Stephanie Gibbs, Supervising Litigation Attorney, Safe Passage Project
In 2017 Safe Passage Project’s young client A.H. was arrested without notice outside his home on Long Island, New York and transferred in the dead of night to a detention center in California. His family and attorneys didn’t know where he was. Once Safe Passage Project staff had confirmed his detention and alerted his family that he had not been kidnapped or injured, our staff went to work to secure his release.
Eventually, working in close partnership with the ACLU and others, Safe Passage Project secured A.H.’s release back to his mother. At the same time, his case became the nationally significant Saravia v. Barr class action lawsuit which has provided important protections to an entire group of young immigrants. Immigrants and attorneys nationwide now regularly refer to “Saravia Rights” the same way criminal defendants can refer to “Miranda Rights.” In early 2021 the government agreed to a final Settlement that updates their own internal policy manual to make these protections permanent.
This Settlement represents years of hard work by our Safe Passage Project attorneys in collaboration with the ACLU, NYCLU and other partners to protect immigrant children. The Settlement protects children from arbitrary arrest, ensures access to a lawyer, requires special judicial hearings, and prevents the federal government from using false accusations against this vulnerable population.
In June 2017, A.H., a 17-year-old client of Safe Passage Project, was detained without notice by US Immigration and Customs Enforcement (ICE), and within 24 hours, was transferred out of New York State to an Office of Refugee Resettlement (ORR) youth detention center in northern California. At the time of his arrest, there were no statutes, regulations, protocols, or case precedent governing the re-detention of youth who were previously in ORR custody and later released to family.
Throughout the summer of 2017, Safe Passage Project staff, including Timothy Greenberg, Cristina Trinidad, Alexander Holtzman, Rex Chen, and Stephanie Gibbs, worked closely with ACLU partners to secure the transfer of A.H. back to a facility in New York State. Our team, along with partners at the NYCLU, were some of the first to pilot the new Saravia hearing, now enshrined in Claim 2 of this settlement. Ultimately, our team successfully argued for A.H.’s full release from ORR custody, and he was released back to his mother’s care.
Because of the courage of A.H. and his mother, who is the named plaintiff in the lawsuit, countless other children will now be spared A.H.’s harrowing experience. Should they ever suffer similar treatment by the enforcement agencies, they now have legal recourse: a right to have their re-detention reviewed by an immigration judge.
The Saravia Settlement effectively ends the lawsuit Saravia v. Barr, relating to the rearrest of “Unaccompanied Alien Children” (UAC) on the basis of allegations of gang affiliation It preserves ongoing reporting obligations and establishes jurisdiction should any further disputes arise.
Children who are “class members” and therefore protected by the settlement include those who (1) are designated as UACs; (2) were previously in ORR custody; and (3) are subject to rearrest (past, present, or future) by ICE on basis of alleged gang affiliation.
There are four central claims (or topic areas) that the settlement affects. The first two relate to ICE enforcement, arrest and access to a review hearing, AKA the “Saravia hearing.” It lays out how and when ICE can rearrest a class member. It then requires that the young person have access to a hearing, during which a judge will review whether there is sufficient basis to sustain the arrest and detention of that class member. The third claim relates to the release of class members from ORR custody back to a family member “sponsor”, setting forth new timeframes. The fourth claim affects the adjudication of benefits by U.S. Citizenship and Immigration Services (“USCIS”), including Special Immigrant Juvenile Status (“SIJS”), asylum, T and U statuses, waivers, and adjustment of status. This claim is especially consequential because it limits how USCIS can use a young person’s re-detention against them. For example, if USCIS intends to deny an immigration application because of alleged activity that led to a re-detention, USCIS must provide the young person with the evidence they rely on in making that decision. USCIS may also have to reopen old revocations and denials of immigration applications, which is especially consequential for the clients Safe Passage Project serves.
Analysis of Settlement Claims:
CLAIMS 1 AND 2: ICE Enforcement (Arrest and Hearing)
The parties have developed a flowchart for guidance in identifying class members in advance of arrest, along with new training and guidelines for DHS on encounters with UAC youth and implementation of this settlement.
Class members are entitled to expedited custody hearings and the burden is on the government to prove that there has been a change in circumstances to justify ICE’s rearrest of the minor.
– This provision solidifies the process that has evolved over the course of the Saravia litigation. (Probably the central reason for the settlement was to avoid this procedural right being enshrined in case law based on constitutional rights of UACs.)
Saravia class members whose circumstances have not changed since their last release from ORR, UACs and Accompanied Children (“ACs”), will be placed by ERO in the care of the original ORR sponsor or to immediate family members (with light screening).
– There is a notable distinction being explicitly carved out between “Unaccompanied Children” and “Accompanied Children” (meaning formerly UACs who have been reunited with a parent or guardian). ACs are still class members, but may be subject to ICE detention (if they don’t prevail at their Saravia hearing). Unclear how this will affect any Safe Passage Project clients, as most, if not all clients could be classified as ACs (and not UACs).
Saravia Notice will be filed with EOIR – provided to counsel, respondent may select the venue, and law/facts supporting the rearrest. Service within 48 hours of arrest. Hearing before IJ within 10 days.
– The notice to counsel here is huge. You’ll recall that in AH’s case, we were desperately searching for him for days without contact, and then when initial documents were filed in immigration court, we were not notified.
– Also the timeframe for the initial hearing is a vast improvement, AH’s hearing was months after his initial arrest and even relocation back to NY state.
There remains an ongoing reporting requirement on the government to class counsel re: arrests and hearings.
CLAIM 3: Sponsor Process
If successful at Saravia hearing, child must be released to prior sponsor within 3 days.
– This was another major sticking point in AH’s case – our team fought for months to have the original sponsor essentially “redesignated” and vetted for custody.
There are limited circumstances for not releasing to prior sponsor (sponsor is no longer physically available, evidence of abuse or neglect in the home, or not living with sponsor prior to arrest by ICE or local authorities).
The government cannot use gang affiliation allegations as a basis to deny release to sponsor.
– Again, this was a major sticking point for AH – but the default set by this settlement is the eventual result in AH’s case.
There remains an ongoing reporting requirement on the government to class counsel re: sponsorship release processes and/or placement in ORR shelters.
CLAIM 4: Benefits Subclass
– This section is best understood as limiting the spill-over effects of allegations of gang affiliations into SIJS and other relief applications. This arises out of ongoing communication with the ACLU and other partners based on trends that we continued to see in Safe Passage Project’s representation of AH and other SIJS petitioners.
Outline of the significant changes to the SIJS process:
USCIS will not deny or revoke an I-360 based on the fact that “the state court did not consider or sufficiently consider evidence of the petitioner’s gang affiliation when making its determination that it was not in the best interest of the child to return to his or her home country.”
– This exact reasoning was used in a number of cases at Safe Passage Project.
USCIS agrees that it will not use its consent authority to reweigh the evidence the juvenile court considered in predicate orders.
USCIS will not refuse consent to an I-360 where USCIS believes that the state court did not consider gang allegations, that the applicant did not present such evidence to the state court, or that the state court record is incomplete.
Saravia class members may file a free I-290B appeal to set aside revocations or denials for any of the reasons above, and re-adjudicate the I-360 pursuant to this settlement.
– This was maybe the biggest surprise of the settlement terms.
Allegations of gang affiliation shall not be considered in the context of asylum, T or U nonimmigrant applications, or waiver applications, or adjustment of status.
As an exception, the settlement limits USCIS on the kind of evidence it can still use against applicants to substantiate allegations of gang affiliation against applicants, ruling out using things like “conclusory third party statements.” USCIS must provide adequate notice to applicants and an opportunity to respond. USCIS shall provide to the maximum extent possible the evidence in USCIS’s possession concerning the allegations.
In short, the settlement of the Saravia v. Barr litigation is a victory for due process and family unity. A.H. is one of many minors whom our government profiled and targeted due to their race. He and others were arrested and transferred across the country without notice to his attorney or family. The process established in this settlement will ensure that young immigrants will never again be subject to such terrifying tactics. We’re proud that we held our government to account, and that A.H. and others like him are protected.