Kramer Levin Files Motion and Amicus Brief in Support of Immigration Rights Case

On Aug. 11, 2016, Kramer Levin filed a motion and amicus brief in the Fourth Circuit in an important immigration rights case that could also have a far broader reach by setting a precedent concerning the authority of the federal government to intrude on traditional family relationships and decide that parents are unfit to care for their children.

Congress has given the Office of Refugee Resettlement of the US Department of Health and Human Services the authority to detain alien children if they are “unaccompanied.” The statute defines an “unaccompanied alien child” as one “with respect to whom...no parent or legal guardian in the United States is available to provide care and physical custody.” A divided panel of the Fourth Circuit has 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 decision is unprecedented, and applies even if the parent is a US citizen or a lawful resident of the US, as is the mother in this case who unsuccessfully filed a habeas corpus petition to obtain the release of her son from the ORR’s custody. The federal government has not previously intruded on these parent-child relationships. Such determinations are traditionally a matter of state law and due process is required to separate a child from her parents.

The mother has filed a petition for a panel rehearing or rehearing en banc. Kramer Levin filed the amicus brief on behalf of four immigration rights lawyers and a clinical psychologist who treats immigrant children, in support of the petition for rehearing. The brief points out that the right to family unity is the oldest of the fundamental liberty interests recognized by the Supreme Court, that it cannot be circumscribed without due process and that the panel majority’s interpretation of the federal statute is untenable. It explains the decision will affect numerous children and their families - more than 57,000 alien children came to this country on their own in 2014 and more than 33,000 in 2015; and that immigration detention has significant detrimental mental and physical effects on many children and the damage is often permanent. Finally, the brief explains that the ORR’s decisions that parents are unsuitable are essentially unreviewable and made without due process.

Litigation partner Michael J. Dell and associate Kaavya Viswanathan prepared the motion and brief, with assistance from paralegal Santo Cipolla .