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Saravia v. Sessions

United States District Court, N.D. California

November 20, 2017

ILSA SARAVIA, et al., Petitioners/Plaintiffs,
JEFFERSON B. SESSIONS, et al., Respondents/Defendants.



         The federal government sometimes releases noncitizens on bond or parole while their removal proceedings are pending. Release reflects a determination by the government that the noncitizen is not a danger to the community or a flight risk. Once a noncitizen has been released, the law prohibits federal agents from rearresting him merely because he is subject to removal proceedings. Rather, the federal agents must be able to present evidence of materially changed circumstances - namely, evidence that the noncitizen is in fact dangerous or has become a flight risk, or is now subject to a final order of removal. And if the noncitizen disputes the notion that changed circumstances justify his rearrest, he is entitled to a prompt hearing before an immigration judge. These protections against the erroneous deprivation of liberty arose out of a 1981 decision by the Board of Immigration Appeals and are embodied in the current practices of the Department of Homeland Security.

         A small group of similarly situated noncitizens, however, has not been receiving comparable protections when rearrested. Specifically, some noncitizens enter the country as unaccompanied minors - that is, children with no parent or guardian available to care for them. Under existing law, the federal government conducts an assessment of the minor, and either keeps him in custody while his removal proceedings are pending or places him with a suitable "sponsor" in the United States. The sponsor is often a family member, and the minor's placement with the sponsor reflects a determination by the federal government that the minor is neither dangerous nor a flight risk (and that such a placement is in the child's best interest).

         Recently, federal agents have been arresting noncitizens - including some minors who were previously placed with sponsors - based on allegations of gang involvement. Instead of giving those minors a prompt hearing to dispute that their detention is now justified based on changed circumstances, the government has been transferring them to different parts of the country for placement in high-security facilities for an indefinite period.

         The issue in this case is not whether federal agents may arrest and detain undocumented minors who truly are members of dangerous criminal gangs. If federal agents have probable cause to believe that a minor is a member of a criminal gang, certainly that could be a "changed circumstance" that would justify detention, even if the government had previously determined that the minor was not dangerous. But there is no reason to deny these minors protections that noncitizens typically get after having been released on bond or parole. The minors and their sponsors have the right to participate in a prompt hearing before an immigration judge in which the government's evidence of changed circumstances is put to the test. By shipping the minors across the country for indefinite detention in a high-security facility before providing that hearing, the government has violated their due process rights.

         Accordingly, for any noncitizen minor previously placed with a sponsor who has been arrested on allegations of gang activity, the government is ordered to provide a hearing before an immigration judge by no later than November 29, 2017, to allow the minor and his sponsor to contest the government's evidence of changed circumstances. The government must restore the minor to the sponsor's custody if such evidence is lacking. Going forward, at least while this lawsuit is pending, the government is ordered to provide such a hearing within seven days of arrest of any such minor.

         The plaintiffs have asked for further relief, and they have asserted additional legal theories. Further relief may be warranted, but because the minors are clearly entitled to at least this due process protection, and because their need for that protection is time-sensitive, a preliminary injunction on this issue is warranted at this time.


         In the Spring of 2017, agents from Immigration and Customs Enforcement ("ICE"), which is a division of the Department of Homeland Security ("DHS"), executed "Operation Matador" in two New York counties. Operation Matador targeted undocumented immigrants in Suffolk and Nassau Counties who had alleged connections to criminal gangs. After receiving allegations of gang affiliation from local law enforcement officers, ICE agents proceeded to arrest the alleged gang members, relying on ICE's authority under federal law to arrest noncitizens who are subject to removal from the country. See Tr. of Oct. 27, 2017 Hearing at 23-28, Dkt. No. 98.

         Some of the people arrested were minors. And ICE decided, after making the arrests, that some of the minors fell within a certain legal category: "unaccompanied" minors. Under federal law, an unaccompanied minor is a child who comes across the border without any parent or legal guardian in the United States available to take care of them. 6 U.S.C. § 279(g)(2). When DHS takes custody of an unaccompanied minor, federal law requires that agency to transfer custody of the minor to the Office of Refugee Resettlement ("ORR"), a division within a different cabinet-level agency, namely, the Department of Health and Human Services ("HHS"). The statutory purpose behind this transfer requirement is to provide special protections for unaccompanied minors, a particularly vulnerable group. In particular, Congress created this framework to address the concern that unaccompanied minors may be victims of human trafficking operations or other criminal activity, concluding that HHS was better equipped to assess and attend to the needs of these minors than DHS. The primary federal statute that confers this and other protections on unaccompanied minors is called the Trafficking Victims Protection Reauthorization Act, or TVPRA. Pub. L. No. 110-457, § 235, 122 Stat. 5044, 5074-82 (2008) (codified at 8 U.S.C. § 1232); see also 6 U.S.C. § 279.

         When an unaccompanied minor is taken into custody by DHS and then ORR, typically proceedings begin before an immigration judge (under the auspices of the Department of Justice) to decide whether the minor should be removed from the country. The TVPRA requires ORR to decide where to place the minor while the removal proceedings are pending. The statute requires ORR to place the unaccompanied minor "in the least restrictive setting that is in the best interest of the child, " considering, among other things, whether the minor is dangerous. 8 U.S.C. § 1232(c)(2)(A). ORR may release the minor to a "sponsor" who already lives in the country but was not with the minor when DHS picked him up - often a parent or relative - so long as the minor is not dangerous and the placement is otherwise suitable. If placement with a sponsor is not appropriate (either because there is no sponsor, or because the proposed sponsor is unsuitable, or because the minor is dangerous), ORR will detain the minor in a facility pending resolution of the removal proceedings. Id.; see also 6 U.S.C. § 279(b)(2)(B).

         The facilities used by ORR have three security levels. The least restrictive level is a shelter facility, the medium level is a staff-secure facility, and the most restrictive level is a secure facility. The secure facility is akin to a local juvenile hall - in fact, ORR uses local juvenile halls to house the most dangerous unaccompanied minors, pursuant to contracts with local governments. See, e.g., Supp. Decl. of Julia Mass. (June 23, 2017), Ex. 2 at 1-3, Dkt. No. 19-3; Decl. of Ashley Corkery ("Corkery Decl."), Ex. B at 77, Dkt. No. 61-3. In addition to local governments, ORR contracts with private entities (typically nonprofits) to take custody of unaccompanied minors. See, e.g., Corkery Decl., Ex. B at 77; Esquivel Mot. To Dismiss at 4 n.2, Dkt. No. 58.

         But under Operation Matador, the minors that ICE arrested and classified as "unaccompanied" minors were not your typical unaccompanied minors. That is, they were not people who just came across the border, with no parent or guardian immediately available to care for them. Rather, these minors had come across the border previously - often years before - as unaccompanied minors, and had already once been placed into the custody of ORR. As required by the TVPRA, ORR conducted an assessment of these unaccompanied minors shortly after they arrived, to determine where they should be placed while the federal government decided whether to remove them from the country. And it appears that for each minor, ORR made the determination that the minors should be placed with sponsors rather than detained. Placement was often with parents who were eventually identified as already living in the country. In other words, the federal government had already determined, some time previously, that the minors arrested in Operation Matador were not dangerous.[1]

         Three of those minors are now part of this lawsuit, although initially it was only one. The first minor, who goes by the initials A.H., came into the country from Honduras in 2015, unaccompanied by a parent or guardian. Decl. of A.H. (June 22, 2017) at 2, Dkt. No. 8. He fled an abusive father, and shortly after arriving in the United States he was placed in an ORR facility in New York. Approximately one month later, ORR released A.H. to live with his mother in Long Island, where he remained until this past June. Id. at 2-3. A.H. had two encounters with the criminal justice system during this time. The first was an incident with a fellow student at his high school that resulted in charges of menacing and possession of a weapon, both of which were adjourned in contemplation of dismissal after A.H. completed a pre-plea community service program. The second was a low-level charge for possession of marijuana, which also was adjourned in contemplation of dismissal. Decl. of Stephanie Gibbs (June 22, 2017) at 4-5, Dkt. No. 10. According to A.H., a friend with whom he was arrested admitted to having been part of a gang in the past, but A.H. denied any involvement with gangs. Decl. of A.H. (June 22, 2017) at 3.

         On June 12, A.H. was arrested by two plainclothes ICE officers on the street near his house. A.H. was placed in a cell in Central Islip, New York, and then in a cell in Manhattan. Around 3:30 a.m. the next morning, A.H. was put on a flight to California. He was then taken to the Yolo County Juvenile Detention Facility in Woodland, California. Decl. of A.H. (June 22, 2017) at 3-5. The detention facility where A.H. was sent is run by Yolo County, in the Eastern District of California, pursuant to a contract with ORR. Supp. Decl. of Julia Mass. (June 23, 2017), Ex. 2 at 1-3. Prior to his transfer, DHS reported to ORR that A.H. was gang affiliated and provided a criminal history summary. This summary incorrectly reported the date for A.H.'s 2016 menacing and weapons charges, stating they had occurred a few weeks prior to his arrest by ICE. The summary did not acknowledge that all of A.H.'s charges had been adjourned in contemplation of dismissal. See Corkery Decl., Ex. B at 12:24-15:25, 47:14-49:6, 52:20-53:16; Corkery Decl., Ex. N, Dkt. No. 68-3; Decl. of Daniel Loechner at 2, Dkt. No. 15-1.[2]

         On June 22, 2017, while he was in the Yolo County Juvenile Detention Facility, A.H. filed this lawsuit, which was captioned as a "Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief." He brought the lawsuit against a variety of federal defendants, including the Attorney General, the Secretary of HHS, and the Director of ORR. The lawsuit also named as a defendant ORR Federal Field Specialist Elicia Smith, who is located in San Francisco and is responsible for ensuring that the Yolo County Juvenile Detention Facility performs its obligations under the contract with ORR. Finally, the lawsuit named Brent Cardall, who, as Chief Probation Officer for Yolo County, is in charge of day-to-day operations at the Detention Facility.[3]

         As the caption implies, the lawsuit sought two different types of relief. First, it sought a writ of habeas corpus. The purpose of a petition for a writ of habeas corpus is typically to obtain release from custody, based on a wrongful conviction or some other unlawful detention. Second, A.H.'s lawsuit included a request for declaratory and injunctive relief. That is, he sought a judicial declaration that his detention by the federal government was unlawful, and an injunction requiring the government to either release him or give him a prompt hearing to allow him to challenge the determination that he was dangerous and needed to be locked in a secure facility. He asserted several different legal theories, including under the Due Process Clause of the Fifth Amendment and the TVPRA. He also complained that ORR's conduct was preventing him from participating in his ongoing immigration proceedings in New York. A.H. appeared to assert each of these legal theories in connection with his pursuit of habeas relief as well as his pursuit declaratory and injunctive relief, although the lawsuit was unclear on this point.[4]

         Along with his lawsuit, A.H. filed an application for a temporary restraining order ("TRO") in which he asked the Court to order ORR to release him, or at least to require that ORR give him an opportunity to contest the allegations that he was gang-affiliated or otherwise dangerous enough to warrant placement in a secure facility. The Court held a hearing on a very tight timeframe and ruled on the TRO application from the bench. The Court concluded that A.H. had raised serious questions about whether the government had violated the TVPRA by failing to give him an opportunity to demonstrate that ORR had not placed him in the least restrictive setting appropriate for his circumstances, and ordered ORR to promptly provide him that opportunity to be heard. Tr. of June 29, 2017 Hearing at 86-94, Dkt. No. 28. In response to the presentation by A.H. and his lawyers regarding the alleged gang affiliation, ORR determined that A.H. should be moved from the secure facility in Yolo County to a staff-secure facility (which provides the middle level of security) in New York. See Notice of Decision, Ex. A at 5, Dkt. No. 27-1; Decl. of James De La Cruz (Sept. 14, 2017) at 1, Dkt. No. 54-3. Counsel for A.H. informed the Court at a case management conference that, in light of this transfer to a less restrictive facility much closer to home and to his ongoing immigration proceedings, A.H. would not be seeking further emergency relief by way of the TRO application.

         On August 11, an amended lawsuit was filed. The amended lawsuit is again a combined petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief. But it adds two other minors in ORR custody - F.E. and J.G. - both of whom had previously been released by ORR to family members under sponsorship agreements. ICE arrested F.E. in Suffolk County on June 16, presumably as part of Operation Matador, and transferred him to a secure facility, Shenandoah Valley Juvenile Center in Virginia, three days later. Decl. of Bryan S. Johnson at 2, Dkt. No. 61-17. On July 6, F.E. was "stepped down" to a staff-secure facility in Fairfield, California, and on August 4, F.E. was further stepped down to a shelter facility in Lincolndale, New York. Decl. of James De La Cruz (Sept. 14, 2017) at 2. ICE also arrested J.G. on June 16 in Suffolk County. He was transferred the following day to the secure facility in Yolo County and, on July 26, was moved to a staff-secure facility in Tacoma, Washington. Id.; Decl. of J.G. at 4-5, Dkt. No. 61-9.

         The lawsuit seeks relief for not just the three minors who are now bringing the action, but for a class of similarly situated minors in ORR custody. And the amended lawsuit names a wider array of defendants. Recall that A.H.'s initial lawsuit named the Attorney General, officials in HHS/ORR, and the person in charge of the Yolo detention facility. The new lawsuit continues to name those people as defendants, but adds the Acting Secretary of DHS and other officials within DHS/ICE. It also adds Jose Esquivel, an employee of the private nonprofit organization BCFS Health and Human Services, which operates, pursuant to a contract with ORR, the Fairfield staff-secure facility that F.E. passed through. Esquivel is the interim program director of that facility.

         The amended lawsuit also asserts a somewhat different series of legal theories (all of which, again, seem to be put forward in connection with both the request for habeas relief and the request for declaratory/injunctive relief). The first alleged legal violation is that the minors were unlawfully arrested in violation of the Fourth Amendment, the TVPRA, and the Administrative Procedure Act. (This new claim for unlawful arrest is why the amended lawsuit added the defendants from DHS/ICE - those officials were responsible for the arrests.) The second alleged legal violation is that the minors were deprived of their liberty without procedural due process, contrary to the Fifth Amendment. The third is that the minors were deprived of their liberty in violation of the substantive component of the Due Process Clause of the Fifth Amendment and the TVPRA. The plaintiffs further allege that the defendants violated the terms of the consent decree in Flores v. Reno, which sets standards the government must follow in housing noncitizen minors, and that the defendants interfered with their First and Fifth Amendment rights to access the courts and petition the government.[5]

         The federal defendants have filed a motion to dismiss the entire case, on a variety of procedural and substantive grounds. The most significant procedural objections, described more fully below, are that there is no habeas jurisdiction in this judicial district with respect to any of the three minors, and that this district is also not the proper venue for their declaratory and injunctive relief claims. Meanwhile, the two non-federal defendants (Cardall, the official who runs the Yolo County detention facility, and Esquivel, the employee of the nonprofit organization that operates the facility in Fairfield) have filed motions to dismiss on the ground that they are not proper defendants in this lawsuit.

         In turn, the minors have filed a motion for a preliminary injunction, and they seek to provisionally certify a class of unaccompanied minors for purposes of that motion. The minors contend that at least thirteen others have been arrested for similar reasons and are being detained without a meaningful opportunity to contest the basis for their detention. The minors assert only two of their legal theories in support of their request for a class-wide preliminary injunction: unlawful arrest and violation of procedural due process.

         The minors and their attorneys ask the Court to rule quickly on their request for a preliminary injunction. That is understandable - the minors are in custody, they've been in custody for several months now, and they contend the custody is unlawful. But the manner in which this action was brought and then expanded (beginning with a combined habeas petition and complaint by A.H., then growing to a combined habeas petition and complaint by three different minors, held in three different facilities around the country, against an expanded group of defendants, seeking relief not merely for themselves but for all other similarly situated undocumented minors) creates a host of difficult and time-consuming procedural questions. This puts the Court in a difficult position. In an effort to balance the need for a prompt ruling on the request for preliminary injunctive relief for minors being detained by the federal government against the need to ensure that such relief would be procedurally and substantively proper, this ruling addresses only the strongest claim for preliminary injunctive relief and only the one with no potentially significant procedural obstacles to granting that relief. The issues presented by the pending motions that are not decided in this ruling will remain under submission.


         As discussed, three people are now suing in this case. They have combined two distinct types of action in this one lawsuit - a petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief. They assert a variety of different legal claims, under a variety of different constitutional provisions and statutes, against a variety of different defendants. The case largely arises from a law enforcement operation that took place in New York and the implementation of policies developed in Washington, D.C. The first task, therefore, is to determine which people may properly sue in this judicial district, which types of action they may bring, and which defendants they may sue.

         For the reasons that follow, A.H. may pursue habeas relief in this judicial district against Elicia Smith, the local ORR official. However, F.E. and J.G. may not pursue habeas relief in this district, because they have not named the proper respondents, nor do the proper respondents reside in this district. Furthermore, F.E. and J.G. may not pursue their claims for declaratory and injunctive relief in this district, because venue is not proper for those claims. F.E. and J.G. are therefore dismissed as named plaintiffs, without prejudice to refiling their actions in the appropriate jurisdiction.

         The most difficult procedural question is whether A.H. may, in conjunction with seeking habeas relief in this district, pursue his action for additional declaratory and injunctive relief here. In light of the unusual circumstances of this case, the Court will exercise its discretion to adjudicate the declaratory and injunctive relief claims under the doctrine of pendent venue, rather than requiring A.H. to pursue habeas relief in this judicial district while pursuing his closely-intertwined declaratory and injunctive relief claims in a different judicial district.


         The first question is whether A.H. may seek habeas relief in this district. The government contends there is no habeas jurisdiction here, because A.H.'s custodian at the time he brought his original lawsuit does not reside here. As the government notes, when A.H. brought his habeas claim, he was held in the Juvenile Detention Facility in Yolo County, which is in the Eastern District of California. This means, according to the government, that the proper respondent to A.H.'s habeas petition is the head of the Detention Facility. In support of its position, the government cites Rumsfeld v. Padilla, a case that structures the inquiry but which does not resolve whether this Court has habeas jurisdiction over A.H. 542 U.S. 426, 435 n.8 (2004).[6]

         Rumsfeld v. Padilla applied the "immediate custodian rule" to a habeas petition filed by a U.S. citizen detained in military custody in South Carolina. See Id. at 430-32, 442. The immediate custodian rule is the long-held "default rule" that the proper respondent to a habeas petition challenging present physical confinement "is the warden of the facility where [a] prisoner is being held, not the Attorney General or some other remote supervisory official." Id. at 435-39; see also Wales v. Whitney, 114 U.S. 564, 574 (1885). Unlike a typical habeas petitioner challenging imprisonment following a criminal conviction, Padilla challenged detention resulting from a military order by the President deeming him an enemy combatant. 542 U.S. at 431. The Supreme Court concluded that, notwithstanding the unique circumstances leading to his detention, Padilla's habeas petition was ultimately still a challenge to present physical confinement by the executive branch and, as such, jurisdiction was governed by the default rule. Id. at 441-42. Applying the immediate custodian rule to Padilla's case, the Court held that the only proper respondent to his habeas petition was the commander in charge of the brig in South Carolina where he was held. Id. at 439-42.

         Because Padilla had named the correct respondent, among other officials, the Court then turned to the question whether the Southern District of New York, the federal court in which Padilla's petition was filed, had habeas jurisdiction over that petition.[7] The Court interpreted its prior cases addressing the scope of habeas jurisdiction as consistent with "the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement." Id. at 443. It then applied that rule to Padilla's case, concluding that Padilla was required to file in the District of South Carolina, the district of his confinement, and that the Southern District of New York therefore could not entertain Padilla's petition. Id. at 451.

         Padilla refused to decide who the proper respondent is in the immigration detention context, and no controlling authority since has resolved the issue. See Id. at 435 n.8.[8] Courts have taken various approaches. Some have applied the immediate custodian rule in a straightforward fashion. See, e.g., Kholyavskiy v. Achim, 443 F.3d 946, 953 (7th Cir. 2006) (warden of the county facility holding an immigration detainee was the proper respondent); Nken v. Napolitano, 607 F.Supp.2d 149, 159-61 (D.D.C. 2009) (correct respondent was the warden of the facility holding an individual subject to a final order of removal); Zhen Yi Guo v. Napolitano, No. 09 CIV 3023 PGG, 2009 WL 2840400, at *5 (S.D.N.Y. Sept. 2, 2009) (warden of county prison was the appropriate respondent).

         Other courts have held that national-level policymaking officials are proper respondents. See, e.g., Carmona v. Aitken, No. 14-CV-05321-JSC, 2015 WL 1737839, at *4 (N.D. Cal. Apr. 10, 2015) (U.S. Attorney General and DHS Secretary were the proper respondents, as officials "with the actual authority to effectuate the prisoner's release"); Bogarin-Flores v. Napolitano, No. 12CV0399 JAH (WMC), 2012 WL 3283287, at *2 (S.D. Cal. Aug. 10, 2012) (Attorney General and DHS were the proper respondents, not the warden of the contract facility in which the petitioner was held); Farez-Espinoza v. Chertoff, 600 F.Supp.2d 488, 494 (S.D.N.Y. 2009) (DHS Secretary and Attorney General were proper respondents); see also Santos v. Smith, No. 5:17-CV-00020, 2017 WL 2389722, at *8 (W.D. Va. June 1, 2017) (declining to dismiss ORR director where a minor was held in an ORR contract facility).

         Still other courts have concluded that the federal agent charged with overseeing the non-federal detention facility in which the noncitizen is held should be sued. See Khodr v. Adduci, 697 F.Supp.2d 774, 776 (E.D. Mich. 2010) (proper respondent was the ICE District Director, not the warden of county jail); Abner v. Sec'y of Dep't of Homeland Security, No. 06CV308(JBA), 2006 WL 1699607, at *3-4 (D. Conn. June 19, 2006) (ICE field office director, not warden of county facility, was the correct respondent); Zabadi v. Chertoff, No. C 05-01796 WHA, 2005 WL 1514122, at *3 (N.D. Cal. June 17, 2005) (ICE district director, also known as the field office director, who could direct the county warden to release the petitioner was the proper respondent); see also Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003) (INS District Director for the area including the detention center was the proper respondent).

         There is no compelling distinction between criminal custody and immigration custody as such. Courts holding that immigration cases should be treated differently, and that the Attorney General or Secretary of DHS should be the proper respondent in those cases, tend to base this conclusion on the fact that these national officials have the true authority to order the release of the detainee. But if that logic drove the "proper respondent" inquiry, Padilla would have come out differently. Under the logic of Padilla, there's no reason to conclude that, if A.H. were confined in a detention facility administered by federal immigration officials when he brought his habeas petition, he could have named anyone other than the federal official acting as the warden of that facility.

         But A.H. faced a different situation here: he was held in a facility run by an entity other than the federal government, pursuant to a contract with the federal government. Where a petitioner is held in a facility solely pursuant to a contract, rather than by the state or federal government itself, application of the immediate custodian rule must take account of that fact. See, e.g., Bogarin-Flores, 2012 WL 3283287, at *2. Instead of naming the individual in charge of the contract facility - who may be a county official or an employee of a private nonprofit organization - a petitioner held in federal detention in a non-federal facility pursuant to a contract should sue the federal official most directly responsible for overseeing that contract facility when seeking a habeas writ. In other words, the distinction is not between a "traditional" detention and an immigration-related detention. The distinction is between a case where the detainee is held in a federal facility, and a case where the detainee is held in a facility operated by some other entity pursuant to contract with the federal government.

         This rule is a sensible reconciliation of Padilla's instruction to look to the person with "the power to produce the body of [the petitioner] before the court, " ordinarily the warden of the facility holding the petitioner, and the reality that the named plaintiffs are being held in federal custody by other-than-federal actors who are poorly situated to defend federal interests. Padilla, 542 U.S. at 435 (citation omitted). When A.H. filed his original habeas petition, he was held in a secure facility administered by Yolo County. Decl. of A.H. (June 22, 2017) at 5-6. The federal defendants contend that A.H. should have named only Cardall, the Chief Probation Officer for Yolo County, as a respondent, because Cardall acted as the warden of that secure facility. But a Yolo County employee has custody of an immigration detainee like A.H. only to the extent provided by the facility's contract with the federal government. It is pursuant to the power and authority of the federal government - not Yolo County - that A.H. is in custody. So, the federal official with most immediate control over the facility holding the petitioner - that is, the federal official tasked with ensuring that Yolo County complies with the requirements of its contract with ORR - is the proper respondent.

         This case provides a telling example of the conflicts of interest that could arise under the government's contrary rule. Were Cardall the only proper respondent to A.H.'s habeas petition, he would presumably be tasked with defending the federal government's decision to hold A.H. in custody. But Cardall, who is not a federal actor and who is not represented by the Department of Justice in this case, has taken the position that the Yolo County Probation Department did not have just cause to keep most of the undocumented minors that passed through Yolo County prior to August 26, 2017 in secure custody. See Corkery Decl., Ex. C at 3; Corkery Decl., Ex. D, Dkt. No. 61-3. Requiring Cardall to be the sole defender of the federal government's interests under the circumstances would make little sense. Padilla, which held that the federal actor with immediate control over the petitioner was the proper respondent for a petitioner in federal custody, does not stand for the proposition that a person in what is indisputably federal custody should sue a county official like Cardall (or, as would be true in many cases, an employee of a private nonprofit organization) to seek habeas relief.

         Therefore, A.H. properly sued Federal Field Specialist Elicia Smith, the federal official tasked with enforcing the contract pursuant to which A.H. was held in Yolo County. ORR Senior Field Program Specialist Supervisor James De La Cruz agreed that it was Smith's responsibility to make "sure that [ORR] policies regarding the custody of unaccompanied minors are followed by those county officials." Corkery Decl., Ex. B at 80. She "has jurisdiction over the . . . detention of persons under ORR supervision within th[e] geographic area" including Yolo County, and her responsibilities include "ensur[ing] that children placed under the auspices of the Office[] of Refugee Resettlement receive the services required by the Office of Refugee Resettlement, and that the programs that are in [the] geographical . . . location assigned to her follow ORR's policies and procedures . . . ." Id. at 54-55. Since it appears that she is the individual most immediately responsible for enforcing the federal contract under whose authority A.H. is held, she is the proper target of his habeas petition.[9]

         What makes Smith the proper respondent with respect to A.H. is not any power to make binding decisions about A.H.'s custody. The record strongly suggests she had no such authority over A.H. when he was in her custody, just as the commander of the brig in Padilla did not actually have legal authority to release Padilla. See Decl. of James De La Cruz (Sept. 14, 2017) at 1-2, Dkt. No. 54-3; Decl. of James De La Cruz (June 27, 2017) at 3-4, Dkt. No. 15-2. Although one can imagine a sensible contrary rule, Padilla instructs courts not to look to the official who exercises legal control over the petitioner where present physical confinement is at issue. 542 U.S. at 439. Otherwise, Padilla cautions, any convicted federal prisoner could name the Attorney General as a respondent, a result "the statutory language, established practice, and [Supreme Court] precedent" counsel against. Id. at 439-40. At least where a readily identifiable federal official exercises more immediate control over a contract facility than the Attorney General or another department head, as is the case here, Padilla requires a petitioner challenging present physical custody to name that more immediate official. See Abner, 2006 WL 1699607, at *3.

         Because Smith is the proper respondent, this Court has habeas jurisdiction over A.H.'s habeas petition. So long as the proper respondent falls within this Court's territorial jurisdiction, habeas jurisdiction exists. See Padilla, 542 U.S. at 442-44. No party disputes that Elicia Smith is based in San Francisco, within this Court's territorial jurisdiction. See Corkery Decl., Ex. B at 54; Corkery Decl., Ex. E (HHS) at 4493-94, 5733, Dkt. No. 68-4. A.H.'s individual habeas petition therefore is properly before this court, ...

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