Garcia Ramirez v. U.S. Immigration and Custom Enforcement

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WILMER GARCIA RAMIREZ, et al., :

:

Plaintiffs, : Civil Action No.: 18-508 (RC)

:

v. :

:

U.S. IMMIGRATION AND CUSTOMS :

ENFORCEMENT, et al., :

:

Defendants. :

FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING LIABILITY

This case concerns alleged violations of the Administrative Procedure Act (“APA”) by

the U.S. Immigration and Customs Enforcement (“ICE” or “the Agency”) in connection with

ICE’s processing of eighteen-year-olds who came to the United States as unaccompanied alien

children (“UACs”). Plaintiffs—immigrant teenagers who entered the United States as UACs—

bring this class action against ICE, the Acting Director of ICE, the Department of Homeland

Security (“DHS”), and the Secretary of Homeland Security (collectively “Defendants” or “the

Government”). When minors lacking immigration status arrive in the United States without

parents or other guardians, they are placed in the custody of the Department of Health and

Human Services, Office of Refugee Resettlement (“HHS” and “ORR”). If they are still in

custody on their eighteenth birthday, the now-adult immigrants “age out” of HHS and ORR

custody and are transferred to ICE custody. Immigrants who undergo this transfer from HHS to

ORR are referred to by the parties as “age-outs” and a subset of these age-outs make up the

plaintiff class in this case. A provision of a 2013 statute amending the Trafficking Victims

Protection Reauthorization Act (“TVPRA”) 1 codified at 8 U.S.C. § 1232(c)(2)(B), requires that

when ICE receives custody of an age-out it must “consider placement in the least restrictive

setting available after taking into account the alien’s danger to self, danger to the community,

and risk of flight.” 8 U.S.C. § 1232(c)(2)(B). In short, the plaintiffs argue that a significant

number of ICE field offices and officers automatically place many age-outs in adult detention

settings without giving less-restrictive settings the consideration required.

In their Amended Complaint, plaintiffs allege that ICE’s failure to consider the least

restrictive placement violates the APA. In Count One, the Plaintiffs argue that it is arbitrary,

capricious, or an abuse of discretion for ICE not to consider placement in the least restrictive

setting. In Count Two, they argue that ICE is unlawfully withholding consideration of placement

in the least restrictive setting and they ask the Court to compel the Agency to undertake such

consideration. The Counts, though legally distinct, challenge the same conduct and both are

focused on what ICE is actually doing with each age-out it encounters. Neither is about what

official policy ICE might have written down. In both Counts, the Plaintiffs are alleging that ICE

is not fulfilling its obligation to actually consider placement in the least restrictive setting for

each age-out that comes into its custody.

The Court conducted a bench trial over the Course of eighteen days between December 2,

2019 and January 15, 2020. Following the trial, the parties submitted proposed findings of fact

and conclusions of law, as well as subsequent briefs in opposition. The Court now makes its

1

These amendments to the TVPRA were made as part of a broader set of amendments to

the Violence Against Women Act (“VAWA”). See Violence Against Women Reauthorization

Act of 2013, Pub. L. No. 113-4, § 1261, 127 Stat. 54, 56 (codified at 8 U.S.C. § 1232(c)(2)(B)).

As a result, the statute governing ICE’s handling of age-outs is sometimes referred to as the

TVPRA and sometimes referred to as VAWA.

2

Findings of Fact and Conclusions of law, as required by Rule 52(a)(1) of the Federal Rules of

Civil Procedure.

For the reasons discussed in detail below, the Court will enter judgment in favor of

Plaintiffs. The statute requires that ICE field officers take into account the statutory risk factors

of danger to self, danger to community, and risk of flight, and that they consider placing age-outs

in the least restrictive setting available. To consider placing an age-out in the least restrictive

setting available, ICE officers must be able to identify what available setting would be least

restrictive. This requires making an inquiry into available placements for age-outs that ICE

officers throughout the country frequently do not undertake. ICE headquarters does not train

officers on proper decisionmaking, and in fact gives guidance that is contrary to the statute in

several ways. ICE does not require any number of practices that could facilitate compliance with

the statute, but leaves it up to field officers’ discretion whether, for example, to review age-outs’

files in detail, to contact group homes and shelters, or to respond to communications from age-

outs’ attorneys suggesting settings for them that are less restrictive than adult detention. Many

officers choose not to take these steps, with the result that in many of ICE’s largest field offices,

age-outs are detained nearly automatically. In the most extreme cases, this means that ICE field

officers refuse to release age-outs to organizational sponsors who have said they would be happy

to take them in, see infra ¶ 187, or to eighteen-year-olds’ own parents living in the United States,

infra ¶ 200, when nothing in the age-outs’ records indicated they posed a flight risk or a danger

to themselves or to the public. These are not the decisionmaking processes that Congress

required. By failing to make decisions in the way Congress dictated, and based on the factors

Congress identified as relevant, ICE fails to fulfill its obligations under the statute and therefore

violates the APA.

3

I. BACKGROUND

For clarity in following the Court’s specific findings of fact and conclusions of law, the

Court first provides a brief overview of the facts underlying this case and a summary of the

case’s procedural history and current posture.

A. Factual Overview

Most immigration enforcement functions in the United States are carried out by the DHS,

in which ICE is housed. See 6 U.S.C. §§ 111, 251, 291. Congress established a different legal

framework, however, for the care and custody of “unaccompanied alien children”— defined as

children under age eighteen, who have no lawful immigration status in the United States and no

parent or legal guardian in the United States available to provide care and physical custody. 6

U.S.C. § 279(g)(2). Except in certain exceptional circumstances, unaccompanied minors

apprehended by immigration officials are transferred to the custody of HHS. 8 U.S.C.

§ 1232(b)(3). ORR, an office within a division of HHS, is thereafter responsible for, among

other things, “coordinating and implementing the care and placement” of such children. 6

U.S.C. § 279(a)–(b)(1)(A). Congress has established that these children “shall be promptly

placed in the least restrictive setting that is in the best interest of the child” and that “[i]n making

such placements, the Secretary [of HHS] may consider danger to self, danger to the community,

and risk of flight.” 8 U.S.C. § 1232(c)(2)(A).

HHS only has authority over the care and custody of immigrant children, however. See 6

U.S.C. § 279. And, of course, children do not stay children forever. Congress accounted for that

fact of life, extending certain protections to newly adult immigrants who were formerly in the

care and custody of HHS. Pursuant to 8 U.S.C. § 1232(c)(2)(B):

If [an unaccompanied alien child in the custody of the Secretary of HHS] reaches

18 years of age and is transferred to the custody of the Secretary of Homeland

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Security, the Secretary [of DHS] shall consider placement in the lease restrictive

setting available after taking into account the alien’s danger to self, danger to the

community, and risk of flight. Such aliens shall be eligible to participate in

alternative to detention programs, utilizing a continuum of alternatives based on the

alien’s need for supervision, which may include placement of the alien with an

individual or an organizational sponsor, or in a supervised group home.

Under this provision, DHS—that is to say, ICE—must “tak[e] into account” specified statutory

factors and must “consider” placement in the least restrictive setting available for those who aged

out of HHS’s jurisdiction. See id. But, unlike unaccompanied minors, these young adults are not

promised placement in the least restrictive setting. Compare 8 U.S.C. § 1232(c)(2)(A) (“shall

promptly be placed”), with id. § 1232(c)(2)(B) (“shall consider placement”).

B. Procedural History

Plaintiffs filed this lawsuit on March 5, 2018. Compl., ECF No. 1. The plaintiffs were

three immigrant teenagers who had previously been held in ORR custody as unaccompanied

alien children. See Mem. Op. Denying Defs.’ Mot. Dismiss and Granting Pls.’ Mot. for Class

Cert. (“MTD and Class Cert. Op.”), ECF No. 50 (citing First Am. Compl. (“Am. Compl.”) ¶¶ 1,

33, 46, 61, ECF No. 21). Each turned eighteen, was transferred to ICE custody, and was placed

in an adult detention facility, purportedly without receiving the statutorily mandated

consideration of less restrictive placement options. Id. (citing Am. Compl. ¶¶ 1, 4, 13–15).

Plaintiffs assert two causes of action, both under the APA. First, pursuant to 5 U.S.C.

§ 706(2), Plaintiffs argue that Defendants have acted in a manner that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,” by failing to consider placements

for each Plaintiff in the “least restrictive setting available after taking into account [their] danger

to self, danger to community, and risk of flight” and by failing to make available to Plaintiffs any

alternatives to detention. Am. Compl. ¶¶ 98–106. Second, Plaintiffs contend that Defendants

5

have ‘‘failed to take a discrete agency action that [the agency] is required to take,’’ in violation

of Section 706(1) of the APA. Id. ¶¶ 107–11; 5 U.S.C. § 706(1).

Plaintiffs moved for class certification, ECF No. 6, and shortly thereafter filed an

Amended Complaint, ECF No. 21. The Amended Complaint, which remains the operative

complaint today, alleges that ICE’s handling of age-outs violates the APA in two ways. Count

One alleges a violation of Section 706(2), which says that a reviewing court shall “hold unlawful

and set aside agency action, findings, and conclusions found to be” among other things

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in

excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C.

§ 706(2). Count Two is similar. It alleges a violation of Section 706(1) which says that a

reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed.” Id.

§ 706(1). The two counts focus on the same conduct. Count One alleges that ICE’s lack of

compliance with Section 1232(c)(2)(B) makes its detention of age-outs arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law, while Count Two alleges that ICE’s

failure to take required action under Section 1232(c)(2)(B) amounts to the unlawful withholding

of required agency actions. See Am. Compl. ¶¶ 98–111.

Defendants moved to dismiss arguing that the plaintiffs lacked standing to bring their

claims, that their claims were moot, that ICE’s relevant actions were not reviewable under the

APA, and that Plaintiffs failed to state claims upon which relief could be granted. MTD and

Class Cert. Op. at 18. The Court disagreed and denied the motion to dismiss. Id. Among the

Court’s conclusions in that opinion was that “Section 1232(c)(2)(B) does not limit

‘consider[ation]’ or ‘eligib[ility] to participate in alternative to detention programs’ to those who

DHS has determined pose no risk of flight.” Id. at 40. Instead, DHS and ICE must account for

6

an age-out’s flight risk, danger to self, and danger to community and then “consider placement in

the least restrictive setting available” no matter what the level of flight risk or danger has been

assessed to be. Id. “[T]he statute calls for an individualized assessment of the proper placement

for each former unaccompanied minor in light of DHS’s assessment of his or her danger to self,

danger to the community, and risk of flight. It includes no provision permitting DHS to short-

circuit this inquiry . . . .” Id.

In the same opinion that denied Defendants’ motion to dismiss, the Court granted

Plaintiffs’ motion for class certification, allowing Plaintiffs to proceed on behalf of a class

defined as:

All former unaccompanied alien children who are detained or will be detained by

ICE after being transferred by ORR because they have turned 18 years of age and

as to whom ICE did not consider placement in the least restrictive setting available,

including alternatives to detention programs, as required by 8 U.S.C.

§ 1232(c)(2)(B).

MTD and Class Cert Op. at 56–57. The case then proceeded to discovery.

After the close of discovery, the Government moved for partial summary judgment. Mot.

Partial Summ. J. (“MSJ”), ECF No. 209. The Court denied partial summary judgment because

the same dispute of fact that the Government conceded precluded summary judgment on Count

Two was equally central to the Plaintiffs’ case on Count One. Order Denying Mot. for Partial

Summ. J. (“MSJ Order”), 2019 WL 7370368 at *1–2, ECF No. 240. Specifically, as the

Government recognized, there was a genuine dispute concerning “whether ICE Officers in the

field are indeed considering the least restrictive setting available.” Id. at *1, ECF No. 240 (citing

MSJ at 8 n.3). This issue would have to be resolved at trial.

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C. Bench Trial

The Court conducted a bench trial over the Course of eighteen days between December 2,

2019 and January 15, 2020. Transcript of Bench Trial (“Trial Tr.”), ECF Nos. 280–313. 2

Plaintiffs presented testimony from twenty-three witnesses at trial, calling some to the

stand for live testimony and reading deposition testimony into the record for others. They also

provided the Court with designated deposition testimony from a number of additional witnesses.

Defendants called fourteen witnesses, some of whom had also been presented, in one form or

another, by Plaintiffs. Both parties introduced a substantial volume of exhibits and designated

significant deposition testimony for the Court’s consideration.

Following the close of trial, each party submitted proposed findings of fact and

conclusions of law to the Court. At the Court’s instruction, they have divided their arguments

across two sets of briefs, with liability and remedies addressed separately. Defs.’ Proposed

Findings of Fact and Conclusions of Law Concerning Remedies 3 (“Defs.’ Remedies Br.”), ECF

No. 267; Defs.’ Proposed Findings of Fact & Conclusions of Law [Concerning Liability]

(“Defs.’ Br.”), ECF No 268; Pls.’ Proposed Findings of Fact and Conclusions of Law

Concerning Liability (“Pls.’ Br.”), ECF No. 271; Pls.’ Proposed Findings of Fact and

Conclusions of Law Concerning Remedies (“Pls.’ Remedies Br.”), ECF No. 272; Pls.’ Mem.

Concerning Remedies (“Pls.’ Remedies Mem.”), ECF No. 273. Plaintiffs also filed a series of

demonstrative exhibits that they had referred to during trial. Notice of Filing Demonstrative Exs.

(“Pls.’ Demonstratives”), ECF No. 275. The parties then filed responses to each other’s

2

The Trial Transcript has been consecutively paginated. Accordingly, the Court will

only reference page and line numbers when citing to the transcript, rather than identifying the

particular date of the cited testimony or the Electronic Case Filing Number assigned to that

portion of the testimony.

3

The Court has supplied this title because Defendants did not title this document.

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proposed findings of fact and conclusions of law. Pls.’ Resp. to Defs.’ Br. (“Pls.’ Resp.”), ECF

No. 317; Pls.’ Resp. to Defs.’ Remedies Br. (“Pls.’ Remedies Resp.”), ECF No. 318; Defs.’

Reply to Pls.’ Remedies Mem. (“Defs.’ Remedies Mem. Resp.”), ECF No. 319; Defs.’ Resps. to

Pls.’ Br. (“Defs.’ Resp.”), ECF Nos. 321, 323 4; Defs.’ Resp. To Pls.’ Remedies Br. (“Defs.’

Remedies Resp.”), ECF No. 322.

Both parties redacted certain information in their briefing and each has filed unredacted

versions of these documents under seal. 5 See Pls.’ Proposed Findings of Fact and Conclusions of

Law Concerning Liability (“Pls.’ Sealed Br.”), ECF No. 270-1; Pls.’ Proposed Findings of Fact

and Conclusions of Law Concerning Remedies (“Pls.’ Sealed Remedies Br.”), ECF No. 270-2;

Defs.’ Proposed Findings of Fact & Conclusions of Law [Concerning Liability] (“Defs.’ Sealed

Br.”), ECF No. 276; Pls.’ Resp. to Defs.’ Br. (“Pls.’ Sealed Resp.”), ECF No. 316-1; Defs.’

Resps. to Pls.’ Br. (“Defs.’ Sealed Resp.”), ECF No. 320-1; Defs.’ Resps. To Pls.’ Remedies Br.

(“Defs.’ Sealed Remedies Resp.”), ECF No. 320-2. The Court will cite primarily to the publicly-

filed versions of these documents.

Here, the Court only reaches findings of fact and conclusions of law concerning liability.

The Court will address remedies in the near future.

4

Defendants responded to Plaintiffs’ findings of fact and conclusions of law in two

separate filings. ECF No. 323 contains paragraphs 218 through 257 of Plaintiffs’ responses to

Defendants’ proposed findings of fact concerning liability. Responses to all of Defendants’ other

proposed findings of fact and conclusions of law concerning liability are found in ECF No. 321.

5

The parties each filed motions seeking the Court’s leave to make sealed filings pursuant

to the Protective Order governing this case, ECF No. 63. Pls.’ Mot. to File Pls.’ Proposed

Findings of Fact and Conclusions of Law Concerning Liability and Remedies Under Seal, ECF

No. 270; Pls.’ Mot. To File Resp. to Defs.’ Br. Under Seal, ECF No. 316; Defs.’ Unopposed

Mot. For Leave to File Under Seal, ECF No. 320. All three motions will be granted and the

attached sealed briefings will be deemed filed.

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II. LEGAL STANDARDS

A. Rule 52(a) of the Federal Rules of Civil Procedure

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, in an action tried without

a jury, the Court “must find the facts specifically and state its conclusions of law separately.”

Fed. R. Civ. P. 52(a)(1). The Court’s “[f]indings and conclusions may be incorporated in any

opinion or memorandum of decision the court may file.” Defenders of Wildlife, Inc. v.

Endangered Species Scientific Auth., 659 F.2d 168, 176 (D.C. Cir. 1981); see also Fed. R. Civ.

P. 52(a)(1) (“The findings and conclusions . . . may appear in an opinion or memorandum of

decision filed by the court.”).

The Court’s findings must be “sufficient to indicate the factual basis for the ultimate

conclusion.” Kelley v. Everglades Drainage Dist., 319 U.S. 415, 422 (1943); see also Lyles v.

United States, 759 F.2d 941, 943–44 (D.C. Cir. 1985) (“One of [Rule 52(a)’s] chief purposes is

to aid the appellate court by affording it a clear understanding of the ground or basis of the

decision of the trial court.” (internal quotation omitted)). “But the judge need only make brief,

definite, pertinent findings and conclusions upon the contested matters; there is no necessity for

over-elaboration of detail or particularization of facts.” Fed. R. Civ. P. 52(a) advisory

committee’s note to 1946 amendment; accord Paleteria La Michoacana, Inc. v. Productos

Lacteos Tocumbo S.A. DE C.V., 188 F. Supp. 3d 22, 34 (D.D.C. 2016); Wise v. United States,

145 F. Supp. 3d 53, 57 (D.D.C. 2015); Moore v. Hartman, 102 F. Supp. 3d 35, 65 (D.D.C.

2015).

The Court is neither “require[d]” nor “encourage[d]” “to assert the negative of each

rejected contention as well as the affirmative of those which they find to be correct.” Schilling v.

Schwitzer-Cummins Co., 142 F.2d 82, 84 (D.C. Cir. 1944); Paleteria La Michoacana, 188 F.

10

Supp. 3d at 34. Similarly, “the court need not ‘address every factual contention and

argumentative detail raised by the parties,’ or ‘discuss all evidence presented at trial.’” Moore,

102 F. Supp. 3d at 65 (quoting Mayagüez v. Corporación Para El Desarrollo Del Oeste, 824 F.

Supp. 2d 289, 295 (D.P.R. 2011); Wachovia Bank N.A., Nat’l Ass’n v. Tien, 598 F. App’x 613,

617–18 (11th Cir. 2014)) (internal citation omitted); see also Wise, 145 F. Supp. 3d at 57 (“[T]he

Court need not address all the evidence presented at trial, and must simply make findings

sufficient to allow the appellate court to conduct a meaningful review.”); Fasolino Foods Co. v.

Banca Nazionale del Lavoro, 961 F.2d 1052, 1058 (2d Cir. 1992) (“All that is required by Rule

52(a) is that the trial court provide findings that are adequate to allow a clear understanding of its

ruling.”); 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2579

(3d ed. 2008).

In accordance with these standards, the Court has cited portions of the record, including

trial testimony, trial exhibits, and designated deposition testimony, to support its findings of fact.

The Court has not, however, exhaustively identified every portion of the record upon which it

has relied to make its findings of fact, and the omission of a citation to a particular portion of the

record does not necessarily mean that the Court did not rely on that portion to make its findings

of fact. Rather the Court has considered the record in its entirety, including the Court’s own

determination of witnesses’ credibility, and its citations to portions of the record are primarily

intended to provide helpful references for the basis of its findings.

The Court has not noted every instance in which a finding it adopts was purportedly

disputed by a party but in which that disputing party failed to make a substantive argument

against the finding. The Court has addressed those substantive arguments that present a material

dispute of fact. The Court therefore has not addressed most instances in which a party purported

11

to dispute a proposed finding but only raised legal arguments concerning the legal consequences

or implications of the proposed finding, without actually challenging the validity of the fact.

Legal arguments are addressed in the Court’s conclusions of law section.

Finally, the Court notes that Rule 52 provides that the Court’s “[f]indings of fact, whether

based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing

court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”

Fed. R. Civ. P. 52(a)(6); see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–76

(1985) (discussing the “clearly erroneous” standard).

B. Administrative Procedure Act

Under 5 U.S.C. § 706(2)(A), a reviewing court must set aside agency actions that are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The touchstone of arbitrary-and-capricious review is reasoned decisionmaking.

Harry T. Edwards, Linda A. Elliott & Marin K. Levy, The Requirement of Reasoned

Decisionmaking: Arbitrary and Capricious Review Under the APA, Federal Standards of Review

Ch. XV (Apr. 2013) (“Federal Standards of Review Ch. XV”) (citing Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Thus, a court cannot set aside an

agency action that is “rational, based on consideration of the relevant factors[,] and within the

scope of the authority delegated to the agency by the statute.” State Farm, 463 U.S. at 42–43.

Although this is a deferential standard, it still requires a reviewing court to take a “hard look” at

an agency’s reasoning. See Federal Standards of Review Ch. XV (quoting Nat’l Lime Ass’n v.

EPA, 627 F.2d 416, 451 n.126 (D.C. Cir. 1980)). The agency must provide at least a “‘brief

statement’” of its reasoning that “explains ‘why it chose to do what it did,’” so that “the court

can ‘reasonably discern[ ]’ the agency’s path.” Coe v. McHugh, 968 F. Supp. 2d 237, 240

12

(D.D.C. 2013) (quoting Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001); Pub.

Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)) (alteration in original). The agency’s

decision should be upheld “so long as the agency ‘engaged in reasoned decision making and its

decision is adequately explained and supported by the record.’” Clark County v. FAA, 522 F.3d

437, 441 (D.C. Cir. 2008) (quoting N.Y. Cross Harbor R.R. v. Surface Transp. Bd., 374 F.3d

1177, 1181 (D.C. Cir. 2004)).

The APA also authorizes courts to “compel agency action unlawfully withheld or

unreasonably delayed[.]” 5 U.S.C. § 706(1). “Unlike the provision that instructs courts to ‘set

aside’ unlawful agency action, id. § 706(2), the [Section] 706(1) provision ‘provides relief for a

failure to act[.]’” Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 11, 19–20 (D.D.C.

2017) (citing Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62 (2004)).

However, “a claim under [Section] 706(1) can proceed only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64.

A plaintiff who asks a court to “compel agency action . . . unreasonably delayed” under § 706(1)

must pinpoint an agency’s failure to take an action that is both discrete and mandatory. See

SUWA, 542 U.S. at 61, 64. “[Section] 706(1) empowers a court only to compel an agency ‘to

perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing

how it shall act.’” Id. (quoting Attorney General's Manual on the Administrative Procedure Act

108 (1947) (emphasis added)).

The Court discusses the applicability of both provisions of the APA in more detail in its

conclusions of law.

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C. Burden of Proof

In the typical civil trial, plaintiffs bear the burden of proving their case “by a

preponderance of the evidence.” Escamilla v. Nuyen, 227 F. Supp. 3d 37, 47 (D.D.C. 2017)

(citing Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 885 F. Supp 2d 156, 181 (D.D.C.

2012)); see also, e.g., Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 285 (1966)

(referencing the “burden of proof . . . generally imposed in civil cases and administrative

proceedings” as being “the duty of prevailing by a mere preponderance of the evidence”). The

parties have not discussed the burden of proof in their briefing in any detail, and Defendants do

not appear to dispute that the preponderance of the evidence standard applies here. “[T]he

preponderance of the evidence standard ‘simply requires the trier of fact to believe that the

existence of a fact is more probable than its nonexistence before [the trier of fact] may find in

favor of the party who has the burden.’” Barhoumi v. Obama, 609 F.3d 416, 424 (D.C. Cir.

2010) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.

Cal., 508 U.S. 602, 622 (1993)). “In the simplest of terms, preponderance of the evidence means

more likely than not[.]” La Botz v. Fed. Election Comm’n, 889 F. Supp. 2d 51, 59 (D.D.C.

2012). The standard “demands only 51% certainty.” Nat’l Lime Ass’n, 627 F.2d at 453 n.139.

For this bench trial, the preponderance of the evidence standard dictates that the Plaintiffs

were required to convince the trier of fact—the Court—that it was, at a minimum, slightly more

likely than not that ICE failed to comply with Section 1232(c)(2)(B). Plaintiffs are not required

to disprove compliance, or to present evidence to counter every alternative theory Defendants

may suggest to account for some fault or other in their compliance. See, e.g., infra ¶¶ 290 &

n.37, 298 (discussing unfounded theories presented by Defendants relating to the parties’ expert

statistical analysis). If the trier of fact is sufficiently convinced that it is more likely than not that

14

a violation occurred, the party with the burden of proof is under no obligation to present

evidence—or even argumentation—to counter unpersuasive theories and speculation from the

other side. See Dennis v. Ford Motor Co., 332 F. Supp. 901, 903 (W.D. Pa. 1971) (observing

that a party bearing the burden of proof by a preponderance of the evidence “is not required to

disprove every possibility conceived by [opposing] counsel’s inventive mind”), aff’d, 471 F.2d

733 (3d Cir. 1973); Miles v. Sec’y of Health & Human Servs., 142 Fed. Cl. 136, 146 (2018),

aff’d, 769 F. App’x 925 (Fed. Cir. 2019) (“Respondent is not required to disprove a theory of

causation that the Special Master has already determined to be insufficient.”).

III. FINDINGS OF FACT

A. Plaintiffs

1. Named Plaintiffs 6

a. Sulma Hernandez Alfaro

1. Sulma Hernandez Alfaro was born on January 19, 2000 in Honduras. Trial Tr. at

689:7–9 (Alfaro). Her eighteenth birthday was January 19, 2018. Id. at 697:12–18 (Alfaro).

2. Ms. Alfaro left Honduras for the United States late in 2016, and arrived in the United

States in December, 2016. Id. at 694:7–10; 694:22–695:5 (Alfaro).

3. Ms. Alfaro turned herself in to immigration officials, was identified as an

unaccompanied alien child, and was placed in the custody of ORR, in a shelter in San Benito,

Texas. Id. at 695:6–19, 696:20–697:1 (Alfaro); see also DX-7 at 2–3, 17.

4. At some time before her eighteenth birthday, Ms. Alfaro filed an application for

asylum. Trial Tr. at 706:11–13 (Alfaro).

6

In April 2019, the parties stipulated to the dismissal of a third named Plaintiff, who had

been identified as Ana P. She took no further part in this case. See Stipulation to Dismiss

Plaintiff Ana P. Under Federal Rule of Civil Procedure 41(a)(1)(A), ECF No. 143.

15

5. On or before January 17, 2018, La Posada Providencia (“La Posada”), “a transitional

shelter for people in crisis . . . who are seeking legal refuge in [the United States]” agreed to

shelter Ms. Alfaro when she turned eighteen. Id. at 706:14–19 (Alfaro); DX-7 at 23.

6. On her eighteenth birthday, Ms. Alfaro was taken into ICE custody. She was picked

up by ICE and taken from the ORR shelter where she was being housed to an ICE office for

processing, and was then taken to the Port Isabel ICE Detention Center in Harlingen, Texas.

Trial Tr. at 697:23–698:17 (Alfaro); DX-7 at 2, 17.

7. No immigration officer ever spoke with Ms. Alfaro about release to La Posada or to

any other sponsor, or any other alternative to detention (i.e. release on bond or with an ankle

monitor). Id. at 706:20–707:18 (Alfaro). She did not bring up La Posada with the ICE officers

processing her because she was not asked. Id. at 730:24–31:1 (Alfaro).

8. On February 2, 2018, Ms. Alfaro’s immigration counsel contacted ICE and

unsuccessfully requested that Ms. Alfaro be released to La Posada Providencia. Ltr. from

ProBAR to ICE (Feb. 2, 2018), ECF No. 2-9; see also Mem. Op. Granting Prelim. Injunction

(“P.I. Op.”) at 9, ECF No. 28.

9. On March 21, 2018, an Immigration Judge granted Ms. Alfaro a bond in the amount

of $10,000, but she and her family were unable to pay this amount so she remained in ICE

detention. Trial Tr. at 707:19–708:2 (Alfaro); DX-8.

10. On April 18, 2018, this Court granted Plaintiffs’ Motion for a Preliminary Injunction

and ordered ICE to comply with § 1232(c)(2)(B) in placing Ms. Alfaro. Order, ECF No. 27.

11. On April 24, 2018, Ms. Alfaro was granted Asylum and she was released from ICE

custody. Trial Tr. at 690:1–2, 708:3–4 (Alfaro).

16

b. Wilmer Garcia Ramirez

12. Wilmer Garcia Ramirez was born on September 23, 1999 in Guatemala. Trial Tr. at

739:23–740:13 (Ramirez). His eighteenth birthday was September 23, 2017. Id. at 749:1–3

(Ramirez).

13. Mr. Ramirez left Guatemala for the United States in early 2017, and arrived in the

United States on March 26, 2017. Id. at 743:20–21, 744:9–11 (Ramirez).

14. Mr. Ramirez was apprehended by immigration officials, was identified as an

unaccompanied alien child, was placed in the custody of ORR, and was taken to ORR’s

Southwest Key Glendale shelter, located in Glendale, Arizona. Id. at 744:14–745:2 (Ramirez);

see DX-11.

15. On September 19, 2017, a state court in Arizona granted a petition declaring Mr.

Ramirez a dependent of the state due to his parents’ neglect of him in Guatemala and found that

it was not in Mr. Ramirez’s best interest to be returned to Guatemala. Order Regarding Child’s

Eligibility for Special Immigrant Juvenile Status at 3, ECF No. 2-4. Based on this, he then filed

a petition for Special Immigrant Juvenile Status (“SIJS”), seeking lawful permanent residency in

the United States. Petition, ECF no. 2-3; see also P.I. Op. at 4.

16. On September 22, 2017—the day before Mr. Ramirez’s eighteenth birthday—Mr.

Ramirez’s immigration counsel wrote to ICE explaining that Mr. Ramirez’s removal proceedings

had been administratively closed, and that he had a petition for SIJS pending. His counsel

requested that Mr. Ramirez be released on his own recognizance to stay with a family friend in

Pennsylvania. DX-11 at 1. The request was denied, and ICE explained to Mr. Ramirez’s

counsel that it intended to reopen removal proceedings, though it had not yet done so. Id. at 3–5.

17. On his eighteenth birthday, Mr. Ramirez “had understood that” he would be going to

live with his family friend in Pennsylvania. He was instead picked up from his ORR facility by

17

ICE and taken to an ICE adult detention facility in Eloy, Arizona. Trial Tr. at 749:1–14

(Ramirez).

18. ICE did not explain why it rejected the possibility of his living with the family friend,

nor did it discuss any alternative sponsors or other alternatives to detention with Mr. Ramirez.

Id. at 751: 13–25 (Ramirez).

19. On January 5, 2018, Mr. Ramirez’s counsel again requested that Mr. Ramirez be

released from custody “to the least restrictive setting available.” DX-17 at 1. Albert Carter, ICE

Deputy Field Office Director for the Phoenix Field Office, denied the request, indicating, “I find

the totality of circumstances do not support a favorable exercise of discretionary authority in this

case.” DX-18.

20. On April 18, 2018, this Court granted Plaintiffs’ Motion for a Preliminary Injunction

and ordered ICE to comply with § 1232(c)(2)(B) in placing Mr. Ramirez. Order, ECF No. 27.

21. Shortly after that Order was issued, in April 2018, Mr. Ramirez was released from

ICE detention with instructions to appear periodically for hearings. He went to live with an

uncle in Bessemer, Alabama. Trial Tr. at 740:18–23, 753:8–23 (Ramirez); see also P.I. Op., at

35–36 (indicating Mr. Ramirez was still in custody at the time of the Court’s Order).

2. Class

22. The Court certified a class under Federal Rule of Civil Procedure 23(b)(2) and

defined it as consisting of:

All former unaccompanied alien children who are detained or will be detained by

ICE after being transferred by ORR because they have turned 18 years of age and

as to whom ICE did not consider placement in the least restrictive setting available,

including alternatives to detention programs, as required by 8 U.S.C.

§ 1232(c)(2)(B).

MTD and Class Cert. Op. at 69.

18

3. Harm to Class Members

23. Plaintiffs’ expert Dr. Julie Linton presented unrebutted expert testimony concerning

the forms of harm that eighteen-year-olds may suffer as a result of detention. Dr. Linton is a

pediatrician, a professor and assistant dean for admission as the University of South Carolina

School of Medicine in Greenville, South Carolina, and medical director of PASOs, a program

that “connects Latino or Hispanic families to community-based resources.” Trial Tr. at 2390:10–

19 (Linton). She has published papers on pediatrics and on care for immigrant children

specifically. Id. at 2396:12–24. The Court found her to be well-qualified as an expert, and

Defendants did not object at trial to her qualifications as an expert. Id. at 2404:6–9. She reached

and testified to “three core opinions” in this case. Id. at 2404:23.

24. Dr. Linton’s first expert opinion was that “because youth from ages 15 to 24 are still

undergoing critical brain development in response to their environment and their experiences . . .

the experience of detention for 18-year-old immigrant youth would be particularly detrimental to

this continuing development. Id. at 2404:24–2405:3; see id. at 2405:12–2419:6 (elaborating on

this opinion in more detail and explaining Dr. Linton’s basis for reaching it).

25. Dr. Linton also provided the expert opinion that “detention, particularly in adult

settings, is physically and psychologically harmful to children and youth, and threatens both their

short- and long-term health and well-being.” Id. at 2405:4–7; see id. at 2419:19–2422:7,

2425:15–2426:13 (elaborating on this opinion in more detail and explaining Dr. Linton’s basis

for reaching it).

26. Dr. Linton’s third expert opinion was that “alternatives to detention, including

placement in community settings . . . while awaiting court cases are markedly better for the

19

health and well-being of youth.” Id. at 2405:8–11; see id. at 2426:14–2428:23 (elaborating on

this opinion in more detail and explaining Dr. Linton’s basis for reaching it).

27. This testimony was not rebutted by Defendants. Defendants briefly cross-examined

Dr. Linton, id. at 2429:2–2437:7. During Dr. Linton’s direct testimony, the Court observed that

“there’s case law that says deprivation of liberty is irreparable [harm] in and of itself,” and lead

counsel for Defendants agreed, commenting that “this is not going to be a contested issue” and

that Defendants were “not contesting that as a legal position.” Id. at 2423:6–2424:9.

B. Defendants

1. ICE Structure

28. ICE has 24 field offices nationwide and many more sub-field offices. Trial Tr. at

4311:15–21 (Harper).

29. Mellissa Harper has been the unit chief of ICE’s Juvenile and Family Residential and

Management Unit (“JFRMU”) since the fall of 2017. Id. at 46:6–17 (Harper).

30. JFRMU is an ICE headquarters unit within Enforcement and Removal Operations

(“ERO”) that—among other duties—oversees implementation of § 1232(c)(2)(B). Id. at 46:6–

11, 279:11–12 (Harper); see also DX-4 at 12 (“Introduction to JFRMU”). This involves

providing advice, training, and guidance to ICE field officers regarding age-out custody

determinations, collecting data, responding to inquiries from the field, and dealing with related

issues. Trial Tr. at 46:24–48:2 (Harper).

31. Beyond Chief Harper, other JFRMU personnel who testified in this case were

National Juvenile Coordinators Ana Sanchez-Zimak and Eric Ravenell, and Section Chief Dawn

Helland. Sanchez Dep. Desig. at 9:18–10:1; Ravenell Dep. Desig. at 9:15–20; Trial Tr. at

4004:4–6 (Helland).

20

32. The term “age-out” is used to refer to a UAC who reaches the age of 18 while in ORR

custody and is then transferred to ICE custody. E.g. Trial Tr. at 46:18–23 (Harper).

33. JFRMU’s instructions to ICE field officers come in the form of “broadcasts” or

“guidance,” which are understood by field officers to constitute orders from ICE headquarters.

Id. at 4388:9–4389:2 (Harper). These are sometimes transmitted via e-mail. E.g. DX-6.

34. Field Office Juvenile Coordinators (“FOJCs”) are ICE officers who work in the

Juvenile Units of ICE field offices. See Galvez Dep. Tr. at 7:19–8:6; DX-19 at 2. FOJCs serve

as local points of contact for all juvenile-related issues in ICE field offices and Areas of

Responsibility (“AORs”). This includes requesting ORR placements for UACs, screening

apprehended UACs, processing age-outs, and conducting site visits. DX-23 at 4.

35. FOJCs are responsible for making “recommendations” of custody determinations for

age-outs, and those recommendations are approved by their supervisors, called SDDOs

(Supervisory Deportation and Detention Officers). Trial Tr. at 54:12–54:24 (Harper); see DX-4

at 9 (list of acronyms). JFRMU and Chief Harper do not to make custody determinations in

ordinary cases. Trial Tr. at 54:25–55:9 (Harper). Chief Harper testified that “[g]enerally

speaking,” it is true that “JFRMU defers to the field office with regards to detention decisions.”

Id. at 56:13–15 (Harper).

36. There has been “significant rotation” of field officers into and out of the FOJC

position, with FOJCs in many field offices rotating out of the role every one or two years. Trial

Tr. at 149:19–150:8 (Harper).

37. The following forms of training are available to new FOJCs: annual in-person

training held by JFRMU once a year, monthly calls, access to online resources, and on-the-job

training from an outgoing FOJC. Id. at 150:11–151:2 (Harper); see id. at 489:7–10 (Officer

21

Ravenell agreeing that “the only training that officers receive when they become FOJCs is on the

job training”).

2. Age-Out Placement Alternatives

38. ORR caseworkers sometimes prepare post-18 plans for UACs in ORR custody who

are approaching their eighteenth birthday. Id. at 72:14–73:17 (Harper). There is no set format

for these and they can range from a single sentence to a longer document. Id. 72:23–24 (Harper).

They may include various types of information, including the age-out’s history, including

medical and mental health history. Id. 72:20–23 (Harper). Most importantly for Section

1232(c)(2)(B), post-18 plans sometimes include names and contact information for potential

sponsors, including potential sponsors that ORR has contacted but did not place an age-out with

(if a UAC were placed with a sponsor by ORR, they would not become an age-out). Id. 73:3–5,

73:21–74:2 (Harper).

39. Placement with a sponsor is one of several options ICE FOJCs have for placing an

age-out. Section 1232(c)(2)(B) explicitly references two options for placement. It says that age-

outs “shall be eligible to participate in alternative to detention programs, utilizing a continuum of

alternatives based on the [age-out]’s need for supervision, which may include placement of the

[age-out] with an individual or an organizational sponsor, or in a supervised group home.” 8

U.S.C. § 1232(c)(2)(B).

40. Releasing an age-out to live with a sponsor is one option available to FOJCs

processing age-outs. This entails releasing the age-out to reside at the address provided by a

sponsor where the sponsor will also live and provide support to the age-out, and where the age-

out will be able to receive immigration court notices and similar communications. See, e.g.,

Trial Tr. 434:24–435:7 (Harper); Munguia Dep. Desig. at 193:20–195:11.

22

41. Release to an organizational sponsor or supervised group home is another option

available. See PX-1 at 8 (age-out review worksheet asking “[a]re any individual or

organizational sponsors or supervised group home available to this age-out for placement?”).

Like individual sponsors, organizational sponsors also provide a support for age-outs and help

ensure their appearance at any future immigration proceedings. Id. at 4339:19–25 (Harper)

(reading into the record ERO guidance from DX-108 at 2); see also id. at 844:20–25 (Enriquez)

(testimony from a third-party legal services provider that “an institutional sponsor might be a

homeless shelter or an organization that provides housing services to youth”).

42. Organizational sponsors did not need to be in an office’s AOR, as some shelters

accepted age-outs from across the country. See Trial Tr. at 845:20–847:14 (Enriquez) (testifying

that Catholic Charities has always been able to identify a potential sponsor organization for age-

outs by first reaching out to local shelters and then expanding the search to organizations around

the country); id. at 1317:14–25 (Lehner) (Miami-area legal services provider testifying that she

was able to find placement for age-outs from the Miami AOR with shelters in Chicago and

Texas); see also DX-88 (AORW for a Miami office age-out form whom Officer Reardon

recommended placement in a Texas shelter).

43. Age-outs can be released under an Order of Supervision (“OSUP”) or on their own

recognizance (“OREC”). See, e.g. PX-1 at 8 (age-out review worksheet listing these as among

the “Discretionary Release Action(s)” available). In practical terms these are the same—the age

out is released—but release on an Order of Supervision is appropriate when the age-out is under

an existing order of removal and is being supervised by an immigration court, whereas release on

the age-out’s own recognizance is appropriate when no order of removal has been issued. See

Trial Tr. at 942:7–943:2, 1107:1–22.

23

44. ICE’s Alternatives to Detention (“ATD”) program provides ICE officers with a

number of other means for tracking age-outs who are not placed in detention. Carbonneau Dep.

Des. at 7:5–8:5. 7 These include tracking by ankle bracelet monitor or by smartphone

application, telephonic reporting, or ICE’s Intensive Supervision Appearance Program, a

program through which outside service providers conduct office visits, home visits, residence

visits, orientation enrollment and other forms of tracking. Id. at 10:5–10, 11:4–12:7, 56:10–57:5;

see also Trial Tr. at 146:13–147:1 (Harper). ICE field officers can release age-outs on ATD

anywhere in the country, with the exception of certain rural or sparsely populated areas.

Carbonneau Dep. Desig. at 80:12–21; Trial Tr. at 3697:23–3698:11 (Irizzary).

45. ICE’s ATD Unit Chief Eric Carbonneau confirmed that age-outs are eligible to

participate in the ATD program. Carbonneau Dep. Desig. at 115:13–16; see also id. at 75:20–

76:14, 77:8–10. He also explained that the ATD program is “an effective flight risk mitigation

tool,” and that it “has demonstrated great success in improving compliance rates for those aliens

assigned to the program.” Carbonneau Dep. Des. at 27:11–13; see also PX-21 (memo from

Carbonneau to field officers making the same claims about the ATD program’s effectiveness).

46. ICE officers can also release age-outs on an ICE bond. Similar to a criminal bond,

this entails the age-out “pay[ing] a bond as collateral for their release from ICE custody.” Trial

Tr. at 159:12–20 (Harper). The minimum amount for an ICE bond is $1,500. Trial Tr. at

3143:12–16 (Hyde).

7

When referring to ICE’s ATD program, the Court uses the acronym ATD, or capitalizes

the term (“Alternatives to Detention”). Section 1232(c)(2)(B) uses the term “alternatives to

detention” in lowercase, more generically. When referring to placements other than detention,

the court sometimes uses this phrase without capitalizing or, to avoid confusion, refers to

“detention alternatives.”

24

47. Finally, ICE can also take an age-out into ICE custody. When ICE does this, the

eighteen-year-old age-out is placed in an adult detention facility. Id. at 83:17–84:15. ICE has

adult detention facilities with several different levels of security. Id.at 83:21–23 (“We have low,

low-medium, medium, medium high.”).

3. Documentation of Age-Out Custody Determinations

48. In discovery in this case ICE produced evidence of age-out custody determinations

between April 2016 and May 2019. See, e.g., id. at 18:12–13, 311:13–15 (Plaintiffs’ counsel

representing that this is “the period for which ICE has provided data”). Plaintiffs summarized

these records in PX-334, as well as in other exhibits. See id. at 1657:16–1665:24 (introducing

PX-334 and explaining its contents), 2120:16–2121:25 (describing revisions from PX-334 to PX-

334A); see also id. at 2169:8–2171:2 (counsel discussing admissibility of PX-334A and

explaining the data sources provided by ICE from which Plaintiffs’ counsel constructed

summary charts); id. at 4223:12–4228:12 (testimony concerning ICE’s responses to Freedom of

Information Act Requests, see PX-505, reflecting that the earliest data ICE could compile

concerning age-out custody determinations was from April 2016).

49. For the time period from April 2016 through October 2018, ICE tracked age-out

custody determinations through an informal monthly age-out report in the form of a spreadsheet.

Id. at 284:2–13; Harper 12/6/18 Dep. Desig. at 27:19–21.

50. Monthly age-out reports tracked the name and A-number (alien number) of each age-

out, the field office and/or AOR in which they were processed, their date, and country of birth.

Id. at 284:18–285:13. From April 2016 through approximately January 2018 the report also

included a column tracking the “Reason for Detention,” but around January 2018, at Chief

Harper’s instruction, the spreadsheet was changed to instead ask, “If not detained, reason why?”

25

Id. at 285:18–286:21. This subtle change shifted the administrative burden on the field office

decisionmaker from justifying the reason an age-out was detained to subsequently justifying the

reason an age-out was released.

51. On October 17, 2018, after this court had granted Plaintiffs’ motions for a preliminary

injunction and to certify the class, JFRMU / ERO announced to field officers that they would be

using a new system to document age-out custody determinations. The new system involved

uploading documentation to a SharePoint database and filling out an Age-Out Review Worksheet

(“AORW”) for each age-out that was processed by ICE. PX-1; Trial Tr. at 250:20–251:6

(identifying PX-1 as a memorandum from Chief Harper dated October 17, 2018 “announcing . . .

the new worksheet and SharePoint documentation system”); id. at 524:22–525:22 (same).

52. The memorandum announcing the new system went to all field office directors and

deputy directors and announced that “[t]he process consists of a standardized worksheet that the

FOJCs will use to document their considerations and a SharePoint site to track the entire

population of age-outs.” PX-1 at 1.

53. The SharePoint database required FOJCs to fill out the same basic information

regarding each age-out that they had entered into the monthly age-out reports under the earlier

system, including the revised entry for “Non-Detention Reason . . . If not detained reason

why[.]” It also allowed for uploading of completed AORWs. See id. at 3–4. The database

would also “serve as the repository for the completed worksheets and other documentation

supporting ICE’s custody determinations for individual age-outs.” Id. at 1.

54. The AORW / SharePoint documentation system was designed only to document

decision processes that were already in place. It was not intended to change anything about the

decisionmaking processes. The JFRMU / ERO guidance emphasized that “The new worksheet

26

and tracking system are critical to ensure that ICE’s compliance with the law is properly

captured. It is imperative that FOJCs ensure that all age-outs, and the considerations in [FOJCs’]

custody determinations for each age-out, are documented in the SharePoint site within 24 hours

of the transfer or release from ORR custody.” PX-1 at 1.

Defendants apparently dispute this at one point in their response. They argue that the

new documentation system was “not intended to change how officers made custody

determinations so long as they were doing it properly,” implicitly suggesting that it was intended

to change or correct improper determination practices. Defs.’ Resp. ¶ 47. The Court finds

otherwise because this new suggestion, in support of which Defendants cite no testimony or

evidence, is at odds with Chief Harper’s testimony at trial and with the text of the guidance

introducing the worksheet. Trial Tr. at 251:18–252:13 (Harper), 526:1–22 (Harper) (“[T]he

process still remained the same, it just added documentation . . . .”); see also PX-1 at 1 (“The

new process merely helps document the work that officers already do regarding custody

determinations.”). FOJCs understood this as well. Munguia Dep. Desig. at 36:22–37:3; Trial Tr.

at 2771:21–2772:2 (Munguia); Hyde Dep. Desig. at 102:13–103:5; Barnes Dep. Desig. at 56:16–

57:20; Reardon Dep. Desig. at 36:1–37:16; Galvez Dep. Desig. at 149:21–150:16; Venegas Dep.

Desig. at 50:8–51:10; Black Dep. Desig. at 73:23–74:17; Trial Tr. at 2646:15–2647:14 (Black);

Zanello Dep. Desig. at 168:24–169:9. 8 Moreover, despite apparently disputing Plaintiffs’

proposed finding of fact on this point, Defendants then do not dispute Plaintiffs’ subsequent

proposed findings that “the evidence is undisputed that the AORW and SharePoint

“documentation system” were not intended to change how officers made custody determinations,

8

Officer Nancy Zanello’s name was Nancy Sullivan at the time of her deposition, but the

Court uses her current last name for consistency with her testimony at trial. See Trial Tr. at

3770:24–3771:2 (Zanello).

27

or to ensure that those decisions were made in compliance with the statute” or that “[t]he officers

in the field implementing the new documentation system understood the system in the same

way.” Defs.’ Resp. ¶¶ 48, 49.

55. The new documentation system was intended to capture and record all the

information an FOJC considered in making a custody recommendation. PX-1 at 1 (“[I]t is

imperative that FOJCs ensure that all age-outs, and the considerations in their custody

determinations for each age-out, are documented . . . .”); Trial Tr. at 4367:13–16 (Harper)

(testifying that any sponsor considered by an FOJC is “supposed to” be documented on an

AORW); see also Defs.’ Resp. ¶ 54 (not disputing this).

56. The October 2018 AORW asked for basic information concerning an age-out (AOR,

age-out’s name, date of birth, alien number, time in custody, gender) and for the FOJC’s name,

and then included 16 items, which were as follows, see PX-1 at 6–8:

a. Item 1 asked whether the age-out’s identity and citizenship had been sufficiently

determined and provided boxes which could be checked Yes or No.

b. Item 2 asked about the “Health and Notoriety” of the age-out: whether the age-out

was “a public figure,” whether there was “Congressional or media interest” in the

age-out, and whether the age-out had “[k]nown or reported medical issues.”

Again these were yes-or-no questions.

c. Item 3 was headed “Database Queries” and asked whether there were positive or

negative results to a search for the age-out in each of a variety of databases,

including “Benefits Pending” and “Asylum Pending.” This item also included a

space for remarks from the FOJC explaining the results.

28

d. Item 4 was headed “Current ORR Facility Type” and asked whether the age-out

was coming from a shelter, foster care, or a staff secure or secure facility.

e. Item 5 asked whether the age-out had certain types of underlying charges.

f. Item 6 asked whether any Significant Incident Reports 9 were provided by ORR

and included boxes to be checked for Yes, No, and Not Applicable.

g. Item 7 asked whether behavioral information was provided, and provided boxes

for Yes, No, and Not Applicable, along with space for the FOJC to “briefly

describe” the behavioral information.

h. Item 8 asked first “Is this age-out a flight risk, danger to the community, or

danger to themselves?” and provided boxes for Yes or No responses. Below that

question, Item 8 read “NOTE: If Yes, check and explain the reason(s) why in the

remarks.” Below this were five possible reasons: Terrorist Affiliation or Ties;

Criminal/Delinquency History; Gang Affiliation; Escapes/Non-compliance

History; and Other Credible Threat. Each of these was followed by Yes and No

check boxes, and there was space for remarks below.

i. Item 9 asked whether the age-out had an attorney and provided space to record the

attorney’s information.

j. Item 10 asked whether a post-18 plan has been provided and provides space for

the names and relationships of any potential sponsors.

k. Item 11 asked whether certain types of post-18 plan documentation was provided.

9

Item 6 reads “SIR(s) Provided?” SIR is an acronym for Significant Incident Report and

these are provided by ORR. The fact that a UAC has an SIR does not necessarily mean the UAC

did something wrong. Trial Tr. at 563:19–25.

29

l. Item 12 asked whether “any individual or organizational sponsors or supervised

group homes [are] available to this age-out for placement” and then provides

space for remarks with the instruction “if No, briefly explain in the Remarks which

of these options were evaluated and why they were not used.”

m. Item 13 asks for the Risk Classification Assessment (“RCA”) Recommendation

for the age-out. 10

n. Item 14 is headed “Discretionary Release Action(s).” It instructs “Check all of the

options that were evaluated. If any options were not evaluated, or were evaluated

and not used, briefly explain why in the Remarks.” It asks about four types of

discretionary release actions: OSUP, OREC, see supra ¶ 43, Bond, and ATD.

There is also space for remarks.

o. Item 15 reads “Detention Decision, Considering Least Restrictive Setting

Available” and has boxes to be checked for Detain or Not Detain. It also asks for

a custody classification, if the age-out will be detained. The response to item 15

reflects the FOJC’s custody recommendation. Trial Tr. at 518:12–21.

p. Item 16 provides space for the FOJC’s supervising officer (SDDO) to indicate

approval of the FOJC’s recommendation. See also Trial Tr. at 518:18–21. It asks

whether the SDDO approves or disagrees with the recommendation, and provides

space for remarks along with instructions to “Briefly justify the recommendation

in the Remarks, to include alternatives if supervisor disagrees.”

10

The RCA tool is a program used by field officers that makes recommendations as to

whether to release or detain an individual and, if the recommendation is to detain, as to what

appropriate level of ICE custody detention (e.g. low, medium, high) would be for that individual.

See Ravenell Dep. Desig. at 84:3–23; Harper 12/6/18 Dep. Desig. at 168:3–169:4; see also infra

¶¶ 125–130.

30

57. At an April 2019 JFRMU training in San Antonio, FOJCs were trained on how to fill

out an April 2019 version of the AORW that was different from the October 2018 AORW that

had been in use for almost six months. Trial Tr. 416:20–419:2 (Harper); see also PX-197

(completed April 2019 version of the AORW); PX-203 at 4–5 (illegible April 2019 version of

the AORW appearing in a PowerPoint presentation from the April 2019 training); infra ¶¶ 83–

100 (discussing the April 2019 training).

58. In August 2019 JFRMU/ERO issued another guidance to field officers announcing

the implementation of another updated version of the AORW to be used effective September 1.

DX-6; see Trial Tr. at 242:3–9, 253:12–19 (Harper). As in the October 2018 guidance,

ERO/JFRMU emphasized that the system was “critical to ensure that ICE’s compliance with the

law is properly captured,” and stated that it was “imperative” that materials be documented and

uploaded “within 24 hours of the age-out’s transfer or release from ORR custody.” DX-6 at 2

(emphasis in original); see also Trial Tr. at 256:16–258:6 (Harper) (comparing similar language

in the October 2018 Guidance (PX-1) and the August 2019 Guidance (DX-6).

59. The April 2019 version of the AORW that had been used at the April 2019 JFRMU

training in San Antonio was never used in the field. Trial Tr. at 419:24–420:3 (Harper); id. at

546:16–547:2 (Sanchez).

60. The new August 2019 version of the AORW was changed in a number of substantive

ways. Compare PX-1 at 6–8, with DX-6 at 3–6. Among the changes were the following:

a. Item 8 from the earlier AORW was revised and broken up into three items,

numbered 8a, 8b, and 8c.

b. Item 8a asks “Is this age-out a danger to themselves?” and provides Yes and No

boxes. Below this there are additional options to which the FOJC can answer Yes

31

or No: Medical/Mental Health Issues, Suicidal Ideation, History of Self-Harm,

and Other Reason. Each has its own check boxes. Below these, the FOJC is

instructed to “Write here a detailed explanation for why this person is or is not a

danger to himself or herself.”

c. Item 8b asks “Is this age-out a danger to the community?” and provides Yes and

No boxes. Again there are additional options to which the FOJC can answer Yes

or No: Gang Affiliation; Criminal/Delinquency History; Terrorist Affiliation or

Ties; ORR Reported Behavioral Issues; and Other Reason. Below these, the

FOJC is instructed to “Write here a detailed explanation for why this person is or

is not a danger to the community, providing details of any question answered

‘Yes’ above.”

d. Item 8c asks “Is this age-out a flight risk?” Again there are additional options to

which the FOJC can answer Yes or No: Family and Community Ties;

Escapes/Non-Compliance History; Prior Immigration History; Lacks Fixed

Address in the United States; Other Reason; and Final Order. Next to “Final

Order” is a space for the FOJC to enter the date of the Final Order if one exists.

Finally there are instructions to “Write here a detailed explanation for why this

person is or is not a flight risk.”

e. Item 9, asking whether the age-out has an attorney and for that attorney’s contact

information, is now Item 9a. A new Item 9b asks “Does this person have an

advocate who is not an attorney, such as a social worker or staff member at a

shelter?” If the answer is Yes, the FOJC is instructed to provide a name and

contact information.

32

f. Item 12 asks whether there is a potential sponsor or organizational sponsor (with

the question phrased in the singular (“sponsor”) rather than the plural

(“sponsors”) on the earlier form. The space for remarks explaining which options

were evaluated and not used has been eliminated, and instead there is only space

for the sponsor’s contact information.

g. Items 13 through 16 are significantly changed and consolidated into an Item 13

and an Item 14 only.

h. Item 13 asks for “FOJC Recommendation, Considering Least Restrictive Setting

Available” and instructs the FOJC to choose either Detained or Non-Detained. It

then asks “Were all options/settings considered when making this

recommendation?” (Yes or No) and “Are any alternatives to detention available

for this age out?” (Yes or No). There is space for the FOJC to “detail

alternatives” and a separate space for the FOJC to “provide supporting factors for

the FOJC recommendation.”

i. Item 13 continues instructing the FOJC to choose one of three possible “RCA

Custody Recommendation[s]” (High, Medium, or Low) if the recommendation is

to detain. Alternatively, if the recommendation is not to detain, the FOJC is

instructed to choose one of the following: OREC, OSUP, OREC/ATD,

OSUP/ATD, Parole, or Bond. There is then a space for the FOJC’s signature and

the date.

j. Item 14 has the heading “ICE Supervisor Custody Determination.” It asks

whether the supervisor “Concur[s] with FOJC Recommendation” and allows for a

33

Yes or No answer. Space is provided for comments, and for the supervisor’s

name and signature and the date.

61. The revised AORW did not change the fact that the AORW and SharePoint system

was only designed to document the decisionmaking process, not to change it. The revisions did

not change any decisionmaking procedures for FOJCs, but only to help document the processes

they were already carrying out. Trial Tr. at 258:7–259:5 (Chief Harper testimony indicating

there was no “new or additional guidance” in the new documentation system); DX-6 at 1 (“These

procedures help ICE document the work its officers do every day . . . .”); see also PX-53 at 12

(training document stating that “FOJCs should use the Age-Out Review Worksheet to assist in

documenting the Age-Out custody determination process”); Trial Tr. at 179:9–19 (Chief Harper

reviewing PX-53 at 12).

a. AORW Reliability Issues

62. A significant portion of the AORWs produced in this litigation were not completed

by the FOJC who made the custody recommendation at or around the time that the age-out was

processed, as the JFRMU/ERO guidance suggests is proper procedure. See supra ¶¶ 54, 58. In

their April 2019 Motion to De-Certify the Certified Class for Lack of Numerosity and

Commonality (“Mot. to De-Certify”), Defendants had told the Court that “since October 17,

2018, ICE [FOJCs] routinely document their custody determinations . . . [and] have been

required to upload, for each and every age-out, an [AORW].” Mot. to De-Certify at 2, ECF No.

140. The Court was informed that “[individual] mistakes are, as they should be, infrequent

outliers.” Id. Chief Harper filed a declaration stating that “[AORWs] are now being completed

on a nationwide basis” and that “ICE ERO [was] complying with the JFRMU October 17, 2018

guidance.” Decl. of Mellissa B. Harper (“Harper 3/28/19 Decl.”) ¶¶ 25–26, ECF No. 140-3.

These representations were incorrect in several respects.

34

63. A number of AORWs were created or updated shortly before depositions were taken

in connection with this litigation. Officer Ana Sanchez, a National Juvenile Coordinator

(“NJC”) in JFRMU, testified that in the days before Chief Harper’s December 6, 2018 deposition

she and another NJC, Dawn Helland, were tasked with identifying age-outs processed since

October 18, 2018 for whom no AORW had been uploaded to the SharePoint database. Trial Tr.

631:8–633:17; see also PX-267; Trial Tr. at 351:4–352:2 (Chief Harper’s testimony). Officer

Sanchez then contacted field officers and asked them to complete and upload the missing

AORWs. Trial Tr. 635:8–636:8, 638:3–8. E-mails show Officer Sanchez telling Chief Harper,

“[w]e reviewed all the cases. 17 cases are missing the worksheet. . . . We sent emails to the

FOJCs and the SDDOs,” PX-286 at 2, and later reporting that “All the missing [AORWs] were

completed and uploaded to SharePoint,” id. at 1.

64. The day after her deposition, Chief Harper tasked Officer Sanchez with working with

Chicago FOJC Geoffrey Pepple to “review” AORWs from the Chicago field office, to “update[]”

the worksheets, and to “get more detail on the forms that need it.” PX-290 at 1; see also Trial

Tr. at 649:24–651:24. Officer Sanchez then e-mailed Chicago FOJC Shawn Holmes, asking him

to “review” certain AORWs and to “make sure that the reason for detention or release [was]

stated” on them. PX-275; Trial Tr. 652:17–659:12 (Sanchez Testimony regarding PX-275 and

PX-276); see also PX-276 (similar email to Officer Holmes). Officer Sanchez next e-mailed

SDDO Linda Hyde, in the New York City field office, requesting similar review of and revisions

to AORWs. Trial Tr. 660:7–25, 662:21–663:14; PX-282; PX-284; see also PX-285 (subsequent

email from Sanchez to Hyde asking if Hyde had any additional changes for the worksheets). She

also reached out to the Phoenix, El Paso, and Los Angeles offices regarding revisions to their

AORWs. See PX-335.09849–50 (Phoenix); PX-289 (El Paso); PX-501 (Los Angeles); see also

35

Trial Tr. 3717:21–3719:17 (Los Angeles FOJC Oscar Irizarry identifying PX-501 as a thread of

e-mails in which, at Officer Sanchez’s request, he altered responses on an AORW six weeks

after the age-out was detained).

65. After Officer Sanchez secured the revisions she requested, Defendants then produced

the revised or altered versions of the AORWs to the Plaintiffs in this case. Compare, e.g., PX–

335.09849–.09850, with PX–335.09835–.09837; PX–335.18899–.18901; PX–335.19082–

.19084; PX–335.19197–.19199 (e-mail from Officer Sanchez to Phoenix FOJC Zanello

requesting changes and produced AORWs reflecting those changes).

66. In addition, more than one field officer testified that his or her name was on AORWs

that he or she did not fill out, or testified to filling out or adjusting AORWs with others’ names

on them. See Trial Tr. at 3029:5–3034:3 (Mason) (SDDO testifying that he believed someone

else may have put his name on an AORW that he did not fill out because “in a rush to finish

these [AORWs], he put my name on every single one of them,” id. at 3033:23–25); id. at

3855:12–23 (FOJC Nancy Zanello of Phoenix confirming that she “made . . . changes to [a]

worksheet according to Ms. Sanchez’s email . . . even though the decision had been made about

a month earlier,” id. at 3855:12–15, by a different FOJC and that she did not believe she was

involved in that decision); Hormiga Dep. Desig. at 291:8–292:12 (Houston FOJC Richard

Hormiga identifying PX-335.22446–80 as an AORW filled out by someone else even though he

had processed the age-out it covers). Officer Zanello testified that, to complete one worksheet,

she copied and pasted information from another form, probably did not speak to the age-out, and

did not necessarily even speak with the colleague who actually processed the age-out. Trial Tr.

at 3848:22–3849:1, 3850:1–3 (Zanello). The revisions that Sanchez requested and Zanello

36

carried out included changes as substantive as change the answer for “flight risk” from “no” to

“yes.” See id. at 3854:2–15 (Zanello).

67. Finally, in July 2019, ICE informed the Court that it had been failing to document a

significant portion of age-outs for at least several years. See PX-351 (Aug. 29, 2019 Decl. of

Mellissa B. Harper (“Harper 8/29/19 Decl.”), ECF No. 204-1); see also Mot. to Hold Defs.’ Mot.

to Decertify the Class in Abeyance, ECF No. 192.

68. Between October 2018 and July 2019 ICE and ICE officials represented to the Court

that all age-out custody determinations were being memorialized in AORWs that were being

uploaded to the SharePoint database. See, e.g., Harper 3/28/19 Decl. (“Following JFRMU’s

October 17, 2018 guidance, the Age-Out Review Worksheets are now being completed on a

nationwide basis.”); Defs.’ Mot. To De-Certified the Certified Class at 1, ECF No. 140 (“ICE

implemented a process that assures proper, contemporaneous documentation of its compliance

with 8 U.S.C. § 1232(c)(2)(B). Under this procedure, ICE comprehensively documents its

process . . . . The implementation of this nationwide process forecloses the introduction of new

members into the class, absent some sort of discrete error or mistake by an individual ICE

officer.” (footnote omitted)).

69. Between April 1, 2016 and March 31, 2019, ICE had failed to make records for 1,473

age-outs, including 228 age-outs processed between October 17, 2018 and March 31, 2019 while

the AORW/SharePoint system was in place. PX-351 ¶ 2. Additionally, 88 individuals had aged

out between March 31, 2019 and May 24, 2019 without being recorded in the SharePoint site.

Id. This was a significant upward revision. See Trial Tr. at 347:17–18; 348:3–4 (Chief Harper

characterizing the discrepancy as “significant”). To take as an example one date range Chief

Harper addressed in two declarations, between October 17, 2018 and January 30, 2019, the Court

37

had previously been told that 581 individuals aged out, and that 154 of these had been detained.

PX-351 ¶ 6 (citing Harper 3/28/19 Decl. ¶ 27). In fact, 742 age-outs had been processed and 263

of these had been detained—a 27.7% increase in the number of age-outs, and an increase in

detention rate from 26.5% to 35.4%. Id.

C. Policy, Guidance, and Procedures at the National Level

70. In many, but not all, field offices, deportation officers rotate in and out of the position

of FOJC with some frequency—every year or two. See Trial Tr. at 149:24–150:4 (Harper)

(stating that “[g]enerally speaking it’s every two years” but that “it can be” every year in some

circumstances); see also, e.g., Trial Tr. at 3032:4–8 (Mason), 3623:6–11 (Pepple); Hormiga Dep.

Desig. at 26:10–29:12 (describing recent turnover of the entire Houston FOJC team); Venegas

Dep. Desig. at 5:25–6:11 (“We rotate[d] the units on a yearly basis”). In some other offices,

officers can remain FOJCs for long periods of time. See, e.g., Pepple Dep. Desig. at 8:5–6; Trial

Tr. at 3667:22–25 (Irizarry).

71. FOJCs are trained on the job by their predecessors as FOJCs, are trained at the annual

JFRMU training, and have access to the FOJC handbook and other online materials from

JFRMU. Harper 12/6/18 Dep. Desig. at 220:2–221:2; see also, e.g., Trial Tr. at 2562:22–2563:3

(Black); 2673:19–2674:17 (Kaskanlian); Trial Tr. 2757:18–2758:1 (Munguia); Trial Tr.

3133:15–3134:1 (Mason). There is also no formal headquarters or other training specifically

designed for onboarding new FOJCs. Harper 12/6/18 Dep. Desig. at 220:2–221:2; see Defs.’

Resp. ¶ 190 (not disputing that there is no formal or other training specifically designed for

onboarding new FOJCs).

38

1. Training and Guidance on Age-Out Custody Determinations

a. Written Guidance

72. Between the 2013 amendment of the TVPRA that included Section 1232(c)(2)(B) and

March 2018, ICE headquarters issued guidance to the field regarding Section 1232(c)(2)(B) three

times, in May 2013, January 2016, and November 2016, 11 and that ICE also addressed the statute

in a 2017 FOJC handbook. PX-338 at 2–5 (3/27/2018 Harper Decl.); see also Defs.’ Resp.

¶¶ 160–65 (identifying no additional guidance from this time period and disputing only

Plaintiffs’ characterization of this guidance as improper).

73. The May 2013 guidance says that the language of the amended TVPRA/VAWA

“comports with existing ICE practices in that custody determinations are made after considering

the circumstances of each individual case” and that age-outs “may also be eligible to participate

in [ATD] programs based on the alien’s need for supervision.” PX-338 at 7; see also Ravenell

Dep. Desig. at 99:21–100:16 (identifying the document). It also explains that ICE will begin

tracking age-out custody determinations by means of the monthly age-out reports described

above. PX-338 at 7. It does not quote the statute or reference the statutory factors: danger to

self, danger to community, and risk of flight.

74. The January 2016 guidance is a multi-page outline of guidance for apprehending and

processing UACs, most of which was devoted to the initial apprehension of UACs and transfer

of UACs to ORR custody. Id. at 11–15. The final page addresses age-outs. It paraphrases the

statutory language, including mention of the requirement to “consider placing [age-outs] in the

11

Chief Harper’s March 2018 declaration gave the wrong date for this third guidance

document. PX-338 at 3. A version produced by ICE in the context of an email thread clarifies

the proper date. PX-133.

39

least restrictive setting available, taking into account the UAC’s danger to self, danger to

community, and flight risk.” Id. at 15. It also referenced DHS Enforcement Priorities. Id.

75. The November 2016 guidance states that the statute “specifically requires ICE to

consider placement in the least restrictive setting based on the circumstances of each individual

case.” PX-338 at 9. It further states: “A default to detention is never acceptable in these cases;

instead, all custody determinations must include an assessment of the individual’s danger to self,

the community, and risk of flight, as well as recommendations submitted by ORR in ‘Post-18

Plans.’ Following this assessment, if detention is not justified, release through one of ICE’s

alternatives to detention mechanisms should be considered.” Id.

76. The FOJC Handbook, PX-338 at 24–94, references Section 1232(c)(2)(B) at three

points. See Defs.’ Resp. ¶¶ 164–65 (not challenging this). Page 18 of the Handbook says that

age-outs “shall be considered for placement in the least restrictive setting” and that “[s]uch

placements should be considered after evaluating the individual’s danger to self and the

community, and risk of flight.” PX-338 at 44. Pages 43 to 44 of the Handbook discuss the

statute again, stating that it “requires ICE consider least restrictive settings when making custody

determinations” for age-outs, that “[d]eterminations should be made considering the

circumstances of each individual case,” and that ATD programs are available for some age-outs.

PX-338 at 71. The third reference comes in a discussion of post-18 plans. See id. at 71–72.

After quoting the statute, the Handbook says that “[b]ased on the totality of all the

information . . . a custody determination should be made prior to transfer back to ICE custody.”

Id. at 72.

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77. An updated FOJC Handbook introduced in April 2018 did not make any substantive

changes to any material referencing Section 1232(c)(2)(B). PX-346 at 24–25, 54–56; see Defs.’

Resp. ¶ 166 (not disputing this); see also DX-4 (2018 FOJC Handbook).

78. Other than materials used in conjunction with ICE’s April 2019 annual training, the

only other written policy guidance from ICE concerning Section 1232(c)(2)(B) has been a “one

pager job aid” sent by Chief Harper to all FOJCs on December 21, 2018. PX-135; see Ravenell

Dep. Desig. at 153:24–154:8 (NJC Ravenell recalling no additional written guidance); Defs.’

Resp. ¶ 167 (identifying no additional written guidance beyond training materials). The “one-

pager” consists of a flowchart “Guidance on Age-Outs.” PX-135 at 2. It lays out that ORR

should notify an FOJC when a UAC is approaching their 18th birthday and that “ORR provides

FOJC with a Post-18 Plan 1-2 weeks prior” to that birthday. Id. Next, according to the

flowchart, the “FOJCs assess [the age-out’s] danger to self, community, and flight risk,” and then

“FOJCs make a Custody Determination based on the totality of the circumstances” and should

consider “[p]ublic safety,” “flight risk,” “Final Order Status,” “Post-18 Plan,” “Communication

from ORR,” and “External stakeholder input.” Id. The next box says that “[i]f appropriate,

FOJCs consider alternatives to detention programs based on an [age-out’s] need for supervision,”

which can include placement with a sponsor, OREC, OSUP, or a program through the ATD unit.

Id.

79. The same “one-pager” flowchart guidance that Chief Harper circulated on December

21, 2018 also appeared in training materials used at the national ICE training in April 2019. PX-

203 at 14. See Trial Tr. at 224:22–225:3; Defs.’ Resp. ¶ 216.

80. The “one-pager” is the only written guidance Chief Harper has issued concerning

how age-out custody determinations are to be made. Any additional guidance she has given on

41

this topic has been during monthly phone calls, and any additional written guidance she has

issued has concerned only documentation of age-out custody determinations. See Defs.’ Resp.

¶ 167 (identifying no additional written guidance and citing only training materials as providing

instruction beyond the one-pager).

b. Annual In-Person Training

81. Until the fall of 2019, the only in-person training that field officers received with

respect to age-out processing and custody determinations was an annual training conducted by

JFRMU. Trial Tr. at 535:24–537–11. Trainings were held in 2016 and 2018, but not 2017 due

to funding constraints. Harper 12/6/18 Dep. Desig. at 44:17–22.

82. In each of the 2016 and 2018 trainings, JFRMU presented only one slide addressing

offering instruction on age-out custody determinations. See PX-338 at 4–5, 18, 21 (Harper Decl.

and exhibits); PX-137 (2016 presentation excerpt); PX-139 (2018 presentation excerpt); see also

Defs.’ Resp. ¶ 168 (failing to challenge this contention or to point to any other materials

presented at the 2016 or 2018 training). Both of these years, FOJCs were told to “[s]eek [an]

ORR Post-18 Plan,” to run the RCA tool, to make a “case-specific custody determination,” and

to “[c]onsider VAWA.” Id. at 18, 21. In 2016, though not in 2018, the slide instructed FOJCs to

“[c]onsider least restrictive setting,” but in neither year did it mention the statutory factors

mentioned in Section 1232(c)(2)(B)—danger to self, danger to the community, and risk of flight.

Id.

83. JFRMU’s spring 2019 training—the first training after implementation of the AORW

and SharePoint system—addressed age-out processing during two of approximately thirty

training sessions. One of these sessions was titled “Current litigation: Garcia Ramirez v. ICE”

and the other focused on “Documentation Activity” for age-out custody determinations. Trial

Tr. at 539:11–14 (Sanchez), 541:6–542:22 (Sanchez); PX-198 (training schedule); see also

42

Defs.’ Resp. ¶ 169 (failing to identify any additional coverage of age-out processing during the

2019 training).

84. The session reviewing this litigation, Garcia Ramirez v. ICE, was led by Officer

Sanchez. PX-203 (PowerPoint presentation); Trial Tr. at 542:23–25 (Sanchez). The goals of the

session included “[d]iscuss[ing] the custody determination process” and “[d]escrib[ing] the

importance of documenting all the articulable facts related to the custody decision.” PX-203 at

3; Trial Tr. at 543:11–18.

85. Part of the Garcia Ramirez v. ICE presentation involved Officer Sanchez describing

the AORW “as an example of the available job aids” and emphasizing “the importance of

documenting all the articulable facts related to the custody decision.” PX-203 at 4–5. The

version of the AORW that Officer Sanchez displayed and discussed was the interim April 2019

version that was never implemented for use by officers in the field. Trial Tr. at 546:16–547:2

(Sanchez); supra ¶¶ 57, 59.

86. Officer Sanchez next displayed a slide addressing Section 1232(c)(2)(B) and

summarized it as requiring that “[a]ny minor transferred from ORR to ICE custody at the age of

18 shall be considered for placement in the least restrictive setting.” PX-203 at 6.

87. Another slide summarized the “Age-Out Process.” It explained that FOJCs making

custody determinations “must consider the totality of the circumstances and all available

information” including not only flight risk, public safety, and danger to self, but also “Post-18

Plan or lack thereof,” “Recommendation letter from sponsor, attorney . . . , advocates, and/or

NGOs,” “Behavioral issues,” and “Significant incident reports.” Id. at 8. Officer Sanchez

testified that although the phrase “totality of the circumstances” does not appear in the statute, it

43

was her understanding that FOJCs not considering “every piece of information available” would

“not be doing their job.” PX-203 at 8; Trial Tr. at 548:16–24 (Sanchez).

88. The next slide showed a chart reflecting a sequence of steps for FOJCs to take when

processing age outs: first, “[p]erform a Risk Classification Assessment (RCA)”; second,

“[c]onsider VAWA in all Age-Out custody determinations”; third, “[m]ake a new custody

recommendation to the [SDDO]”; and fourth, serve the necessary form (I-286) reflecting the

custody determination. PX-203 at 10; Trial Tr. at 548:25–549:22 (Sanchez). At the second

step—considering VAWA—there are additional notes on the chart: “Detention as a default is

NOT acceptable” and “Consider the least restrictive setting, ORR facility type, and other

available resources.” PX-203 at 10.

89. The next slide emphasized that “Good documentation is key,” and listed forms and

documents, including the AORW, that could help memorialize decisionmaking. PX-203 at 12.

Officer Sanchez’s presenter notes reflect that she told the FOJCs that a detailed entry in ICE’s

ENFORCE Alien Removal Module (“EARM”) 12 was “paramount” and that “[a] comment such

as [‘]aged out transferred to ICE adult detention[’] is not acceptable” because it fails to “provide

the reason why the detain decision was made.” Id.

90. The next slide displayed the flowchart guidance document that Chief Harper had

circulated in December 2018. PX-203 at 14; PX-135; see supra ¶¶ 78–132 (explaining that the

flowchart indicates that FOJCs should first make a custody determination and then, “[i]f

appropriate,” consider alternatives to detention).

91. The remainder of the presentation—aside from some concluding and review slides—

involved review of three hypothetical age-out scenarios. PX-203 at 15–33. In the first, the

12

EARM is a case management system used by ICE. Trial Tr. at 599:3–7.

44

hypothetical age-out was considered a flight risk because he lacked family or community ties in

the United States, but could properly be released to a program in the local community identified

by ORR in a post-18 plan because the program had a “good reputation” for “providing young

adults with housing, schooling, and medical and legal assistance.” See id. at 15–18.

92. In the second hypothetical, the age-out was a young mother who had been placed in

ORR custody along with her one-year-old child. PX-203 at 21. ORR had learned that the only

potential sponsor they had been able to identify was a suspected smuggler, and had explained

this to ICE but had not provided a post-18 plan. Id. ORR then requested that ICE take custody

of the aging-out mother while leaving the one-year-old in ORR custody. Id. The presentation

suggests that the correct analysis would be to regard the age-out as a flight risk and a danger to

herself because the smuggler/sponsor posed a safety concern. Id. at 23. The fact that the age-out

had an infant child would mean that ORR would not release the infant to ICE if the mother was

not going to be released from ICE custody. Id. The presentation concluded that “ICE detention

was the least restrictive / safer setting for this Age-Out because at the time of custody

determination she has no viable sponsor except the smuggler.” Id. at 25–26.

93. Chief Harper testified that this second hypothetical was based on a real case from

ICE’s New York office but that she was not aware of any cases presenting similar fact patterns.

Trial Tr. at 186:3–25 (Harper). She could not identify another case in which ORR suggested that

a mother be separated from a one-year-old child. Id. at 187:10–13 (Harper). She further testified

that she believed the presentation’s conclusion was the correct one and that an officer faced with

this situation was not obligated to consider or try to identify any alternatives other than what

ORR recommends. Id. at 187:23–190:11.

45

94. In the third hypothetical, ORR had given ICE a post-18 plan stating that an age-out

with no family or community ties in the United States had been diagnosed with PTSD and had

expressed suicidal ideations. PX-203 at 28. ORR was recommending release to an emergency

shelter. Id. The presentation suggested that the age-out was a flight risk because of his lack of

ties and that he posed a risk to himself. Id. at 30. The presentation concluded that “ICE

detention was the most appropriate setting” because “ICE needs to consider the danger to self”

and “ICE has the responsibility to place this subject where his medical needs can be met.” Id. at

32.

95. Chief Harper testified that under this third scenario, an ICE officer would not be

under any obligation to try to identify alternative options for placing this age-out, and that she

agreed detention was the right outcome in this scenario. Trial Tr. at 192:13–193:4 (Harper).

96. The documentation activity session was also led by Officer Sanchez, along with

Officer Ravenell. PX-199 at 2. The second half of this presentation involved having attendees

review two completed AORWs. See id. at 17–27; see also PX-197 (training worksheet); PX-198

(same).

97. “Key takeaways” identified in the presentation included:

k. “[T]here is no right/wrong answer, but you should properly document your

decision[.]” PX-199 at 22.

l. “Ensure EARM case comments match the [AORW]; Worksheet should also

match SharePoint[.]” Id.

m. “The age-out was in ORR custody for 86 days, and ORR was not able to identify

an individual sponsor, a Post 18 program, or a supervised group home for [the

age-out.]” Id. at 23.

46

n. “He has no equity, family, or community ties in the U.S., thus posing a significant

flight risk [.]” Id.

98. The AORW used in the documentation activity session was the interim April 2019

version that was never used in the field. PX-199 at 21; Trial Tr. at 559:19–21 (Sanchez).

99. Regarding Section 1232(c)(2)(B), the presentation explained that “ICE considered

VAWA in the custody determination,” but that “ICE was not able to consider any release options

because the age-out does not currently have a viable sponsor.” Id. at 24.

100. The presentation listed the RCA recommendation as among the “Documents to be

Completed” as part of the custody determination, id. at 25, and identified failure to process an

RCA recommendation as a deficiency because “RCA should be used as an aid to complete the

custody redetermination process,” id. at 27.

c. Additional Instruction

101. In 2018, JFRMU instituted an “e-learning module,” covering UAC processing . This

was an online training program lasting around thirty minutes, based on the FOJCs handbook and

covering the role of the FOJC and relevant legal authorities. PX-140; see Ravenell Dep. Desig.

at 166:18–168:24.

102. One slide on the UAC processing e-learning module mentions VAWA. PX-140 at

56–57. 13 It explains that the statute “states that [age-outs] are eligible to participate in programs

such as Alternatives to Detention (ATD), using a continuum of alternatives based on the need for

supervision.” Id. at 57. It does not include the language of the statute, does not mention the

requirement to consider the least restrictive setting, and does not refer to the statutory factors of

danger to self, danger to community, and risk of flight. Id.

13

The same slide also mentions provisions of the TVPRA other than Section

1232(c)(2)(B).

47

103. Chief Harper also holds monthly phone calls with FOJCs in which she “cover[s] the

most current topics, anything that comes to [JFRMU’s] attention, [and] answer[s] any question

the field may have.” Trial Tr. at 151:3–12 (Harper). These calls last thirty to sixty minutes and

cover all of JFRMU’s areas of focus, not only age-outs. Id. at 151:3–25; Harper 12/6/18 Dep.

Desig. at 51:11–14. No minutes are prepared and no other records of what is discussed on the

monthly calls is kept. Harper 12/6/18 Dep. Desig. at 53:17–20.

Plaintiffs do not dispute that “JFRMU holds monthly phone calls with FOJCs to discuss

issues and disseminate information,” but they dispute whether JFRMU’s monthly calls constitute

or provide training. Pls.’ Resp. FF ¶ 88. Whether the calls can be said to constitute or provide

training of one form or another is immaterial, as “training” and “guidance” are not terms that

need to be defined in order for this case to be resolved. To the Court, it seems that the calls are

best described as a form of guidance or, at most, informal training, considering that no materials

are prepared for distribution or to memorialize the topics covered. This is in contrast with the

formal training held each year and with the guidance materials distributed from time to time by

JFRMU/ERO. It is appropriate to describe the phone calls as informal because, whatever

training they contained, it was less rigorous, less memorable, and more difficult for FOJCs to

refer back to as compared with the other forms of training which produced written records. This

is underscored by the fact that no witness, including Chief Harper, ever pointed to a specific

monthly phone call at which a particular issue was discussed.

To the extent the Court finds, below, that FOJCs did not receive formal training on a

given topic, it does not mean to suggest that this topic was never mentioned on a monthly call. A

finding that there was no formal training on a given topic means that that topic was not addressed

48

in annual training or guidance documents and thus that it was only addressed, if at all, in the

monthly phone calls.

104. In the fall of 2019, Chief Harper and Officer Helland visited the Miami field office

for additional in-person training by JFRMU for all field officers—not just FOJCs—covering all

UAC-related issues and practices. Trial Tr. at 4324:23–4325:13 (Harper).

105. Among other reasons for visiting the Miami office, Chief Harper and her staff were

concerned that FOJCs in Miami were automatically detaining age-outs without making a

VAWA-compliant decision and, instead, leaving it up to ICE’s detention unit to seek out

alternatives to detention and to consider less restrictive settings. Trial Tr. at 4327:6–4328:12

(Harper); id. at 4074:23–4075:3 (Helland).

106. The training given during the Miami visit was “not actually geared towards the

FOJCs” but JFRMU officials met with FOJCs subsequent to the formal training. Id. at 4112:23–

4413:18 (Helland). This included explaining to the FOJCs that there was no legal basis for the

Miami FOJCs’ practice of rejecting proposed sponsors for age-outs solely because they were not

lawful permanent residents or United States citizens. Id. at 4151:7–4152:20 (Helland); see also

id. at 3925:10–24, 3926:9–17 (Reardon).

107. JFRMU officials conveyed to officers in the Miami office that a decision not to

release an age-out to a particular sponsor needed to be based on danger or flight risk, not simply

on the fact that the sponsor was not a U.S. citizen or lawful permanent resident. Id. at 4151:7–

4152:20 (Helland).

108. Additional field office visits were planned but, as of the conclusion of trial in January

2020, none had taken place due to lack of funding. Trial Tr. at 4330:21–4331:2 (Harper).

49

2. Substance of JFRMU Training

a. Totality of the Circumstances

109. In training materials, ICE emphasizes to FOJCs that they should apply a “totality of

the circumstances” approach when making age-out custody determinations. PX-203 at 8 (April

2019 training presentation instructing that “[w]hen making an Age-Out custody determination,

the FOJC must consider the totality of the circumstances”), id. at 14 (“one-pager” flowchart

instructing that “FOJCS make a custody determination based on the totality of the

circumstances”); PX-203 at 2 (same); Trial Tr. at 64:14–17 (Harper); Defs.’ Resp. ¶ 95

(“Defendants admit that ICE JFRMU trains officers to make custody determinations based on the

‘totality of the circumstances.’”); see also Harper 5/2/19 Dep. Desig. at 9:21–10:13 (agreeing

that totality of the circumstances is the standard by which “all custody decisions are made

regardless of who . . . the determination is being made for”); Ravenell Dep. Desig. at 142:24–

143:24 (agreeing “[a] hundred percent” with Chief Harper’s testimony); Trial Tr. at 61:12–25,

62:20–63:1 (Harper). These materials stress the “totality of the circumstances” over and above

the three statutory factors identified in Section 1232(c)(2)(B).

110. In Officer Sanchez’s presentation on this litigation from the April 2019 JFRMU

training bold text reading “FOJC must consider the totality of the circumstances” appears in a

paragraph above a box listing bullet points identifying types of information that might matter.

These are: “Post-18 Plan or lack thereof”; “Recommendation letter from sponsor, attorney of

record, advocates and/or NGOs”; “Flight risk”; “Public safety”; “Behavioral issues during

custody with ORR and any other agencies”; “Significant incident reports”; “Danger to self”.

PX-203 at 8. The three statutory factors all appear on this sheet, but they are not emphasized

over other sources of information that are not in the statute, and all of these are presented under

the umbrella of “totality of the circumstances.” Id. The preceding slide of the same presentation

50

identifies the “Relevant Legal Authority” as “VAWA Section 1232(c)(2)(B)” and summarizes it

thus: “Any minor transferred from ORR to ICE custody at the age of 18 shall be considered for

placement in the least restrictive setting”—no mention is made of the three statutory factors. Id.

at 6. The statutory factors are treated separately at one point in Officer Sanchez’s presenter’s

notes, see id. at 9, though even there they are not connected to the statute. And nowhere in the

slides that were displayed to FOJCs are the three statutory criteria singled out or highlighted. An

FOJC reviewing the presentation’s instruction to “Consider VAWA in all Age-Out custody

determinations,” id. at 10, would not be able to tell from the presentation that VAWA also

obligates her to “tak[e] into account the alien’s danger to self, danger to the community, and risk

of flight,” 8 U.S.C. § 1232(c)(2)(B).

111. The “one-pager” job aid that was circulated by Chief Harper in 2018 and which

appears again in this same presentation, downplays the statute even further. Id. at 14; PX-135 at

2. It instructs that the custody determination is “based on the totality of the circumstances” and

then instructs FOJCs making custody determinations to consider the following: “Public safety

and flight risk factors”; “Final Order Status”; “Post-18 Plan”; Communication from ORR,

advocates and others; and “External stakeholder input.” PX-203 at 14; PX-135 at 2. Danger to

self is not mentioned and, again, statutory factors are listed alongside other inputs and under the

heading of “totality of the circumstances.” Id. The FOJC Handbook does list the three statutory

factors at two points but does not elaborate on them or provide any instruction on how to apply

them. See PX-338 at 44, 71–72; see also supra ¶¶ 76–77 (discussing the FOJC handbook in

more detail). The handbook also emphasizes that custody determinations should be “[b]ased on

the totality of all the information.” PX-338 at 72.

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112. ICE does not provide and Chief Harper has not seen any guidance or standards

defining “totality of the circumstances.” Trial Tr. at 70:12–71:18 (Harper); Ravenell Dep. Desig.

at 144:1–4. Chief Harper explained her understanding that considering the “totality of the

circumstances” means “that we consider every possible factor that we’re aware of at the time,”

Trial Tr. at 62:4–6 (Harper), and that “totality of the circumstances” is “not a standard, it’s a

phrase meaning you consider all the information that you have at the time to make a decision

based on the factors that apply at that given time,” id. at 69:14–17. See also id. at 578:9–14

(Sanchez) (“[F]or the most part, if we’re looking at the totality of the circumstances, we are

looking at everything that is there . . . .”).

b. Flight Risk and Sponsors

113. JFRMU and ICE train FOJCs to consider an age-out’s flight risk based on factors that

are present for nearly all age-outs. The training materials used at the April 2019 JFRMU training

provide, as examples of reasons an age-out could be a flight risk, “lack of ties, no viable sponsor,

no-Post 18 Plan, and long time in ORR custody.” PX-203 at 9; see also id. at 17 (providing “the

subject has no family or community ties” as an example of a flight risk); id. at 23 (“the subject

does not have equity, family, and/or community ties”); PX-54 at 23 (“He has no equity, family,

or community ties in the U.S., thus posing a significant flight risk . . . .”); id. at 26 (“The subject

does not have family or community ties in the U.S., thus posing a significant flight risk[.]”).

Most age-outs lack community ties in the United States. See Galvez Dep. Desig. 225:11–17;

Pepple Dep. Desig. at 175:13–176:5 (“The majority of our cases are what we call recent entrants

so they don’t have a lot of community ties here, and as recent entrants they would be considered

a flight risk.”); Black Dep. Des. at 24:10–17 (agreeing that her unit, and ICE generally, consider

most age-outs to be flight risk.); PX–335.09849–.09850 (email from Sanchez to Zanello

52

requesting edits to AORWs to indicate for each of three age-outs that “the subject is a flight risk

as he does not have a viable sponsor”).

114. JFRMU also instructs FOJCs to view a long period of time in ORR custody as

indicating that an age-out is a flight risk. See, e.g., Trial Tr. (Harper) at 303:12–304:13

(discussing PX-55 at 1, an email from an FOJC referencing a February 2018 monthly FOJC call

on which Chief Harper expressed that “if UACs had been in ORR custody for an extended period

of time . . . they may be considered a flight risk”); id. at 390:10–19 (Harper) (testifying, while

reviewing training materials, that “155 days a is a pretty lengthy stay to be in ORR custody” and

that this would be significant because it showed ORR “hadn’t found a sponsor for that person”);

PX-155 at 4 (email from Chief Harper stating “One big factor [regarding detention] is the

amount of time that ORR has a minor and hasn’t been able to find anyone to release them to.

That in and of itself indicates a lack of ties and flight risk.”).

This guidance is, in certain contexts, wrong. First, it does not take into account that

certain organizational sponsors have age limits and that some do not accept children. See, e.g.,

Barnes Dep. Desig. at 51:24–52:9 (discussing Casa Juan Diego, a Houston-area facility that only

accepts adults); see also Trial Tr. at 619:19–25 (Sanchez) (reviewing a letter from an

organizational sponsor that only accepts “young men ages 17 to 21”). Second, the opposite is

true for children who, while in ORR custody, had been placed in foster care and were thus free to

attend school and other activities. See, e.g., PX-335.32027 (post-18 plan for a UAC in foster

care indicating that the age-out “continues to show effort in school, with no prompting obtains

tutoring . . . is respectful in the home, and participates [in] extracurricular activities”). If children

with this level of freedom have not taken advantage of it and attempted to abscond, their length

of time in ORR custody suggests a lack of flight risk. See Trial Tr. at 2617:12–25 (Black)

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(explaining that she viewed an age-out’s long period of time in foster care as indicating she was

not a flight risk); id. at 2730:10–2731:1 (indicating that it was a “very straightforward” decision

to release on OREC an age-out who “had been living successfully in the community in a foster

care program”).

115. ICE instructs its FOJCs that a risk of flight can be mitigated, including by release to

sponsors. In one age-out scenario reviewed at the April 2019 JFRMU training, a hypothetical

age-out was said to be a flight risk because of a lack of family ties, but could be released to a

“Post-18 program” because “[t]he flight risk concern will be mitigated by the fact that the

program has an excellent record of compliance for previous cases.” PX-203 at 17; see id. at 15

(describing the program as having “a good reputation of providing young adults with housing,

schooling, and medical and legal assistance”).

116. An age-out’s risk of flight could also be mitigated by a pending application or court

case that could yield immigration benefits, like asylum, Special Immigrant Juvenile Status, or

family-based immigration visas. Andrea Saenz, a legal services provider who works with people

who are in immigration detention or facing deportation in the New York area, testified that in her

experience with immigrant clients, “somebody who wants to come back to court, who has

defenses to removal, who has counsel, who has an incentive to come back is going to come back,

so they’re not going to run away.” Trial Tr. at 1057:13–21; id. at 1029:18–25; see also Tafur

Dep. Desig. at 50:14–20 (San Antonio–area legal services provider describing a case in which,

after an age-out client was released, “she was very great at communicating . . . and making all

diligent efforts to comply with her requirement to [go] to court.”). Officer Black agreed that a

strong case for immigration benefits would disincentivize an age-out to abscond. See Trial Tr. at

54

2619:21–2621:3 (Black) (“I think most people would assume that would be good reason to stick

around and see their case through . . . .” Id. at 2620:7–8.). 14

117. Following the JFRMU visit to the Miami field office, Officer Helland sent an email to

Miami SDDO Lee-Fatt—with Chief Harper’s approval—saying, among other things, that “ERO

14

Defendants ostensibly dispute that pending immigration proceedings can disincentivize

flight, but point to no evidence in doing so other than the testimony of Plaintiffs’ expert retired

immigration Judge Robert Vinikoor. Defs.’ Resp. ¶ 111. Judge Vinikoor did testify, when

asked, that a flight risk remains unmitigated when no sponsor is available, see Trial Tr. at

1872:22–25, but he also said that “you consider other factors,” id. at 1872:18, and his statement

about unmitigated flight risk came in response to Defendants’ counsel’s instruction to disregard

those other factors, id. at 1872:19–20. When asked a clearer question by Plaintiffs’ counsel,

Judge Vinikoor agreed that “eligibility for relief to remain in the United States is a very strong

motivational factor that oftentimes shows or compels [age-outs] to return to court.” Id. at

1800:7–10. Defendants challenge Judge Vinikoor’s testimony on a variety of grounds, including

that he lacks relevant expertise because he never encountered Section 1232(c)(2)(B) and may

never have held a bond redetermination hearing for an adult who arrived in the United States as a

UAC. See Defs.’ Resp. ¶ 112. The Court declines to parse the Defendants’ numerous critiques

of Judge Vinikoor’s testimony because the essentially unrebutted testimony of Ms. Saenz, Ms.

Tarfur, and Officer Black serves to establish well enough the fact that pending immigration

proceedings might incentivize age-outs not to abscond.

Defendants also accuse Judge Vinikoor of having given “misleading testimony”

regarding the fees he charged for his services in this case. Defs.’ Resp. ¶ 267. They suggest that

Judge Vinikoor “claimed that [his work on the case] was in part ‘pro bono’—or ‘for free’—while

in reality he charged hundreds of dollars per hour” and that he “even felt the need to apologize to

the Court for his misleading testimony on this point.” Id. The Court feels compelled to set the

record straight. During his direct examination Judge Vinikoor said he was accepting “a $200 an

hour pro bono fee” for his work on this case, in contrast to his usual fee of $450 an hour. Trial

Tr. at 1778:23–25. On cross-examination, Defendants’ counsel confirmed this pro bono rate,

and asked Judge Vinikoor if he knew “what pro bono means” in Latin. Trial Tr. at 1885:10. He

responded “For free,” and counsel agreed and asked, “Is $200 an hour for free?” Id. at 1884:12–

13. Judge Vinikoor then said “I apologize.” Id. at 1884:14. Judge Vinikoor had nothing to

apologize for, because he had never claimed to have been working “pro bono” independent of

quoting his $200 an hour pro bono rate. He never suggested his services were provided for free.

Further, both Judge Vinikoor and counsel mistranslate pro bono, which translates from Latin as

“for good” or “for the public good” and is commonly understood to include work performed at

reduced rates. See, e.g. Sally Kane, What is Pro Bono?, The Balance Careers (Jun. 27, 2020),

https://www.thebalancecareers.com/what-does-pro-bono-mean-2164411; Carla Tardi, What does

Pro Bono Really Mean?, Investopedia (Feb. 22, 2019), https://www.investopedia.com/ask/

answers/08/pro-bono.asp. It is Defendants’ argument, not Judge Vinikoor’s testimony, that is

misleading.

55

may . . . evaluate whether release to [a] proposed undocumented sponsor sufficiently mitigates

concerns of flight risk.” DX-108 at 2; see generally Trial Tr. at 4335:22–23 (Harper) (approval

of the email). But, as discussed below, ICE does not encourage its officers to make any effort to

identify, verify, or investigate sponsors for age-outs, infra ¶¶ 146–150, and officers tend not to

do so, infra ¶¶ 157–163.

118. The ATD program is another way to mitigate risk of flight. Carbonneau Dep. Desig.

at 23:12–53:2 (ICE 30(b)(6) witness on the ATD program agreeing “that the ATD program is ‘an

important flight mitigation tool,’” as he had stated in a 2015 guidance document, PX-22 at 1).

119. An April 2018 email shows that on at least one phone call, in February 2018, Chief

Harper told FOJCs that releasing an age-out on ATD was another way that flight risk could be

mitigated. See PX-55 at 1 (“During the February FOJC teleconference, it was suggested that if

UACs had been in ORR custody for an extended period they could be placed on ATD as they

may be considered a flight risk.”); see also supra ¶ 114 (discussing the implication that a long

period in ORR custody indicates a flight risk). However, the same email, from an FOJC, makes

it clear that the February 2018 call was the first time the FOJC had heard that flight risk could be

mitigated in this way. PX-55 at 1 (indicating that the age-out in question, who had been released

to a sponsor “aged out before that [February] teleconference”).

In fact, the testimony from a number of FOJCs across the country indicated that broadly

speaking, they did not release age-outs on ATD, and many were unsure whether age-outs even

qualified for the program. See infra ¶ 139 (finding that, of those who testified, five FOJCs said

they were not trained on how to place age-outs on ATD, and that three more did not believe age-

outs were eligible for the ATD program).

56

120. Across field offices, then, FOJCs view age-outs without verified individual sponsors

as lacking community ties and therefore treat them as flight risks. E.g. Trial Tr. at 3394:7–12

(Hyde) (agreeing, in reference to an age-out, that “[t]he fact that he didn’t have a sponsor meant

that he was a danger to himself and a significant flight risk”); Hormiga Dep. Des. 139:6–11

(agreeing that an age-out’s “flight risk . . . determination [was] just based on a lack of

sponsorship”); id. at 220:5–12 (testifying that an age-out was a flight risk based on “no ties to the

community . . . no ways to earn income, and no way to verify where they were going to stay”);

Galvez Dep. Desig. 241:12–242:16 (“If they don’t have a sponsor or a place to go they would be

a flight risk.”); id. at 243:16–244:15 (testifying that lack of a sponsor can be determinative of

whether an age-out is regarded as a flight risk); see also Reardon Dep. Desig. at 139:10–16

(testifying that he viewed an age-out as a flight risk until the detained unit could vet a proposed

sponsor); Trial Tr. at 567:7–16 (Sanchez) (“If you don’t have a sponsor, you don’t have an

address. I don’t see how they could release you without you having a location to go to.”); id. at

851:4–14 (Enriquez) (third party testifying that his organization “provide[s] [sponsor]

information to ICE because that’s a signal that the child has the strong community ties, which we

know from experience is a signal that the child is not a flight risk . . . .”); PX-54 at 24 (age-out

documentation exercise concluding an activity with the “key takeaway[]” that “ICE was not able

to consider any release options because the age-out does not currently have a viable sponsor”).

121. An age-out’s lack of a verified sponsor can also cause that age-out to be perceived by

ICE as a danger to himself or herself because in at least two field offices—New York and El

Paso—FOJCs have interpreted danger to self to include the risk that an age-out will not have a

place to live. Trial Tr. at 3328:3–11 (Hyde) (“[I]n my interpretation, if someone has no place to

go and [is] placed out in the elements, it could be a danger to self, yes.”); Galvez Dep. Desig. at

57

300:19-301:3 (agreeing that “an age-out that doesn’t have a fixed address or a sponsor could be a

danger to themselves because they might become homeless or otherwise suffer adverse

consequences”).

This argument is largely a red herring. Regardless of the fact that this logic does not

appear to be supported by the plain language of the statute, it is not supported by the facts

presented at trial. With respect to the danger of exposing age-outs to the elements, this runs

counter to the data indicating that two of the field offices with the highest detention rates are

Houston and Miami, where the purported risk of exposure to the elements does not hold up. See

infra ¶¶ 176, 191. With respect to offices like Chicago and New York where the elements could

pose a hazard to age-outs with nowhere to go, the data presented at trial indicated that Chicago

was able to place the vast majority of its age-outs when it attempted to find a place for them, see

infra ¶¶ 233–240, and although New York detained large percentages of its age-outs this was not

due to a risk of homelessness because there was “a rich array of organizational sponsors” in the

area to take them, see infra ¶ 211 (quoting Trial Tr. at 846:3–846:21 (Enriquez)).

122. Officer Hyde, SDDO in ICE’s New York City office, additionally suggested that lack

of a sponsor could make an age-out a danger to the community. Trial Tr. at 3139:4–7 (Hyde)

(explaining that she understands “harm to the community” to mean “someone, [with] no place to

go that could potential[ly] be a harm or risk to the community at large”). No evidence was

presented supporting this suggestion.

123. JFRMU condones and permits interpretations of the statute that view lack of a

sponsor as indicative of at least some of the three statutory factors, despite recognizing that it is

not the obvious meaning of the statute. Officer Sanchez, who is responsible for reviewing

documentation of age-out custody determinations in JFRMU, testified that while “danger to self

58

usually is some kind of mental illness issues,” it “could” also include lack of a sponsor because

an officer “could easily claim the fact that you had [no] address and you [are] going to be a

homeless person that could constitute a danger to self because you have no place to stay and it’s

cold outside.” Trial Tr. at 664:12–23 (Sanchez). When reviewing AORWs in advance of

depositions in 2018, however, Officer Sanchez e-mailed Officer Hyde in New York to say that

“[t]he factors for danger to self are self-harming or any other mental health issues” and to request

revision of an AORW on which an FOJC had indicated that an age-out was a danger to himself

because he had no sponsor. PX-284; see Trial Tr. at 662:20–666:11 (discussing PX-284).

New York City SDDO Linda Hyde testified at one point that JFRMU “told [the New

York office] that not having an address is not necessarily harm to self.” Trial Tr. at 3329:13–14.

The Court does not find the assertion that JFRMU articulated a general policy along these lines

to be credible. Officer Hyde gave this testimony owhile she was reviewing an email, PX-285, in

which Officer Sanchez asked that revisions be made to a particular AORW. See Trial Tr. at

3322:2–3331:22 (Hyde). From context, the Court found it sufficiently clear that Officer Hyde

did not mean to refer to this email when she said JFRMU had “told” the office not to consider

lack of an address or sponsor as signifying danger or harm to self because she said she did not

remember when this instruction came from JFRMU. Id. at 3329:18–20 (Hyde).

In general, Officer Hyde’s credibility was undermined by her evasive and combative

testimony. See Trial Tr. at 3252:16–20 (Hyde) (“The Court: . . . You need to answer his

questions.”), 3496:8–9 (Pan) (“The Court: . . . Officer Hyde was a very combative witness this

morning.”); see also, e.g., id. at 3238:6–3329:11 (Hyde) (refusing to respond to the question

59

asked even after the Court’s instruction to do so). 15 On the particular issue of when JFRMU

instructed her office not to view lack of a fixed address as indicative of harm to self, she claimed

both that she had already taken corrective actions and that she was closely monitoring the

situation going forward, id. at 3330:2–3331:1, but she was not able to say when the message

from JFRMU was received, id. at 3329:18–22, or when the corrective actions were taken, id. at

3331:2–3331:10. In light of Officer Sanchez’s testimony indicating that JFRMU did not have a

problem with viewing lack of a fixed address or sponsor as indicating a danger to self, the Court

thinks it unlikely that JFRMU communicated such instructions to the New York office,

otherwise than in Officer Sanchez’s email regarding the AORW revisions.

124. Because lack of a sponsor can be viewed by ICE as signifying that an age-out is either

a flight risk or, in some offices, a danger, an age-out’s lack of a sponsor carries determinative

weight in many age-out custody determinations. See, e.g., Trial Tr. at 3230:2–3231:17 (Hyde),

3394:7–12 (Hyde) (agreeing, in reference to an age-out, that “[t]he fact that he didn’t have a

sponsor meant that he was a danger to himself and a significant flight risk”); Galvez Dep. Desig.

at 291:12–292:20 (Officer Galvez would designate an age-out a flight risk based solely on the

lack of a sponsor); Pepple Dep. Desig. at 175:22–176:10 (testifying that the “vast majority” of

age-outs are recent entrants to the country who have limited community ties and are therefore

flight risks); see also Harper 5/2/19 Dep. Desig. at 28:20–29:8 (Chief Harper was not personally

aware of any case where ICE released an age-out without a sponsor); PX-213 at 2 (AORW

indicating “ORR was unable to provide a sponsor making subject a flight risk”).

15

Plaintiffs attacked Officer Hyde’s credibility in a footnote in their briefing, identifying

a number of points on which she was impeached. Pls.’ Br. at 180 n. 5. Not only did Defendants

not dispute anything in this footnote, but they did not even respond to it, Defs.’ Resp. at pp.333–

334, despite having responded to similar footnotes attacking the credibility of other witnesses,

see id. at 63–66 (Chief Harper), 392–94 (Officer Zanello).

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c. Risk Classification Assessment

125. FOJCs were required to run the RCA tool on each age-out they processed. Officer

Ravenell attested to this, as did many FOJCs, and Defendants do not dispute it. Ravenell Dep.

Desig. at 85:1–8; see, e.g., Hyde Dep. Desig. at 239:5–17; Barnes Dep. Desig. at 75:24–76:13;

Pepple Dep. Desig. at 28:12–29:25; Reardon Dep. Desig. at 77:15–17; Galvez Dep. Desig. at

88:1–6; Love Dep. Desig. at 34:8–35:5, 36:11–22; see also Defs.’ Resp. ¶¶ 99–106 (“ICE policy

is to require that the RCA tool be used for every adult custody decision, including age-outs.”).

126. In August 2017, the possible outputs given by the RCA tool regarding whether an

age-out should be detained were adjusted: whereas before it had recommended detention or

release, after the adjustment it would only either recommend detention or “say[] . . . something

like see your supervisor” or “discuss with supervisor.” Trial Tr. at 176:13–177:5 (Harper); see

also Gibney Dep. Desig. at 55:22–60:07 (stating that the tool was changed to recommend only

“detain” or “supervisor to determine”); id. at 62:6–7 (stating that the change came from ERO

leadership); see also Defs.’ Resp. ¶ 100 (failing to dispute that the tool was adjusted in this way).

Thus, after the adjustment, the RCA tool would never recommend that an age-out be released.

127. JFRMU provided no guidance to the field when the release option was eliminated,

and in fact continued to tell field officers to run the RCA on every age-out they process. At the

April 2019 training FOJCs were instructed they must run the RCA as the first step of age-out

processing. PX 203 at 10; Trial Tr. at 548:25–549:8 (Sanchez). See also PX-203 at 34 (same

graphic repeated toward the end of the presentation under the heading “Key Take-Aways”); PX-

199 at 27 (slide identifying failure to process an RCA recommendation as a potential “case

deficienc[y]”). Officer Ravenell, one of the presenters at the April 2019 training, did not recall

when he learned about the change to the RCA outputs when asked at his deposition in May 2019,

but said that it might have been in 2018. Ravenell Dep. Desig. at 86:5–17. Officer Sanchez,

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another presenter, testified that she did not recall anyone telling the FOJCs in April 2019 that the

RCA no longer recommended release. Trial Tr. at 684:13–685:4 (Sanchez).

Chief Harper testified that when she learned of the change to the RCA tool’s outputs

JFRMU “immediately started telling people, the FOJCs in the field, not to rely on the RCA.” Id.

at 342:9–13 (Harper). If Chief Harper meant to suggest that she began telling FOJCs not to rely

on the RCA at all, or to alert them to the change in the RCA tool’s outputs, the Court does not

find this assertion credible. 16 Defendants have not produced or identified any evidence of any

such communication from Chief Harper or JFRMU to the field. Defendants identify testimony

from officers who said they understood that the RCA output was only a recommendation to be

considered and testimony that the advisory nature of the RCA output was discussed on monthly

JFRMU calls. See Defs.’ Resp. ¶ 101. But communications stating that the RCA was only a

recommendation or only one among many factors to consider is not the same as communications

explaining to the field that the RCA would longer suggest release in any case. Communications

of this latter sort did not take place. At least two FOJCs learned about the changes to the RCA

outputs for the first time at their depositions. See, e.g., Barnes Dep. Desig. at 75:11–76:22;

Galvez Dep. Desig. 90:1–16. And Chief Harper in fact later testified that there was never any

official communication from ICE headquarters announcing the change to the RCA outputs and

that she only learned of the change from speaking with officers who run the RCA tool. Trial Tr.

at 3363:7–22 (Harper); see also Trial Tr. at 3363:20–22 (Hyde) (“The Court: Was there ever any

communication from headquarters saying, hey, we made this change? The Witness: No, sir.”).

16

If Chief Harper meant only that she began telling or reminding FOJCs not to rely solely

on the RCA—the Court makes no finding one way or the other on that.

62

128. Chief Harper also testified at one point that the RCA tool was not used with age-outs

because it no longer recommends release. Trial Tr. at 177:6–8 (Harper) (“Q: So now it says

either detain or something like see your supervisor, correct? A: Yes, which is why we don’t use

it with age-outs.”). This cannot be the case, because, even if the RCA recommendation was not

relied on, the tool was undoubtedly “used with” age-outs, as Defendants admit in their briefing.

Defs.’ Resp. ¶¶ 99–106. Chief Harper also testified otherwise, explaining near the end of trial

that the tool is run in every instance as a matter of policy. Trial Tr. at 4320:14–20 (Harper).

129. ICE continued to cite RCA recommendations in monthly reports to Congress as a

reason why age-outs were detained. In the first of ICE’s monthly reports to Congress

summarizing age-out custody decisions, “RCA recommends detention” was the reason for

detention for 46 of 93 age-outs, and no mention was made of the fact that the RCA tool, by that

point, no longer recommended release. PX-153 (first monthly report to Congress); Trial Tr. at

340:7–342:2 (discussing the reporting requirements).

130. The Court finds that ICE FOJCs were never told by JFRMU that the RCA tool would

no longer recommend releasing age-outs, and that FOJCs were—and remain—required to run

the tool on each age-out and to take its recommendation under consideration, though not to rely

only on the RCA tool in explaining a custody decision.

d. Sequential decision making

131. The “one-pager” flowchart—JFRMU’s only written guidance concerning Section

1232(c)(2)(B) outside of annual training—suggests that ICE officers should first determine

whether an age-out can be released or is a flight risk, danger to the community, or danger to

himself who must be detained, and second, consider the full range of alternatives to detention

only if the answer is the age-out can be released. The flowchart instructs in one box that “FOJCs

make a Custody Determination based on the totality of the circumstances” and in the next that

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“[i]f appropriate, FOJCs consider alternatives to detention programs based on Aged-Out UAC’s

need for supervision.” PX-135 at 2 (emphasis added); see also PX-203 at 14 (same flowchart in

2019 Training presentation). The flowchart thus clearly implies that in at least some

circumstances, it might not be appropriate to consider alternatives. Plaintiffs refer to this way of

structuring the age-out custody determination as “sequential decision-making,” and Defendants

do not appear to take issue with the terminology. Defs.’ Resp. ¶ 107.

132. Both Chief Harper and Officer Ravenell—another National Juvenile Coordinator in

JFRMU—understood the flowchart as accurately reflecting the sequential decisionmaking

process that FOJCs should follow when processing age-outs. Trial Tr. at 180:22–183:18;

Ravenell Dep. Desig. at 149:5–152:24. Specifically, they both testified that, as reflected in the

flowchart, FOJCs should first consider whether an age out is a danger to self, danger to the

community, and that considering alternatives to detention “[i]f appropriate” meant considering

them if the age-out was not determined to be a flight risk, danger to self, or danger to others at

that previous step. Trial Tr. at 181:7–183:18; Ravenell Dep. Desig. at 151:13–152:24.

133. Relatedly, as Chief Harper testified, the ATD program (which covers a narrower

range of options than the broader “alternatives to detention” mentioned in the statute, see supra

¶ 44 n.7) is “used as [a] mitigation factor,” and generally only considered as an option for age-

outs whom ICE has already decided to release. Trial Tr. at 148:7–149:9.

3. Lack of Guidance

134. In a number of areas relating to age-out custody determinations and documentation,

JFRMU (a) provides no training to FOJCs and SDDOs; (b) has no policy; and / or (c) has a

policy that the issue is left to the unbridled discretion of individual FOJCs and SDDOs.

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a. Age-Out Review Worksheets

135. FOJCs never received any formalized training on the October 2018 version of the

AORW, which was in use between October 2018 and August 2019. Trial Tr. at 420:5–7

(Harper); see supra ¶¶ 51, 58. FOJCs testified that they received no guidance or training aside

from the memo introducing the AORW and some discussion on monthly phone calls. Munguia

Dep. Desig. at 97:22–98:2; Barnes Dep. Desig. at 69:2–71:12; Black Dep. Desig. at 52:6–17;

Trial Tr. at 2650:11–12 (Black); Trial Tr. at 2829:24–2830:1 (Munguia) (“[T]hey told us to

review it; and that if we had any questions, we were supposed to call them.”). Defendants have

not identified any guidance concerning the October 2018 AORW other than the email

introducing the AORW and whatever was conveyed to the field during monthly JFRMU phone

calls. Trial Tr. at 224:6–9 (Harper) (“I don’t know if I issued official policy guidance, but I

know we began to discuss the age-out process and the documentation and VAWA on the

monthly phone calls”); see Defs.’ Resp. ¶ 183.

136. The April 2019 version of the AORW, which FOJCs trained on during the April 2019

training in San Antonio, was never used in the field. Supra ¶ 59 (citing Trial Tr. at 419:24–420:3

(Harper); id. at 546:16–547:2 (Sanchez)).

137. As of the time of trial, the only additional written guidance FOJCs received

concerning the August 2019 revised AORW was the two-page email introducing the revised

worksheet, see DX-6, and guidance that might have been given during monthly phone calls or on

a case-by-case basis in response to an FOJC affirmatively reaching out to JFRMU with

questions. Trial Tr. at 534:10–535:9 (Sanchez); see also Trial Tr. at 2370:12–17 (Hormiga) (“I

don’t believe we ever had any training on any worksheets.”).

138. Defendants argue that the August 2019 guidance introducing the revised AORW

“was discussed on several JFRMU monthly phone calls,” but they cite only to testimony by

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Chief Harper stating in general terms what the monthly calls entail. Defs.’ Resp. ¶ 186 (citing

Trial Tr. at 151:3–14). Defendants also argue more generally that during monthly phone calls

“JFRMU provided training as to what individual items on the worksheets mean or how they

should be completed.” Defs.’ Resp. ¶ 187. The testimony they cite again provides no detail

about any particular instructions given or topics covered during the monthly phone calls, and

instead consists only of general assertions about what kind of guidance is available during these

phone calls. See id. (citing Trial Tr. at 46:24–47:13 (Harper), 387:4–25 (Harper), 420:8–13

(Harper), 534:10–13 (Sanchez)). Thus, there was no evidence presented that ICE ever provided

guidance on critical issues relating to the AORWs, including, for example, what constituted an

“other credible threat” in Item 8; whether one of the potential reasons in Item 8 had to be

checked whenever an age-out was designated a flight risk or danger; what it meant for a sponsor

to be “available”; what it meant to “evaluate” a discretionary release action like ATD or Bond; or

what kind of justification an SDDO ought to provide for the ultimate decision.

b. Detention Alternatives

139. FOJCs are not formally trained on placing age-outs in ICE’s ATD program.

Defendants dispute this finding, arguing that Plaintiffs highlight the testimony of only three

FOJCs and that some FOJCs did place age-outs on ATD. See Defs.’ Resp. ¶ 188 (citing

testimony by Chief Harper). By the Court’s count, the numbers are slightly worse for the

Defendants. At least five FOJCs testified that they did not receive such training. See Hyde Dep.

Desig. at 32:20–22; Barnes Dep. Desig. at 40:6–8; Hormiga Dep. Desig. at 83:11–18; Trial Tr. at

3715:14–17 (Irizarry); see also Trial Tr. at 2944:10–13 (Venegas) (indicating no written

guidance on how to place an age-out on ankle bracelet monitoring). Three more testified that

they understood the ATD program not to be an option for age-outs, at least in their AOR. Zanello

Dep. Desig. at 117:6–9; Pepple Dep. Desig. at 178:3–4 (“ATD is not additionally used for age-

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out cases in this AOR [Chicago].”); Barnes Dep. Desig. at 40:16–22; see also Black Dep. Desig.

at 180:23–181:9 (unaware that ankle bracelet monitoring, specifically, was an option); but see

Trial Tr. 2515:13–15 (Black) (testifying at trial that she had released an age-out on an ankle

bracelet, presumably at some point between her deposition and the trial).

The fact that some FOJCs managed to place age-outs in the ATD program (in many cases

only after this litigation was ongoing for a year or more) does not establish that JFRMU trained

them on how to do so. While ATD is mentioned as an option in certain training materials,

including the “one-pager” flowchart, PX-135, and the FOJC handbook, DX-4 at 48, Defendants

have identified no written evidence or testimony suggesting that JFRMU ever provided any

formal or informal guidance on how FOJCs could actually go about putting an age-out on ATD,

or on what circumstances might make doing so appropriate. To the contrary, as the above-

referenced testimony demonstrates, some FOJCs were confused about the use of the ATD

program with age-outs. Chief Harper agreed that “field officers consider age-outs for

participation in ICE’s alternative detention program only rarely, if at all.” Trial Tr. at 149:6–9

(Harper). Further, Defendants do not dispute that “several FOJCs were not even aware the ATD

program was available to Age-Outs” or “ICE does not promote or require consideration of ATD

when making custody determinations for Age-Outs.” See Defs.’ Resp. ¶¶ 152–53; see also Trial

Tr. at 149:18–22 (Harper) (“[T]here has also been significant rotation of people into the FOJC

position, and [the availability of ATD for age-outs] may not have been relayed to them.”).

140. To the extent FOJCs ever recommended placing age-outs in the ATD program—and

this rarely happened, see infra ¶ 164—they only did so as part of the flawed sequential

decisionmaking process that misunderstands how Section 1232(c)(2)(B) ought to be applied.

Rather than treat the ATD program as an alternative to detention (lowercase), they treated it as

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an alternative to releasing an age-out on his or her own recognizance. Chief Harper testified that

“the decision to put somebody on ATD is made after you release somebody” and agreed that

“[FOJCs] make the decision whether you’re going to detain first.” Trial Tr. at 148:12–25; id.at

149:1–5 (“Q: And only if you decide you’re not going to detain and you’re going to release do

you get to the question of looking at alternatives to detention such as release with ankle-bracelet

monitoring, right? A: That is how the FOJCs do it.”). Officer Ravenell agreed that this

decisionmaking structure, reflected in the “one-pager” flowchart, was the process FOJCs should

follow. Ravenell Dep. Desig. at 149:5–152:24. This view of the program turns VAWA’s

“continuum of alternatives” on its head. 8 U.S.C. § 1232(c)(2)(B).

141. FOJCs are not formally trained on releasing age-outs subject to an ICE Bond.

Defendants “do not dispute that there has not been any written guidance on bond,” Defs.’ Resp.

¶ 189, but suggest that there has been some training during monthly phone calls. Chief Harper

testified that ICE bonds had “been discussed at length,” Trial Tr. at 160:9, but she did not say

when or where, and she was unable to identify any document other than the AORW itself in

which “field officers were advised . . . concerning the use of ICE bonds with respect to age-

outs.” Trial Tr. at 160:10–23 (Harper); see also id. at 160:8–9 (Harper) (“I don’t know if I’ve

provided written guidance to them.”). In disputing this fact, Defendants cite testimony from

Chief Harper and Officer Sanchez in which they described the wide breadth of topics discussed

on JFRMU’s monthly phone calls to the field, but none of this testimony makes any reference to

ICE Bonds, see Defs.’ Resp. ¶ 189 (citing Trial Tr. at 46:24–47:13 (Harper), 387:4–25 (Harper),

420:8–13 (Harper), 534:10–13 (Sanchez)), and Chief Harper did not mention the monthly calls

when asked about training on ICE bonds, Trial Tr. at 159:12–160:14. Even if the Court credits

Defendants’ weakly supported assertion that ICE bonds were discussed on monthly JFRMU calls

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at some point, the fact remains that no formal training on the topic took place, and the evidence

indicates that ICE bonds are also rarely used with age-outs, see infra ¶ 168.

142. In one of the few instances where ICE Bonds were issued, they were issued by the

Miami field office not as part of an alternative to detention intended to mitigate risk of flight, but

instead $5,000 bonds were set as a prerequisite for release from ICE detention. Trial Tr. at

1313:22–1315:15 (Lehner); id. at 3935:10–16 (Reardon) (reviewing an AORW reflecting that

Officer Reardon set a $5,000 ICE bond); id. at 3966:15–3967:6 (same, for another AORW).

This practice is, again, the opposite of what the statute requires as it treats what could be a risk-

mitigating alternative to detention as only available if the age-out is already otherwise on track

for release.

143. FOJCs are not trained or given guidance on releasing age-outs to shelters outside their

AOR. See Trial Tr. at 3723:20–25 (Irizarry), 3867:14–3868:12 (Zanello).

c. Statutory Risk Factors

144. JFRMU does not train FOJCs on the factors that Section 1232(c)(2)(B) requires ICE

to take into account when making age-out custody determinations. Put another way, FOJCs are

not trained on what makes an age-out a flight risk, a danger to themselves, or a danger to the

community. See, e.g., Trial Tr. at 424:13–425:1 (Harper) (no formal JFRMU training on any of

these three factors); Id. at 666:16–22 (Sanchez) (“Q: So whatever the consideration is, just so

[long as] you put it on the paper and tie it to one of the statutory factors, that’s sufficient? A: No,

I’m not saying it’s sufficient, but if you could articulate in a clear and conscious way that when

you read it you can understand what you are talking about, then you can go ahead and do it.”);

Hyde Dep. Desig. at 124:1–9 (flight risk, danger to community), 124:17–20 (danger to self);

Trial Tr. at 3363:23–3364:19 (Hyde) (all three factors); Black Dep. Desig. at 115:10–17 (flight

risk), 115:18–116:5 (danger to self or community); Trial Tr. at 2653:11–2654:16 (Black) (same);

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Hormiga Dep. Desig. at 191:15–192:5 (flight risk, danger to community). Defendants argue that

FOJCs are law enforcement officers who do not need specialized training on the meaning of

these terms, but they do not dispute that FOJCs do not receive any training as to their meaning.

Defs.’ Resp. ¶ 196.

d. Policies of Discretion

145. JFRMU defers to the discretion of FOJCs and SDDOs with regard to the outcomes of

age-out custody determinations. Trial Tr. (Harper) at 54:2–55:2, 56:13–15, 64:3–7; Sanchez

Dep. Des. at 18:1–16 (“[JFRMU] only look[s] at the documentation because the decision is

solely up to the field.”). Chief Harper did not believe she had ever asked a field office or field

officer that a custody determination needed to be changed, was incorrect, or not compliant with

Section 1232(c)(2)(B). Trial Tr. (Harper) at 55:14–56:12; see also Trial Tr. at 513:1–14

(Sanchez) (agreeing that JFRMU reviews only the documentation, not the substance of custody

determinations). At the 2019 annual training, FOJCs were instructed that “there is no

right/wrong answer, but you should properly document your decision.” PX-54 at 22.

Defendants explain this as a matter of ICE chain of command and hierarchy, but do not dispute

that the substance of age-out custody determinations is not reviewed by JFRMU. See Defs.’

Resp. ¶¶ 208–09.

146. It is up to the discretion of the field officer whether to attempt to contact an ORR

shelter in advance of an age-out’s 18th birthday to ask for a post-18 plan. Trial Tr. (Harper) at

86:14–23, 92:1–19; see also Ravenell Dep. Desig. at 41:12–18. 17

17

The parties dispute whether Chief Harper’s testimony on this point was inconsistent.

See Defs.’ Resp. at pp. 64–65. At trial she was asked whether “ICE encourage[s] its FOJCs to

affirmatively reach out” to ORR for a post-18 plan, and initially responded affirmatively. Trial

Tr. (Harper) at 85:21–24. Plaintiffs’ counsel then confronted her with testimony from her

deposition in which she was asked “Should the FOJC contact the shelter in advance to request --

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147. JFRMU has no written guidance advising FOJCs to reach out to ORR about potential

sponsors to whom ORR did not release the age-out, Ravenell Dep. Desig. at 35:5–12, and no

written guidance concerning whether FOJCs should attempt to identify or verify sponsors on

their own, id. at 41:12–42:22, including by reviewing information available on the age-out’s

form I-213 18, id. at 49:11–50:14.

148. ICE leaves it entirely up to the discretion of the field officer whether to interview or

speak with an age-out on or before the age-out’s eighteenth birthday, either in order to ask about

or attempt to identify potential sponsors or for any other reason. Trial Tr. at 93:22–94:15

(Harper); Ravenell Dep. Des. at 46:18–47:1.

149. It is likewise entirely up to the field officer’s discretion whether to contact a potential

sponsor identified in a post-18 plan, Trial Tr. (Harper) at 88:7–19, 93:4–10, to try to identify a

sponsor if none is provided or if a proposed sponsor is deemed unsuitable, id. at 93:13–16,

190:12–18, or to acknowledge, respond to, or follow up on communications received from

in advance of the child’s 18th birthday to request the post-18 plan” and responded “I wouldn’t

say they should do that. The burden for the post-18 plans falls on ORR.” Id. at 86:2–13 (citing

Harper 5/2/2019 Dep. Desig. at 12:14–18). Asked again whether “ICE encourage[s] its FOJCS

to affirmatively reach out, Chief Harper responded in the negative. Id. at 86:14–17. Defendants

note, correctly, that the question Chief Harper was asked at trial was not the same as the question

Plaintiffs’ counsel read from her deposition testimony. Defs.’ Resp. at p. 65. At the same

deposition, however, the question immediately following the one Plaintiffs’ counsel confronted

Chief Harper with at trial was the same question from trial regarding whether “ICE encourage[s]

its FOJCs to affirmatively reach out,” and Chief Harper responded “ICE doesn’t make a

recommendation either way.” Harper 5/2/2019 Dep. Desig. at 12:19–13:1. So, while Chief

Harper was not confronted with the most precise excerpt from her deposition, she did change her

testimony at trial to become more consistent with her deposition testimony—and more consistent

with Officer Ravenell’s testimony.

18

A form I-213 records a narrative of ICE’s experience with a UAC or other alien, and

begins by explaining the circumstances in which they were encountered, whether by ICE or by

Customs and Border Patrol. It includes information such as where a UAC was headed and who,

if anyone, the UAC called on the phone when he or she was apprehended. See Ravenell Dep.

Desig. at 48:15–49:23; Trial Tr. at 969:21–970:5 (Hyde); Pepple Dep. Desig. at 33:8–20.

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attorneys or advocates for age-outs that request release or propose sponsors, id. at 88:20–91:25 19;

Ravenell Dep. Desig. at 37:24–38:6; see also id. at 36:15–19 (agreeing that ICE has no

requirements “with respect to what an FOJC should do when someone provides him or her with

the name of a potential sponsor”).

150. ICE generally requires that a proposed sponsor be deemed “viable” before ICE will

release an age-out to that sponsor. Trial Tr. at 130:6–11 (Harper); see also PX-334A (summary

of AORWs indicating that “no viable sponsor” was identified as the reason for detention for over

100 age-outs between October 2018 and May 2019).

151. JFRMU and ICE have no “set or written requirements” for what makes a proposed

sponsor viable or suitable; viability is left up to the discretion of individual FOCJs and SDDOs.

Trial Tr. at 130:23–131:11 (Harper); Harper 5/2/2019 Dep. Desig. at 22:1–23:3; see also

Ravenell Dep. Desig. at 44:17–45:4 (confirming the lack of written guidance on steps FOJCs

should take to identify or vet sponsors, and that this topic was not addressed at the April 2019

training); id. at 57:11–14 (“ICE is not responsible for finding sponsors, so . . . we wouldn’t have

any policy, procedures, in order to determine whether [a sponsor] is viable or not). After

eighteen days of trial, it is still unclear to the Court how ICE defines a “viable sponsor.”

152. It is “up to the discretion of individual officers and field officers whether to use

ATD,” and JFRMU does not monitor the extent to which they do so. Trial Tr. at 157:22–158:2

(Harper).

19

During questioning on this third point, Chief Harper was confronted with testimony

from her deposition and Plaintiffs argue that she changed her testimony at trial in response. See

Pls.’ Br at 35 n.2. Defendants argue the testimony was not inconsistent. Defs.’ Resp. at p. 65.

The Court agrees with Defendants with regard to this particular line of questioning. While Chief

Harper’s answers at trial were more nuanced than those she gave at her deposition, they were not

so different as to damage her credibility on this issue.

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D. Outcomes at the Field Office Level

1. Exercises of Discretion

a. Sponsors

153. Officers in JFRMU take the position that ORR, not ICE, is responsible for identifying

potential sponsors. Trial Tr. at 74:3–20, 76:15–77:3 (Harper); Harper 5/2/19 Dep. Desig. at

43:7–17 (agreeing that “the officer’s only obligation is just to consider what somebody else

provides” and that “ORR is responsible for identifying potential sponsors”); Trial Tr. at 573:7–9

(Sanchez); Ravenell Dep. Desig. at 36:15–37:9; see also PX-270 at 1 (Chief Harper email to

Miami field office stating “VAWA . . . doesn’t convey an affirmative responsibility onto ICE to

find group homes or sponsors”).

154. ORR has different and higher standards that it applies when considering potential

sponsors for UAC than ICE has when it considers sponsors for adults. Before HHS and ORR

can release a UAC to a proposed sponsor they are required by Section 1232(c)(3)(A) to “make[]

a determination that the proposed custodian is capable of providing for the child’s physical and

mental well-being.” 8 U.S.C. § 1232(c)(3)(A). This inquiry must “at a minimum, include

verification of the custodian’s identity and relationship to the child, if any, as well as an

independent finding that the individual has not engaged in any activity that would indicate a

potential risk to the child.” Id.; see also id. § 1232(c)(3)(B) (requiring more extensive home

studies for proposed sponsors of children with certain particular vulnerabilities or traumatic

histories). Nothing in the TVPRA or VAWA sets similar requirements for ICE. Officer

Ravenell explained that this is because immigrants who have aged out of ORR custody are, at

that point, adults. Ravenell Dep. Desig. at 58:10–18 (“Q: And to your knowledge, ICE doesn’t

have requirements with respect to the suitability of sponsors for adults, correct? A: If you’re an

adult, you’re an adult . . . [W]e don’t go out looking for sponsors, we don’t go out checking to

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see what type of individuals they are. We don’t have to do suitability checks for sponsors.”); id.

at 58:22–24 (“If you’re an adult, you’re 18, it’s not ICE’s responsibility to do suitability checks

for where you’re going to live.”).

155. As discussed, JFRMU takes the position that it is up to individual field officers

whether to communicate with ORR regarding potential sponsors for age-outs, supra ¶¶ 146–47,

and that it is up to individual officers whether to seek out or attempt to identify potential

sponsors, supra ¶¶ 148–49, or to request a post-18 plan, supra ¶ 146.

156. Defendants have intimated, if not directly argued, that differences in detention

rates between field offices may be attributable at least in part to whether post-18 plans are

generally received by FOJCs in those field offices that detain at higher rates. Compare, e.g.,

Defs.’ Br. FF ¶¶ 263–65 (explaining that the San Antonio field office generally received post-18

plans a sufficient amount of time in advance of the age-out’s eighteenth birthday), with id.

¶¶ 321–23 (explaining that this is not the case for the Houston office); id. ¶ 456 (explaining that

the New York City office “would not always receive Post-18 Plans”); and id. ¶ 535 (explaining

that the Miami office did not reliably receive post-18 plans before a certain point). Plaintiffs

dispute Defendants’ proposed findings regarding the Houston and Miami offices. See Defs.’

Resp. ¶¶ 321–23, 535; see also id. ¶ 456 (conceding that Officer Hyde so testified but not

conceding the truth of the matter). Even assuming, however, that offices detaining at higher

rates were those that did not receive post-18 plans, this would only show a correlation, not a

causal effect. Cf. Trial Tr. at 2048:23–2049:25 (Lenzo) (Defendants’ counsel making the point

that correlation does not equal causation).

Further, even if there were a causal relation between high detention rates and a lack of

post-18 plans, it is far from clear which would be more likely to cause the other. For example,

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during a time period when El Paso was detaining most of its age-outs, the SDDO in that office

had limited what kinds of materials ICE would accept from legal services and required hard copy

delivery of these materials rather than submission via email. See infra ¶¶ 248, 250. At least one

legal services provider found fulfilling these onerous requirements “pretty time-intensive” and

“ultimately . . . made a decision that [they] just couldn’t afford the time to submit packets

anymore” given that even the strongest cases for release “continued to get denied.” Trial Tr. at

1509:25–1510:10 (Escontrias). Officer Pepple from the Chicago office testified that he began

receiving more post-18 plans when he started releasing more age-outs and reaching out to ORR

and ORR contractors for names of potential sponsors. See infra ¶ 238. It stands to reason that

ORR and third parties may have seen no reason to waste time submitting post-18 plans to offices

that would detain all their age-outs regardless. If a causal relationship exists between submission

of post-18 plans and detention rates, it strikes the Court that this causal relationship may

plausibly run in either direction.

157. In many instances, ICE does not release an age-out to a proposed sponsor because the

sponsor fails to meet criteria set by ORR for release of a UAC—as opposed to an age-out—from

ICE custody to a sponsor. For instance, at one time, ORR required that sponsors and members of

sponsors’ households be fingerprinted before an age-out could be released to them. Trial Tr. at

143:18–146:4 (Harper) (describing a memorandum of understanding between ICE and ORR

which, from roughly April 2018 through December 2018, had required fingerprinting all

members of a sponsor’s household before a UAC could be released); id. at 399:10–23 (Harper)

(describing types of people that ORR no longer requires fingerprints from, including “[p]eople

that claim to be adult siblings or grandparents” and “other adult household members”); see also

id. at 878:3–879:23 (Enriquez) (third-party legal services provider describing his experience with

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ORR fingerprinting requirements); id. at 2629:9–25 (Black) (testifying to her awareness that

ORR sometimes requires fingerprints but that ICE does not have a fingerprinting requirement);

id. at 3266:13–23 (Hyde).

A number of age-outs were detained by ICE because the age-out did not have a “viable

sponsor” when ORR did not manage to complete its fingerprinting check on a potential sponsor,

despite ICE not having such a requirement. See, e.g., Reardon Dep. Desig. at 216:10–217:24;

PX-211 at 8 (age-out memo from HHS to ICE indicating the case manager “was unable to have

[a] new household member fingerprinted on time before [UAC] aged out”); Trial Tr. at 3791:17–

20 (Zanello) (“[I]f ORR had already vetted a potential sponsor, we didn’t need the specifics, we

would just need to know yes, that sponsor works, no, that sponsor doesn’t, so we can move on.”);

Zanello Dep. Desig. at 212:21–214:1 (discussing PX-211); Hyde Dep. Desig. at 287:1–288:21

(discussing PX-74); id. at 289:8–290:9 (same); Galvez Dep. Desig. at 314:15–315:8, 318:6–

320:1 (referencing PX-40); see also, e.g., Black Dep. Desig. at 159:7–161:21 (reviewing PX-16

at 55, 60); Reardon Dep. Desig. at 111:24–112:1 (“Q: So the mother was the proposed sponsor

and the only holdup was fingerprinting of her? A: Yes.”); Trial Tr. at 3966:11–14 (Reardon) (“Q:

So your understanding is that for a sponsor to be available within the meaning of item 12 [on the

AORW], ORR has to have completed their vetting or approved that sponsor, correct? A: Yes.”);

PX-335.16133–16135 (AORW from Los Angeles field officer recommending detention and

notin

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