No IN THE United States Court of Appeals for the Fourth Circuit

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1 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 1 of 14 Total Pages:(1 of 15) No IN THE United States Court of Appeals for the Fourth Circuit D.B., as next friend of R.M.B., a minor, Petitioner-Appellant, v. BRENT CARDALL, Chief Probation Officer, Yolo County Juvenile Detention Facility; ROBERT CAREY, Director, Office of Refugee Resettlement, U.S. Department of Health and Human Services, in his official capacity; and SYLVIA MATHEWS BURWELL, Secretary, Department of Health and Human Services, in her official capacity, Respondents-Appellees. On Appeal from the United States District Court for the Eastern District of Virginia at Alexandria No. 1:15-cv JCC-JFA. Hon. James C. Cacheris BRIEF OF AMICI CURIAE LINDA BRANDMILLER, HOLLY COOPER, GREG LEWIS, CARTER WHITE AND LORILEI WILLIAMS IN SUPPORT OF APPELLANT S PETITION FOR PANEL REHEARING OR REHEARING EN BANC MICHAEL J. DELL KAAVYA VISWANATHAN KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York (212) Attorneys for Amici Curiae Linda Brandmiller, Holly Cooper, Greg Lewis, Carter White and Lorilei Williams

2 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 2 of 14 Total Pages:(2 of 15) TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTEREST OF AMICI CURIAE... 1 ARGUMENT... 2 I. THE DIVIDED PANEL S DECISION WILL AFFECT NUMEROUS CHILDREN AND FAMILIES... 3 II. III. IMMIGRATION DETENTION HAS SIGNIFICANT DETRIMENTAL EFFECTS ON MANY CHILDREN... 4 IT IS EXTREMELY DIFFICULT FOR PARENTS AND ADVOCATES TO CHALLENGE ORR S FINDINGS THAT PARENTS ARE UNSUITABLE CAREGIVERS AND OBTAIN A DETAINED CHILD S RELEASE... 7 CONCLUSION i -

3 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 3 of 14 Total Pages:(3 of 15) Cases TABLE OF AUTHORITIES Page(s) Lassiter v. Dep t of Social Servs., 452 U.S. 18 (1981)... 2 Santosky v. Kramer, 455 U.S. 745 (1982)... 2 Troxel v. Granville, 530 U.S. 57 (2000)... 2 Statutes 6 U.S.C. 279(g)(2)... 1, 2 8 U.S.C. 1232(c)... 8 Other Authorities International Detention Coalition, Captured Childhood (2012)... 4 n.4, 5 n.9 Kalina M. Brabeck, M. Brinton Lykes & Cristina Hunter, The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families, 84 Am. Journal of Orthopsychiatry 496 (2014)... 5 nn.5 &7 Luis H. Zayas and Aimee Miller, Human Rights First, Immigrant Detention Centers Harm Children s Mental Health (Austin- American-Statesman) (Aug. 13, 2015), n.4, 5 n.9, 6 n.14 Medical Association for Prevention of War, The Effect of Detention Centres on the Health of Children (May 2002)... 5 n.8, 6 nn ii -

4 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 4 of 14 Total Pages:(4 of 15) Australian Human Rights Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), 6 n.12 ORR, Children Entering the United States Unaccompanied, Section 1.1, 4 n.3 Rachel Kronick, et al., Asylum-Seeking Children s Experiences of Detention in Canada: A Qualitative Study, 85 Am. Journal of Orthropsychiatry 287 (2015)... 4 n.4, 5 nn.6 & 10, 6 n.11 Statement by Mark Greenberg, U.S. Dep t of Health and Human Services before the Permanent Subcommittee on Investigations, United States Senate (Jan. 28, 2016), Greenberg-on-unaccompanied-children n.2 Stop Detaining Families, National Immigrant Justice Center, (last visited Aug. 8, 2016)... 5 n.10 Susan J. Ko, et al., Creating Trauma-Informed Systems: Child Welfare, Education, First Responders, Health Care, Juvenile Justice, 39 Professional Psychology: Research and Practice 396 (2008)... 6 n.13 - iii -

5 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 5 of 14 Total Pages:(5 of 15) INTEREST OF AMICI CURIAE Linda Brandmiller is the head of Asociacion de Servicios para el Immigrante (ASI) in San Antonio, Texas. Holly Cooper is the Associate Director of the Immigration Law Clinic at the University of California Davis. Greg Lewis is a licensed clinical psychologist with Alliance Clinical Associates, who also conducts evaluations and staff trainings on trauma for the Young Center for Immigrant Children s Rights at the University of Chicago. Carter White is the Supervisor of the Civil Rights Clinic at the University of California Davis. Lorilei Williams is the Director of the Immigration Unit of Staten Island Legal Services. 1 Amici respectfully submit this brief to elaborate on the reasons why appellant s petition for panel rehearing and rehearing en banc should be granted. The divided panel incorrectly interpreted 6 U.S.C. 279(g)(2) to permit the Office of Refugee Resettlement ( ORR ) to detain alien children who have a parent available to care for them in the United States if ORR unilaterally makes an essentially unreviewable decision that the parent is not an adequate caregiver. Amici provide legal and/or clinical services to detained immigrant children and their families. Amici have a compelling interest in the constitutional rights, civil liberties 1 This brief was not authored in whole or in part by counsel for any party. No person other than amici curiae or their counsel made a monetary contribution to fund the preparation or submission of this brief. All parties have consented to the filing of this brief, in accordance with Fed. R. App. P. 29(a)

6 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 6 of 14 Total Pages:(6 of 15) and well-being of their clients and the numerous other parents and children threatened by the decision. ARGUMENT The right to family unity is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court. Troxel v. Granville, 530 U.S. 57, 65 (2000). Parents fundamental interest in the care, custody and control of their children does not evaporate simply because they have not been model parents. Santosky v. Kramer, 455 U.S. 745, (1982). Instead, the bond between parents and their children is so central to our society and our way of life that the state may step in to separate parents from their children only in extreme circumstances and only after granting parents the procedural protections guaranteed by the Due Process Clause. Lassiter v. Dep t of Social Servs., 452 U.S. 18, (1981). Recognizing the critical importance of family bonds, Congress has given ORR the authority to detain alien children only if they are unaccompanied. 6 U.S.C. 279(g)(2), in relevant part, defines an unaccompanied alien child ( UAC ) as one with respect to whom... no parent or legal guardian in the United States is available to provide care and physical custody. The panel majority interpreted this provision to permit ORR to detain an alien child if ORR unilaterally determines that the child s parents are unfit to care for the child. That - 2 -

7 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 7 of 14 Total Pages:(7 of 15) decision is unprecedented, untenable and deeply flawed. By incorrectly equating a parent s availability to care for a child with ORR s subjective view of the parent s fitness as a caregiver, and allowing ORR to make that critical fitness determination unilaterally even when the parent is a U.S. citizen or lawful resident, the panel majority has given ORR powers to separate a child from her parents that extend far beyond what Congress prescribed in the Homeland Security Act and the William Wilberforce Trafficking Victims Protection Reauthorization Act of Congress has never granted such authority to a federal agency. The panel s decision threatens the most fundamental interests of parents and their children and the very fabric of our society. This Court should grant rehearing and reverse. I. THE DIVIDED PANEL S DECISION WILL AFFECT NUMEROUS CHILDREN AND FAMILIES The number of alien children coming to this country on their own has risen sharply, from 13,625 in FY 2012 to 57,496 in FY 2014 and 33,736 in FY If a child has an available parent here, ORR must release the child to the parent s custody. Congress has authorized ORR to classify a child as unaccompanied only if it finds that no parent is available. In such circumstances, ORR may determine the type of facility in which to house the child, 2 Statement by Mark Greenberg, U.S. Dep t of Health and Human Servs. before the Permanent Subcommittee on Investigations, United States Senate (Jan. 28, 2016),

8 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 8 of 14 Total Pages:(8 of 15) which should be the least restrictive setting appropriate for the child s needs. 3 The practice of holding a UAC in detention pending immigration proceedings is discouraged. However, the surge in UAC referrals over the past five years has challenged ORR s ability adequately to care for and place the children in its custody. That has led to children being wrongly detained for lengthy periods of time. The panel majority s decision would enormously exacerbate this already heartbreaking problem by incorrectly empowering ORR to detain alien children if ORR determines their parents are unfit to care for them. The decision will result in numerous additional children being held in detention when they should be released to an available parent. II. IMMIGRATION DETENTION HAS SIGNIFICANT DETRIMENTAL EFFECTS ON MANY CHILDREN Studies show that for many children it is deeply detrimental and traumatic to be separated from their parents and held in immigration detention: Immigration detention has a detrimental effect on the mental health of detained children. It puts them at risk for a variety of psychosocial and developmental problems, including anxiety, depression and Post Traumatic Stress Disorder ( PTSD ). 4 Detention is regarded as a 3 ORR, Children Entering the United States Unaccompanied, Section 1.1, available at 4 Luis H. Zayas and Aimee Miller, Human Rights First, Immigrant Detention Centers Harm Children s Mental Health (Austin-American-Statesman) (Aug. 13, 2015), (many children in detention have worrisome clinical issues, including severe separation anxiety, depression, hopelessness, despair and agitation and most children experienced none of these conditions prior to their detention, but began showing - 4 -

9 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 9 of 14 Total Pages:(9 of 15) major contributing factor to mental deterioration, despondency, suicidality, anger and frustration. 5 Children separated from family members who are primary caregivers experience emotional trauma and diminished well-being. 6 Their attachment relationships are disrupted, and they often experience immediate symptoms of distress and behavioral disturbance, such as loss of appetite, sleeping changes, crying, anxiety, withdrawal and anger/aggression. 7 Longer term, they may suffer disruptions in neurobiological and personality development, and difficulty or inability to maintain appropriate relationships. 8 The longer children are detained, the more likely they are to suffer from emotional, psychological and/or developmental problems. 9 However detention for even short periods of time has detrimental mental and physical effects on children. 10 symptoms soon after arriving in the facilities ); Rachel Kronick, et al., Asylum-Seeking Children s Experiences of Detention in Canada: A Qualitative Study, 85 Am. Journal of Orthopsychiatry 287, 287 (2015) ( children in detention have high rates of psychiatric symptoms, including self-harm, suicidality, severe depression, regression of milestones, physical health problems, and posttraumatic presentations ); International Detention Coalition, Captured Childhood 49 (2012) ( A wide range of psychological disturbances are commonly observed among children in the detention centre. ). 5 Kalina M. Brabeck, M. Brinton Lykes & Cristina Hunter, The Psychosocial Impact of Detention and Deportation on U.S. Migrant Children and Families 84 Am. Journal of Orthopsychiatry 496, 499 (2014). 6 Kronick, supra note 4 at Brabeck, supra note 5 at 5. 8 Id. ( [A] child s sense of security is rooted in relationships with familiar caregivers the physical separation between a parent and child disrupts this essential secure base, risking internalizing symptoms (depression, anxiety), externalizing behaviors (withdrawal, aggression), and social and cognitive difficulties ); Medical Association for Prevention of War ( MAPW ), The Effect of Detention Centres on the Health of Children xxii (May 2002) ( attachment disruption and attachment trauma may affect children s ongoing capacity to form reciprocal emotional relationships and is linked to disruptions in personality development ). 9 Zayas and Miller, supra note 4 ( the longer [a child s] stay in detention, the more severe the impact on [his or her] mental health ); Captured Childhood, supra note 4 at ( The longer children are detained, the more likely they are to be exposed to traumatic events. Further, children and young people who are detained for extended periods of time are more likely than others to experience feelings of isolation, detachment and loss of confidence ). 10 Kronick, supra note 4 at 292 ( [A]ny incarceration is damaging for immigrant children ); Captured Childhood, supra note 4 at 48 ( detention, even for short periods of time, is detrimental - 5 -

10 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 10 of 14 Total Pages:(10 of 15) For refugee children who have already experienced pre-immigration trauma, incarceration evoke[s] a re-experiencing of previous (sometimes prolonged) trauma. 11 The problems immigrant youth face in detention are exacerbated when the detention facilities lack staff with sufficient training. 12 The effects of trauma are manifested in children in different ways. They are often misunderstood by detention staff, prompting punishment, rather than specialized treatment. But if traumatic stress is not appropriately addressed, it may contribute to a downward spiral of increasingly deviant and risky behavior, retraumatization, and chronic juvenile (and adult criminal) justice involvement. 13 The trauma of detention can have lasting, irreversible effects even after the child is released from detention. 14 In short, immigration detention and family separation are extremely traumatic for many children. Every aspect of a child s emotional and cognitive well-being is adversely affected. The damage is often permanent. and not appropriate for children ); Stop Detaining Families, National Immigrant Justice Center, (last visited Aug. 8, 2016) ( Regardless of the amount of time they are detained, children can suffer psychological trauma and permanent mental health issues ). 11 Kronick, supra note 4 at 292; Captured Childhood, supra note 4 at MAPW, supra note 8 (detention centers often have insufficient mental health support staff to adequately care for children in distress); Australian Human Rights Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), (detention center staff are generally not trained to work with children). 13 Susan J. Ko, et al., Creating Trauma-Informed Systems: Child Welfare, Education, First Responders, Health Care, Juvenile Justice, 39 Professional Psychology: Research and Practice 396, 400 (2008) 14 Zayas and Miller, supra note 4 (the trauma of detention stunts children s brain development, which affects essential cognitive functioning, problem-solving, emotional self-regulation, social cue reading, regressions in behaviors, attachment disorders, psychiatric problems, developmental delays, and chronic physical illnesses ); MAPW, supra note 8 (separation from attachment figures constitute[s a] significant stressor[] for children and [is] likely to be of a magnitude to effect neurobiological development there are no effective interventions available to reverse [this] charge[] )

11 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 11 of 14 Total Pages:(11 of 15) III. IT IS EXTREMELY DIFFICULT FOR PARENTS AND ADVOCATES TO CHALLENGE ORR S FINDINGS THAT PARENTS ARE UNSUITABLE CAREGIVERS AND OBTAIN A DETAINED CHILD S RELEASE ORR does not permit children s counsel to participate in the release decision-making process and does not provide for independent review of the release decision. 15 When ORR issues written notices denying reunification or keeping children in secure detention facilities, the notices often contain little explanation why the child continues to be held in custody. 16 ORR affords neither detained juveniles nor their parents or other proposed custodians any transparent, meaningful opportunity to be heard on the matter of children s release, [and] no opportunity to see, explain or rebut whatever evidence ORR believes justifies a child s continued secure confinement In Ramirez v. Burwell, Albertina Ramirez filed a petition for habeas corpus on behalf of her minor grandson, P.A., who has been held by ORR in a secure detention facility for over two years, despite Ramirez s availability to take custody. Amicus Holly Cooper, P.A. s counsel, repeatedly requested to participate in ORR s custody review hearings for P.A. ORR, however, never provided her notice of any custody review, and never provided her with a copy of its ultimate custody decision. Memorandum in Support of Habeas Petition at 27, Ramirez v. Burwell, 16cv1511-TLN-EFB (E.D. Cal. Jul. 8, 2016), ECF No. 6; see also Declaration of Lorilei Alicia Williams 16, Flores v. Meese, 85cv4544-DMG-AGR (C.D. Cal. Aug. 5, 2016) (ORR appears to have done its best to insulate its decisions to continue children in detention from judicial review ). 16 See Ramirez Memorandum, supra note 15 at 28 ( P.A. has not been provided with a written, explanatory notice of reasons for his continued detention in a secure facility. Further, since P.A. s initial apprehension, P.A. has had only one cursory notice from ORR explaining why he is being detained, and this notice was only served on his mother in an undated letter. ); Declaration of Holly S. Cooper, Ramirez v. Burwell, 16cv1511-TLN-EFB (E.D. Cal. Jul. 8, 2016), ECF No. 6-8 (detailing counsel s unsuccessful efforts, over the course of six months, to obtain information from ORR about P.A. s custody determination and treatment in detention); Williams Declaration, supra note 15 at 17 ( I have never known ORR to provide any written explanation for its decisions against releasing juveniles from staff-secure or RTC detention ). 17 Williams Declaration, supra note 15 at

12 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 12 of 14 Total Pages:(12 of 15) Although ORR is required to internally review the decision to securely detain a child on a monthly basis, 8 U.S.C. 1232(c), these reviews occur without notice to the child or counsel, and offer no opportunity for counsel to present or review evidence. 18 The process by which a parent can appeal ORR s decision to keep a child in custody is similarly impenetrable. 19 ORR lacks a fair and transparent procedure by which detained children and their parents [can] understand and test the government s case for refusing release. 20 CONCLUSION The Court should grant the petition for rehearing or rehearing en banc. Respectfully submitted, /s/ Michael J. Dell Michael J. Dell Kaavya Viswanathan Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York Telephone: (212) mdell@kramerlevin.com August 11, 2016 Counsel for Amici Curiae 18 See Ramirez Memorandum, supra note 15 at p. 30 ( P.A. first received notice of the reason for his detention twenty-two months after first being placed in a secure facility, when the Administration for Children and Families sent a letter to his mother (but not to his counsel). In giving the reason for P.A. s continued detention by ORR, the letter states simply Your son poses a safety risk to the community, with no further explanation of this determination ). 19 Williams Declaration, supra note 15 at 17 (there is no effective way to appeal ORR s custody decisions administratively; [a]lthough ORR publishes on its website that parents may send a letter to the ACF Assistant Secretary appealing the denial, this is not communicated clearly to the parents or children and there is no explanation of the right of judicial review ). 20 Id. at

13 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 13 of 14 Total Pages:(13 of 15) CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATIONS 1. This brief complies with the page limitations set forth in Fed. R. App. P. 29(d) and 35(b)(2) because it is 7.5 pages in length and 2,329 words, exclusive of the table of contents, table of citations, certificate of service, certificate of digital submission and this certificate of compliance, which are exempted by Fed. R. App. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared using Microsoft Word 2010 in a proportionally spaced typeface, namely Times New Roman 14 point font. /s/ Michael J. Dell Michael J. Dell Counsel for Amici Curiae Dated: August 11, 2016

14 Appeal: Doc: 66-1 Filed: 08/11/2016 Pg: 14 of 14 Total Pages:(14 of 15) CERTIFICATE OF SERVICE I hereby certify that on August 11, 2016, I electronically filed the foregoing Amicus Curiae Brief in Support of Appellant s Petition for Panel Rehearing and Rehearing En Banc with the Clerk of Court using the CM/ECF System. Counsel for all parties are registered CM/ECF users and will be served with the foregoing document by the Court s CM/ECF System. /s/ Michael J. Dell Michael J. Dell Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York Telephone: (212) mdell@kramerlevin.com Counsel for Amici Curiae

15 Appeal: Doc: 66-2 Filed: 08/11/2016 Pg: 1 of 1 Total Pages:(15 of 15) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT APPEARANCE OF COUNSEL FORM BAR ADMISSION & ECF REGISTRATION: If you have not been admitted to practice before the Fourth Circuit, you must complete and return an Application for Admission before filing this form. If you were admitted to practice under a different name than you are now using, you must include your former name when completing this form so that we can locate you on the attorney roll. Electronic filing by counsel is required in all Fourth Circuit cases. If you have not registered as a Fourth Circuit ECF Filer, please complete the required steps at Register for efiling. THE CLERK WILL ENTER MY APPEARANCE IN APPEAL NO as [ ]Retained [ ]Court-appointed(CJA) [ ]Court-assigned(non-CJA) [ ]Federal Defender [ ]Pro Bono [ ]Government COUNSEL FOR: Linda Brandmiller, Holly Cooper, Greg Lewis, Carter White and Lorilei Williams as the (party name) appellant(s) appellee(s) petitioner(s) respondent(s) amicus curiae intervenor(s) movant(s) /s/ Michael J. Dell (signature) Michael J. Dell Name (printed or typed) Voice Phone Kramer Levin Naftalis & Frankel LLP Firm Name (if applicable) Fax Number 1177 Avenue of the Americas New York, New York Address mdell@kramerlevin.com address (print or type) CERTIFICATE OF SERVICE I certify that on 8/11/2016 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: /s/ Michael J. Dell 8/11/2016 Signature Date 01/19/2016 SCC