REYNA AS NEXT FRIEND OF J.F.G. v. Hott
REYNA AS NEXT FRIEND OF J.F.G. v. Hott
Opinion of the Court
*206Macario Diaz Morales and Humberto Ramos Raygoza, who are both aliens, were arrested and detained in Farmville, Virginia, by Immigration and Customs Enforcement ("ICE") under
ICE and the Department of Homeland Security (collectively, "the government") filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending (1) that, by reason of
While the district court rejected the government's jurisdictional argument, it granted the motion to dismiss, concluding that the plaintiffs had not sufficiently alleged that the government's transfer practices violated a substantive due process right. And without a protectable liberty interest, the court concluded, the plaintiffs were not denied procedural due process. Relying on those same reasons, the court also denied Raygoza's request for habeas relief. We affirm.
I
In September 2017, Morales and Raygoza were arrested in Virginia, where they and their families lived, on charges that they were present in the United States without inspection or admission. They were detained at the Farmville Detention Center in Farmville, Virginia, pursuant to
*207In October 2017, a month after their arrest, Morales and Raygoza, along with their children, commenced this action challenging the constitutionality of ICE's transfer decisions and actions.
On November 1, 2017, Morales was released on bond, and on November 8, 2017, Raygoza, who had been transferred to Texas, was also released on bond. They both have asserted, however, that they "are subject to re-detention by ICE at any time" and thereafter would "remain at risk of sudden transfer out of reach of their children," in violation of the constitutional "right to family unity."
In their complaint, Morales, Raygoza, and their children alleged, in three counts, claims grounded on a constitutional right to "family unity." In Count I, they contended that "ICE's policies and actions ... violated the substantive due process right to family unity ... by transferring [detainees] away from their children such that it prevents them from maintaining family unity with their children, as guaranteed by the Fifth Amendment." In Count II, they alleged that "ICE's policies and actions ... violate the procedural due process right to notice and an opportunity to be heard ... prior to transferring a parent away from his or her child, preventing family unity between parent and child, as guaranteed by the Fifth Amendment." And in Count III, Raygoza sought habeas relief based on his alleged unconstitutional transfer from Virginia to Texas. The complaint requested declaratory and injunctive relief against the government, seeking to "stop ... all federal immigration official[s] from indiscriminately ripping families apart by abruptly and suddenly transferring detained immigrant parents without regard for their or their children's rights to family unity and due process of law."
The government filed a motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For its jurisdictional challenge, the government relied on
The district court denied the government's motion based on a lack of jurisdiction, but it dismissed the plaintiffs' complaint under Rule 12(b)(6), concluding that a substantive due process right to family unity would require an unjustified expansion of accepted jurisprudence and, moreover, that such a right would not be violated in this case because "any government intrusion on [such a] right [would be] reasonable and incidental" and would not "shock the conscience." Based on its conclusions reached with respect to the plaintiffs' substantive due process claim, the court concluded that the plaintiffs had no *208"recognized liberty interest" to be protected procedurally. For the same reasons, the court dismissed Raygoza's habeas petition.
From the district court's judgment dated March 20, 2018, the plaintiffs filed this appeal.
II
We begin by noting what the plaintiffs are not challenging. They do not challenge their arrest and ICE's right to detain and continue to detain Morales and Raygoza, agreeing that the two men were lawfully arrested and detained under the authority granted to ICE in
In response to the plaintiffs' claims, the government contends that we lack jurisdiction to review ICE transfer decisions, as they are discretionary decisions over which Congress has precluded judicial review under
Because any question about jurisdiction goes to our power to act, we must decide first whether we have jurisdiction - regardless of whether the issue of jurisdiction is raised or how it is raised - to review ICE officials' decisions to transfer aliens detained under § 1226(a) from a facility near the detainees' families to one farther away. See Demore v. Kim ,
For its jurisdictional argument, the government notes that
Section 1252 provides in relevant part:
(a)(2) Matters not subject to judicial review
* * *
(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision ... and regardless of whether the judgment, decision, or action is made in removal *209proceedings, no court shall have jurisdiction to review -
* * *
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security , other than the granting of relief under section 1158(a) [addressing asylum] of this title.
[T]he statutory proscription Congress enacted, § 1252(a)(2)(B)(ii), speaks of authority "specified" - not merely assumed or contemplated - to be in the Attorney General's discretion. "Specified" is not synonymous with "implied" or "anticipated." See Webster's New Collegiate Dictionary , 1116 (1974) ("specify" means "to name or state explicitly or in detail"). See also Soltane v. U.S. Dept. of Justice ,381 F.3d 143 , 147 (C.A.3 2004) (Alito, J.) ("[W]e do not think ... that the use of marginally ambiguous statutory language without more, is adequate to 'specif[y]' that a particular action is within the Attorney General's discretion for the purpose of § 1252(a)(2)(B)(ii).").
Kucana v. Holder ,
The government contends that discretionary authority to make transfer decisions and engage in transfer actions is "specified" in § 1231(g). Section 1231(g) provides that "the Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal." It also provides that when such "facilities are unavailable," the Attorney General may acquire or construct a facility suitable for such use. The government argues that the word " 'appropriate' when modifying places of detention connotes discretion," and therefore, its decisions and actions regarding transfer are not subject to review by the courts. Its very argument, however - that "appropriate" connotes discretion - gives away its position, as "connote" means "to convey in addition to exact explicit meaning" or "to imply as a logical connotation," either of which means implied. Merriam-Webster's Collegiate Dictionary 264 (11th ed. 2007) (emphasis added). Moreover, while the word "appropriate" is a broad term understood to incorporate "multiple relevant factors," Michigan v. EPA , --- U.S. ----,
More fundamentally, however, the language of § 1231(g) does not address transfers at all, nor does it explicitly grant the Attorney General or the Secretary of Homeland Security discretion with respect to transfers. Indeed, § 1231(g) appears to relate more centrally to the government's brick and mortar obligations for obtaining facilities in which to detain aliens. It provides that the Attorney General "shall arrange for appropriate places of detention for aliens detained pending removal or decision on removal" and, when such facilities "are unavailable," authorizes the Attorney General to "expend" from specified appropriations "amounts necessary to acquire land and to acquire, build, remodel, repair, *210and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention."
Nonetheless, the government relies on our decision in Gandarillas-Zambrana v. Bd. of Immigration Appeals ,
Moreover, any approach that we might take for interpreting § 1252(a)(2)(B)(ii) and § 1231(g) must respect the presumption favoring judicial review. Indeed, in Kucana , the Supreme Court emphasized the importance of this presumption in the context of immigration legislation.
III
On the merits, we, like the district court, have been unable to find a substantive due process right to family unity in the context of immigration detention pending removal. While the plaintiffs have sought support from a few cases in the constitutional neighborhood of such a right, see, e.g. , Obergefell v. Hodges , --- U.S. ----,
Moreover, we are hardly free to create a new substantive due process right in view of Supreme Court decisions cautioning courts from innovating in this area. See Washington v. Glucksberg ,
Plaintiffs' allegations that they were denied procedural due process fares no better because "[p]rocedural due process applies only to the deprivation of liberty and property interests." Rockville Cars, LLC v. City of Rockville, Md. ,
For the reasons given, we affirm.
AFFIRMED
While the relevant statutes often refer to the Attorney General, those references are "deemed to refer" to the Secretary of Homeland Security. See
Reference
- Full Case Name
- Areli Vega REYNA, AS NEXT FRIEND OF J.F.G., K.G., J.D.V. and J.D.V., all minor children Macario Diaz Morales Karen Vitela, as next friend of M.V.R.C., a minor Humberto Ramos Raygoza Adela Mejia, as next friend of K.D.R.M., a minor v. Russell HOTT, in his official capacity as Director of the Immigration and Customs Enforcement Virginia Field Office Ronald D. Vitiello, in his official capacity as Acting Director of the Department of Homeland Security Elaine C. Duke, in her official capacity as Acting Secretary of the Department of Homeland Security, - Jack P. Shonkoff, M.D. James A. Coan, Ph.D. J.H. Pate Skene, J.D., Ph.D. Linda C. Mayes, M.D. Joseph Woolston, M.D. American Academy of Child and Adolescent Psychiatry American Psychoanalytic Association Capital Area Immigrants' Rights Coalition, Amici Supporting
- Cited By
- 17 cases
- Status
- Published