly prohibit an abortion—to override the woman’s choice—by virtue of
keeping her in custody.” 13
There are no battles or wars here, only straight-forward fact issues. The
resolution of this case, as framed by counsel, does not present constitutional
questions.
V.
We VACATE the remand order of the district court and REMAND the
case to the district court for resolution of the disputed factual issues. The
mandate will issue immediately.
13 Garza v. Hargan, No. 17-5236, slip. op. at *4, 9 (D.C. Cir. Oct. 20, 2017) (Millet, J.,
dissenting); see also Garza v. Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017) (en banc) (adopting the
dissenting statement of Judge Millett).
8
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EDITH H. JONES, Circuit Judge, specially concurring in part and dissenting
in part:
Before this court is a motion to stay the district court’s remand of a case
removed from state court pursuant to 28 U.S.C. § 1442 by the Office of Refugee
Resettlement (“ORR”). ORR is the branch of the federal Department of Health
and Human Services that has custodial responsibility for Doe, an
unaccompanied, undocumented pregnant 14-year-old alien apprehended at the
Texas border. We also have a notice of appeal from the remand order.
Procedurally, I agree to grant the stay, sua sponte consolidate the stay
motion with the merits, reverse the remand order, and instruct the federal
district court to ascertain Doe’s wishes about abortion and if necessary appoint
a neutral guardian ad litem. I dissent from the opinion’s statement that if the
district court finds that Doe wishes to pursue the abortion, the district court
may allow the Garzas to continue their representation. (Of course, the opinion
also permits the district court not to approve the Garzas’ representation, a
condition I would make mandatory.)
I concur separately because the per curiam opinion’s minimalist
reasoning rests on critical assumptions that are not in dispute between the
parties here but must be exposed in order to prevent the continued
sidestepping of ORR’s custodial role by advocacy groups seeking to extend
abortion rights. Doe is a pawn in a fight for control over the federal
government’s relationship with unaccompanied alien children who are in
custody because they haven’t been legally admitted to the United States. In
my view, the district court, aided by a neutral guardian ad litem and if
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necessary, a conflict-free attorney ad litem, should proceed to resolve whether
an abortion is in the best interests of the “barely-14 year old” minor.
It is undisputed that Doe’s pregnancy was apparently discovered during
a medical examination when she arrived at an ORR facility in mid-January. 1
She was found to be 6 weeks pregnant at that time. According to an affidavit
of an ORR official, she stated that the pregnancy did not result from rape,
incest, or sexual assault. Several weeks after entering ORR custody in an
approved shelter, Doe came into contact with attorneys who had learned about
her pregnancy. She signed a paper authorizing their legal representation, but
the record shows that the federal form in question is directed solely to legal
representation in immigration proceedings. 2 Nonetheless, the attorneys
hastened to state court in Brownsville, Texas, Rochelle Garza was appointed
the minor’s guardian ad litem and Myles Garza attorney ad litem “to provide
legal services necessary to assist the Court in protecting the best interests of
Jane Doe.” The state court then ordered Doe produced “by any custodian of
the child” for a judicial bypass hearing. The state court also ordered production
of all relevant records, which were created and maintained by ORR as
custodian. And the state court ordered “any custodian” to grant these lawyers
immediate access to Doe. ORR declined to comply. ORR stated that two days
after Doe had signed some kind of paper concerning these attorneys, she
handwrote twice that she had decided not to seek an abortion and did not want
1 The per curiam opinion recites the “facts” stated in the Garzas’ response to motion to stay in
this court. These “facts” are nowhere in the record before us, and are described only “to the best
information and belief” of the lawyers—which is odd, since they were personally involved in one
conversation with Doe and in presenting their ex parte case to the state court. The “facts” are stated
neither in their capacity as “officers of the court” nor as a declaration under penalty of perjury. ORR,
in contrast, supported its motion for stay with an official’s properly executed affidavit.
2 The per curiam opinion states that it is “undisputed” that Doe at one point requested
assistance to “access the state courts,” but the government does not concede this point, and as noted,
the record only shows that she signed a Dept. of Homeland Security Form G-28 authorizing counsel to
represent her in immigration proceedings.
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these attorneys’ help, and she had confirmed her decision with a clinician.
ORR sought removal of the bypass proceeding to federal district court pursuant
to 28 U.S.C. § 1442 and sought appointment of a neutral guardian ad litem for
Doe. The federal district court, however, misread the statutory provisions and
remanded.
I. Impropriety of remand
No one disputes that we have jurisdiction over the government’s appeal
from the erroneously footed district court decision. 28 U.S.C § 1447(d).
Both the motion to stay and the merits turn on the interpretation of 28
U.S.C. § 1442, whose plain language dispels any doubts about the propriety of
removal. Section 1442(a)(1) authorizes removal of any civil action commenced
in state court and “directed to” any federal officer or agent or federal agency,
while Section 1442(d)(1) broadly defines a “civil action” to encompass any
ancillary proceeding, including a subpoena for testimony or documents. Here,
the state court ordered that Doe be produced in court (for testimony) and that
her lawyers be given immediate access to her, acts that could only be
accomplished through “any custodian,” which is ORR, as well as “any
information relating to” Doe, which is in the custody of ORR. The court’s order
therefore had to be “directed to” the custodian, because Doe, the minor ward,
could not be so ordered.
The district court characterized the impact of these orders as
“tangential” to ORR, but they are not; ORR’s fulfilling its responsibility as a
legal custodian and its cooperation are the sine qua non of compliance. The
district court also asserted that ORR’s attempt to remove is “premature,”
because ORR will not actually have an order “directed at” it or its officials until
or unless the agency incurs a contempt citation for failure to comply. This, too,
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is wrong, under our case law. See Louisiana v. Sparks, 978 F.2d 226, 232 (5th
Cir. 1992). Further, a 2011 amendment to Section 1442(a) added the language
“directed to” precisely to broaden officials’ access to federal court when their
official duties were challenged in state court. See Removal Clarification Act of
2011, Pub. L. No. 112-51, § 2, 125 Stat. 545 (2011); H.R. Rep. No. 112-17, pt. 1,
at 3-6 (2011). Long before the amendment of 2011, which also authorized
appeals from unfavorable Section 1442 remand orders, the Supreme Court had
stated that “the right of removal is absolute for conduct performed under color
of federal office, and [the Court] has insisted that the policy favoring removal
‘should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).’”
Arizona v. Manypenny, 451 U.S. 232, 242, 101 S. Ct. 1657, 1664 (1981).
Removal was incontrovertibly required here, and the district court erred in
holding otherwise.
Insofar as a colorable federal defense to the state court orders was
required, Manypenny, 451 U.S. at 241-42, 101 S. Ct. at 1664, several arise from
the Supremacy Clause. ORR, the HHS delegate, is Doe’s legal custodian and
expressly charged with making custodial decisions with regard to her. 8 U.S.C.
§ 1232(b)(1); 6 U.S.C. § 279. The federal government enjoys sovereign
immunity from involuntary compliance with state court orders, yet the
essential purpose of the lawyers’ ex parte state court proceeding was to evade
and deny ORR’s status and immunity. Finally, the government’s
confidentiality regulations superseded a state court’s orders to produce the
documents. These defenses are in my view not just colorable but conclusive.
Even the per curiam acknowledges, albeit in a footnote, that a colorable federal
defense exists to the extent the state court order requires ORR to violate its
custodial duties. P.C. Op. at fn. 23. Thus, the district court had jurisdiction to
determine the scope, if any, of the state court’s orders insofar as they
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necessarily compel ORR to act in breach of its custodial duties and, so ORR
urges, against Doe’s wishes. 3
The per curiam’s settling on a “limited remand” to the district court,
with instruction to conduct an ex parte hearing, holds without expressly
stating that federal court removal jurisdiction was proper. If the district court
had no jurisdiction, we would have no basis to ask it to conduct any kind of
hearing.
Following removal, however, the district court’s jurisdiction should not
be limited to determining the minor’s asserted wishes about an abortion. I
agree the court should at least make this determination. Pursuant to Section
1442, however, removal jurisdiction exists so that the district court may
conduct “a trial upon the merits of the state-law question free from local
interests or prejudice.” Manypenny, 451 U.S. at 241-42, 101 S. Ct. at 1664.
The state court orders were “directed to ORR” to produce Doe for an ex parte
hearing, require her to consult with the Garzas, and produce confidential
documents. Ascertaining the minor’s preferences are only a part of the state
court’s directions. Although I compromise for the sake of moving this case
along, the proper application Section 1442, pursuant to Manypenny, would
instruct the federal district court, in this case and under these circumstances,
to hold any bypass hearing, should it become advisable. See id. (ordering
criminal case under state law to be heard in federal court following 1442
removal).
Unfortunately, the per curiam opinion’s reasoning arbitrarily cabins the
scope of ORR’s legal responsibility and implicitly encourages third parties with
3 I disagree with the per curiam’s disingenuous disavowal that the issue here does not pose a
clash of power. Though the government places repeated stress on Doe’s expressed desire not to have
an abortion, its briefing is clearly based on the conflict between federal law, prescribing ORR’s
custodial duties, and the state court orders that denied its role.
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an avowed advocacy agenda 4 to usurp decisions that federal law commits to
ORR as legal custodian. 6 U.S.C. § 279(b)(1)(A)&(B); 8 U.S.C. § 1232. It is
therefore important to explain why this attempt at establishing an ex parte
guardianship beyond the supervision of ORR is illegal.
ORR has legal responsibility for “ensuring that the interests of the child
are considered in decisions and actions relating to the care and custody of an
unaccompanied alien child.” 6 U.S.C. § 279(b)(1)(B); 8 U.S.C.
§ 1232(b)(1)(delegation from HHS). Under ORR’s policies and procedures, the
agency Director must approve requests for serious medical procedures,
including abortions, for any unaccompanied alien child. Where federal law is
explicit, it is supreme in its sphere. The authority of the federal government
in matters pertaining to illegal aliens is nearly exclusive. Arizona v. United
States, 567 U.S. 387, 394, 132 S. Ct. 2492, 2498 (2012) (“The Government of
the United States has broad, undoubted power over the subject of
immigration . . . .”). State law may not interfere with explicit federal
regulations concerning illegal aliens. Id.; Villas at Parkside Partners v. City of
Farmers Branch, 726 F.3d 524, 528-29 (5th Cir. 2013) (en banc). There is
nothing left undecided by statute or regulation about the federal government’s
duty toward unaccompanied alien children. First, by statutory definition,
these are children who have “no parent or legal guardian in the United
States . . . available to provide care and physical custody.”
6 U.S.C. § 279(g)(2)(C)(ii). The reference to “legal guardian” clearly means a
guardian whose existence predated the child’s being apprehended at the
international border; otherwise, such a guardian could be called upon to
4 Rochelle Garza, Jane Doe’s would-be guardian ad litem, is the named plaintiff for a class of
pregnant unaccompanied minors seeking abortion access from the Secretary of Health and Human
Services. See Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc). Jane Doe’s abortion was
expedited, without notice to the federal government, at least in part to thwart Supreme Court review
of the D.C. Circuit decision.
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assume the child’s care and custody. 5 Moreover, ORR has the duty to oversee
the custodial arrangements for the unaccompanied minors and to protect them
from abuse or manipulation. Any proposed custodian or entity must be found
capable of “providing for the child’s physical and mental well-being.”
8 U.S.C. § 1232(c)(3)(A). Before placing a child with an individual, for
instance, ORR must conduct a home study for any “child who has been a victim
of physical or sexual abuse under circumstances that indicate that the child’s
health or welfare has been significantly harmed or threatened . . . . ”
8 U.S.C § 1232(c)(3)(B). Surely there can be no dispute, notwithstanding Doe’s
statements, that impregnating a 13-year old victimizes her physically and
sexually and threatens the child's health or welfare. Given Doe’s very tender
age, ORR, as legal custodian, needs to assure that her mental and physical
health will be protected. After all, the agency will remain responsible for her
irrespective of the pregnancy’s outcome.
The ex parte appointment of the guardian ad litem and legal guardian
in the state court deliberately conflicted with this statutory scheme. ORR had
no prior notice of the lawyers’ intent to go to court, no chance to coordinate
with, much less approve the lawyers’ representation of Doe, and no input into
the state court’s determination of their suitability. ORR had no notice that
Doe had consulted these lawyers. ORR, as its briefing plainly contends, was
prevented from performing its statutory duties.
In addition, the Garzas never sought to pursue Doe’s interests in
conjunction with ORR, but have acted inherently in opposition to the agency’s
comprehensive federal duty toward her. The lawyers contend that federal law
required ORR to accept their legal representation, but this claim is inaccurate.
5 The Garzas obviously have not become guardians in this sense. They have no desire to
assume custody for all purposes. Their expressed intention is solely to get Doe an abortion, otherwise
they would have collaborated with ORR to ascertain Doe’s current wishes and best interests.
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8 U.S.C. § 1232(c)(5) authorizes “access to counsel” for unaccompanied alien
children. What this provision states is that ORR must ensure “to the greatest
extent practicable and consistent with section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362) . . . . counsel to represent them in legal
proceedings or matters and protect them from mistreatment, exploitation, and
trafficking.” 8 U.S.C. §§ 1232(c)(5). The associated regulations focus on
immigration representation for unaccompanied alien children. And the record
here shows only that Doe signed an immigration-representation form with the
Garzas. Even if the purposes for which counsel may be appointed are
unlimited, this provision does not authorize outside counsel to claim to
represent unaccompanied, non-English-speaking children behind the back of
their legal custodian, ORR.
ORR does not dispute that as custodian, it may have to get independent
counsel appointed for unaccompanied alien children, and its regulations offer
lists of approved counsel. ORR, indeed, suggested a highly qualified attorney
to become Doe’s neutral guardian ad litem in this federal court matter. ORR
cogently observes that if the Garzas truly had the best interests of Doe in mind,
they would not oppose the agency’s request that the federal district court
appoint a truly neutral guardian ad litem.
There is simply no precedent in this court for requiring a federally
mandated legal guardian of unaccompanied alien children to subserve state-
appointed lawyers and for this court to ignore the constitutional and statutory
relationships created by the federal government’s control over immigration.
The Supremacy Clause is turned upside down to hold or imply otherwise.
For these reasons, Section 1442 removal was appropriate.
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II. Who is a “neutral” guardian ad litem
The per curiam holds out the possibility that if Doe elects to attempt to
obtain approval for an abortion, then the Garzas may represent her. In light
of the Garzas’ tactics in this case and their advocacy in favor of minors’ abortion
rights in a class action case, I dissent from this portion of the per curiam
opinion. The state court order appointing Rochelle Garza as guardian ad litem
requires a comprehensive medical and mental health review of this 14-year old
for the purpose of ascertaining whether she ought to have an abortion. The
breadth of the guardian’s duties stated in Texas law is in compliance with
applicable Supreme Court decisions, see, e.g., Bellotti v. Baird, 443 U.S. 622,
99 S. Ct. 3035 (1979), and Texas law. Importantly, however, the bypass court
may in the end determine, notwithstanding Doe’s wishes, that an abortion is
not in her best interests. Id. at 643-44, 99 S. Ct. at 3050 (“If, however, the
court is not persuaded by the minor that she is mature or that the abortion
would be in her best interests, it may decline to sanction the operation”). Myles
Garza’s position as attorney ad litem is also questionable; that he has become
a fact witness as to his client’s “wishes” suggests the need for a non-conflicted
attorney ad litem. The Garzas have demonstrated by word and deed that their
goal is to foster abortions. Were it not so, they would not have objected to the
appointment of a truly neutral guardian. The record offers no assurance that
the Garzas can fulfill the neutral role that Supreme Court and Texas law
envision with respect to Doe’s best interests. They should be displaced. I
dissent from the per curiam’s contrary implication.
III. What is Left Unsaid
The premises of this upending, of course, are that Doe has a
“constitutional right” to obtain an abortion secured by a “constitutional right”
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to a judicial bypass proceeding in state court. I respectfully but emphatically
disagree with the insinuation in the per curiam writing about these issues,
which have been neither briefed nor argued here or in the district court. In the
case before us, ORR does not challenge these premises and, as a result,
obscures its position. 6 See also Garza v. Hagan, 874 F.3d 735, 753 (Kavanaugh,
J., dissenting) (noting the government’s similar failure to make these
arguments in the D.C. Circuit). ORR merely urges the appointment of a
neutral guardian ad litem who, it assures us, will demonstrate that Doe does
not “wish” to abort her baby. That is all it need contend for purposes of this
appeal. Hoping this is sufficient, I go along with the per curiam’s limited order
for relief.
By failing to challenge the underlying premises, however, ORR may
temporarily win this battle but lose the war for its statutory responsibility. 7
The war may be lost because, with our limited order, the Garzas and similarly
minded activists will continue to seek out pregnant unaccompanied alien
children and pursue litigation in numerous fora and with complex and varying
procedural scenarios. At some point, the government needs to confront the
antecedent issue raised powerfully in Judge Henderson’s recent dissent: where
is there a “constitutional right” for unaccompanied, inadmissible aliens who
have never formally “entered” this country to obtain abortions in the United
States? See Garza v. Hargan, 874 F.3d 735, 743-52 (D.C. Cir. 2017)
(Henderson, J., dissenting). That the D.C. Circuit in Garza undertook an
6 It is not clear in ORR’s briefing, for instance, whether the agency would acquiesce in the per
curiam’s statement that “the federal government [may possess] an independent obligation to produce
[Doe] for the bypass proceedings that springs from its statutory and constitutional duties.” What
constitutional duties? Bypass proceedings in what court? In regard to the latter question, as I noted
above, I believe the federal district court should be obliged following removal to assume responsibility
for any bypass proceeding.
7 This writer disclaims any pretense to being Joan of Arc. The phrase win the battle, lose the
war means something like a Pyrrhic victory and most well-educated readers know the expression is
used well beyond the military connotation.
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extraordinarily expedited en banc proceeding to reverse a panel decision and
make a very broad pronouncement on these issues is not binding precedent.
The other antecedent question not directly confronted by our opinion
assumes arguendo that such a constitutional right exists. But why does a
“judicial bypass” have any meaning whatsoever for a minor who already has a
legal custodian acting in place of an absent, foreign parent? ORR’s custodial
status parallels in some ways but is hardly commensurate with that of parents.
Yet the Supreme Court’s decisions expounding a judicial bypass for minors
seeking abortions are based on the concern that “there are parents who would
obstruct, and perhaps altogether prevent, the minor’s right to go to court . . .”
Bellotti v. Baird, 443 U.S. 622, 647, 99 S. Ct. 3035, 3050 (1979). (internal
quotation omitted). All of those cases are permeated by the unique influence
inherent in the parent-child relationship. Whatever the Garzas may think of
ORR, it is bound to act in the best interests of the unaccompanied alien child
in conformance with governing federal law. There is no basis in the Supreme
Court’s abortion cases for inferring that a pregnant unaccompanied alien child
has a “right” to succumb to lawyers’ solicitations and appear ex parte in state
court without consultation or even knowledge of her extant, non-parental legal
custodian. There is no evidence in this record that ORR has exhibited any
intent or taken any action to thwart federal law. That ORR could and will
cooperate to ascertain the best interests of pregnant unaccompanied alien
minors, even through a judicial bypass proceeding, has been demonstrated.
See Garza v. Hargan, No. 17-cv-02122-TSC (D.D.C.), Plaintiffs’ Second
Amended Complaint for Injunctive Relief, at 4 (“After Plaintiffs’ counsel
contacted, [ORR’s] counsel, J.D. was allowed to pursue a judicial bypass in lieu
of securing parental consent . . .”). Based on ORR’s conscientious efforts as
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Doe’s legal custodian, the assumptions underlying any requirement of state
court judicial bypass proceedings are unsupported.
With these comments, I concur in the relief ordered, such as it is, but
dissent from its limited scope and from the possibility that the Garzas may be
authorized to represent Doe.
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