Cooley and Co-Counsel Secure Due Process Protections for Youth in Federal Immigration Custody

Palo Alto – September 7, 2022 – Cooley, along with the Center for Human Rights and Constitutional Law, the National Center for Youth Law, and UC Davis School of Law’s Immigration Law Clinic, secured a victory for the plaintiffs – thousands of children in federal immigration custody – in Lucas R. v. Azar. On August 30, 2022, the US District Court for the Central District of California issued a preliminary injunction requiring the Office of Refugee Resettlement (ORR) to provide critical due process rights guaranteed by federal law. Lawyers Summer Wynn, Michael McMahon, Alix Mayhugh and Jamie Robertson led the Cooley team.

The injunction, which takes effect 60 days from August 30 and remains in effect until a final order resolves the case, safeguards the rights of youth in federal immigration custody to appeal the denial of their safe and timely release to close family members. The injunction also ensures that youth in ORR custody will be able to appeal ORR’s decision to place them in restrictive and locked facilities, such as juvenile detention centers, residential treatment programs and “medium secure” facilities.

Along with enshrining these rights, the injunction requires procedural protections for youth that have never been afforded, including the right to counsel in appealing placement and release decisions, the right to inspect the evidence ORR used in making its decision, the right to present witnesses, and the right to present a challenge to a neutral decision-maker. The government also must justify its placement decisions by clear and convincing evidence.

“The district court’s injunction will have a tremendous impact on the lives of youth in immigration custody and will lead to more children being safely released to their families faster and fewer children suffering in restrictive placements,” McMahon said. “The district court’s summary judgment order in March 2022 affirmed the constitutional rights of these youth, and this injunction lays out the important ways in which ORR must remedy its practices to ensure due process protections for children in their custody.”

The order follows a lengthy legal fight that began in June 2018. In November 2018, five separate classes were certified, and the case survived a motion to dismiss. Most recently, in March 2022, the court partially granted the plaintiffs’ motion of summary judgment. The plaintiffs in the case are still litigating claims to protect the constitutional rights of youth in ORR custody who are placed in or kept in restrictive facilities because of their disabilities, and youth who are prescribed psychotropic medication while in custody.

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