A federal judge in San Francisco has issued a temporary restraining order to keep federal funds flowing to a program that provides lawyers to represent unaccompanied children in immigration matters.
During nearly two hours of argument Tuesday morning, U.S. District Judge Araceli Martinez-Olguin said she wanted further legal briefing and directed the parties to file their papers by April 8, emphasizing that “this needs to be resolved.”
However, later in the day, before the parties filed the additional briefs she requested, the judge entered the TRO.
A TRO is a short-term order that is intended to preserve the status quo pending a fuller hearing on a preliminary injunction.
The lawsuit
The suit was brought by 11 non-profit legal services organizations after they received notice that federal funding for the legal representation of unaccompanied children in immigration matters had been canceled.
Unaccompanied children are foreign-born minors who arrive in the United States without parents or caregivers, often under tragic circumstances.
Congress granted unaccompanied children special legal protections because of their age, the difficulties of navigating the country’s immigration system, and because they are uniquely vulnerable “to trafficking, abuse in government custody, and injustices in the immigration legal system.”
Recognizing that without legal representation, unaccompanied children would be in no position to take advantage of those protections, Congress directed the U.S. Department of Health and Human Services to arrange for legal representation of the children “to the greatest extent practical.”
To that end, the government contracted with the Acacia Center for Justice, which in turn subcontracted the work to a network of 89 legal service organizations in 159 offices around the country. The plaintiffs are among the subcontracted organizations that undertake the work.
To obtain a temporary restraining order, plaintiffs needed to show, among other things, that they had a substantial likelihood of success on the merits of their case, and they would suffer irreparable injury without the order.
The plaintiffs argued that even though funding for the work was appropriated by Congress through September 2027, they received “cancellation orders” from the U.S. Department of the Interior on March 21 ordering them to immediately stop work representing unaccompanied children in immigration cases.
The plaintiffs said that without representation, the children — many with little English — will be unable to understand their rights or present their circumstances to the authorities. Not only will this cause grievous harm to the children, but will cripple the plaintiffs’ organizations and greatly exacerbate the backlog and workload of immigration judges.
The government’s lawyer, Jonathan Ross, raised a series of arguments that sought to undercut the idea that the plaintiffs could be successful in the suit. First, he argued that the plaintiffs were only subcontractors and not entitled to sue under the contract. Second, in any event, the contract expired on its own terms at the end of March. Third, that Congress gave HHS discretion to decide how to provide legal services to unrepresented children and the court did not have the power to interfere with his client’s exercise of that discretion.
Judge Martinez-Olguin, a 2022 Biden appointee, asked the plaintiffs’ lawyer whether they were trying to enforce the contract, and if so, how they could do that if they were not a party.
The plaintiffs’ lawyer laid out a nuanced argument that said that they did not seek to enforce the contract, rather they sought to compel the government to arrange for legal representation for the unaccompanied children as Congress required. She said the government does not have to use the existing subcontractors, but they also can’t leave the children to go unrepresented.
Pro bono lawyers
Ross said HHS expects to provide some legal services for unaccompanied children but not the “direct representation” that plaintiffs have been providing.
In a declaration that accompanied the government’s filing, an HHS official noted that the services that would be provided to unrepresented children on an ongoing basis would cost about $27 million, compared to the nearly $800 million under the terminated contract. The official explained, “to continue funding such services that are not legally required does not fulfill this Administration’s policy goals of reducing unnecessary public expenditures.”
He emphasized that the government does not seek to prevent “pro bono” (that is, unpaid volunteer) representation of unaccompanied children, but said that the agencies do not want to spend “taxpayer funds” on direct representation. He added that the government “is concerned that large multimillion dollar contracts create a market for paid legal service providers to take on cases, which disincentivizes the recruitment of and the volunteering of pro bono counsel.”
In a post-argument press conference outside of the courthouse, Carson Scott, one of the plaintiffs’ lawyers, addressed the question of whether it was realistic to think that pro bono lawyers would be found to represent tens of thousands of unaccompanied children.
Scott said it would be “incredibly unrealistic.” She said that approach “has been tried before and it did not work.”
She added that it was the reason that Congress appropriated the funds for the work the plaintiffs are doing.
The TRO
In her written decision, Martinez-Olguin said she was persuaded that the plaintiffs had raised a serious claim that the government could not eliminate the funding in light of the congressional directive to provide legal representation to unaccompanied children “to the greatest extent practical.” She also found that the plaintiffs would suffer irreparable harm if she did not grant relief.
Accordingly, she vacated the earlier briefing schedule and said the matter would go forward to consider whether she should issue a preliminary injunction extending the temporary restraining order during the full course of the litigation.
The judge ordered briefing on that issue to be concluded by April 14 and said that she would order a hearing on Zoom if she deems it necessary after reviewing the parties’ submissions.
“No child should be left to face a broken immigration system alone … We are grateful that the court sought to restore the status quo while we fight for longer-term relief.”
Lawyers for the plaintiffs
The order was a win for the plaintiffs, who said that the abrupt cutoff in funding came while they were actively representing thousands of children in immigration matters.
Lawyers for the plaintiffs said, “No child should be left to face a broken immigration system alone … We are grateful that the court sought to restore the status quo while we fight for longer-term relief.”
A request for comment from the U.S. Department of Justice lawyers representing the defendant agencies was not immediately returned.
