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Doe v. Office of Refugee Resettlement

United States Court of Appeals, Fifth Circuit

March 1, 2018

JANE DOE, Petitioner - Appellee

         Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.

          PER CURIAM.

         This case asks whether the Office of Refugee Resettlement ("ORR") is discharging its federal obligation to the benefit of an unaccompanied alien minor in refusing her access to Texas's judicial bypass regime for the purpose of an abortion-the sole basis of which hinges on Jane Doe's wishes.

         I. Based on the limited record before us, this case's path to our court appears as follows.

         In late January 2018, Jane Doe, a pregnant minor, expressed an interest in obtaining an abortion to a "person interviewing her about her needs." That person referred Jane Doe to a nonprofit organization that assists minors in Texas who are facing unplanned pregnancies and need help with legal issues, including access to judicial bypass. That nonprofit referred the matter to Myles Garza and Rochelle Garza of Garza & Garza Law, PLLC. The Garzas met with Jane Doe, who expressed her wish to obtain an abortion. In accordance with that wish, the Garzas filed papers with the state court to initiate judicial bypass proceedings, and the state court set a hearing for February 8.

         ORR did not produce Jane Doe for the hearing. Thereafter, emails show that ORR advised the Garzas that Jane Doe no longer wanted to proceed with an abortion. Additionally, ORR provided the Garzas with hand-written notes, penned by Jane Doe, indicating that she "changed [her] decision to have an abortion" and that she no longer needed the Garzas' help because she did "not want to have an abortion." Emails also show the Garzas attempted to meet with Jane Doe, and ORR denied them access.

         On February 8, the state court issued an order confirming Ms. Garza's appointment as Jane Doe's guardian ad litem and Mr. Garza's appointment as her attorney ad litem. The state court order provides that "any custodian of the child shall grant Attorney Ad Litem and Guardian Ad Litem immediate access to the child and to any information relating the child and shall fully cooperate with Attorney Ad Litem and Guardian Ad Litem." The state court order also requires "the custodian of any relevant records relating to the child, including records regarding social services, law enforcement records, school records, records of a probate or court proceeding, and records of a trust or account for which the child is a beneficiary, . . . [to] provide immediate access to the records to Attorney Ad Litem and Guardian Ad Litem without requiring a further order of release."

         ORR filed its notice of removal under 28 U.S.C. § 1442, which authorizes the removal of any civil action commenced in state court "that is against or directed to . . . [t]he United States or any agency thereof."[1] The district court denied removal.[2] ORR now petitions this Court for an emergency stay of the district court's order. Due to the time-sensitive nature of this inquiry, we elect to consolidate ORR's request for a stay with a determination of the merits of the removal question. For the reasons set forth below, we VACATE the district court's order and REMAND the action to the district court.


         We gleaned the facts of this case from the limited papers presented to us. We pause to address a narrative that the special concurrence and dissent threads, one in which knavish, "agenda-driven" lawyers circumvent an irreproachable agency to prey upon an unaccompanied pregnant minor. The crucial fact-whether Jane Doe wishes to pursue an abortion-cannot be answered by needless judicial spin.

         The special concurrence and dissent writes that "[s]everal weeks after entering ORR custody in an approved shelter, Doe came into contact with attorneys who had learned about her pregnancy, " a characterization-likening Jane Doe's referral to the Garzas as some street encounter or worse, painting a picture of the Garzas wading through a sea of pregnant unaccompanied alien minors with a net-that ignores the statements of Jane Doe's lawyers, who serve as officers of the court subject to its rules of candor, regarding a nonprofit's referral of Jane Doe to the Garzas.[3]

         ORR's Deputy Director for Children's Programs explains how ORR learned about the Garzas' representation of Jane Doe and initiation of a judicial bypass proceeding on her behalf. ORR's Deputy Director states: (1) "Through February 5, 2018, Ms. Doe did not request an abortion from [the shelter] or ORR;" (2) "On February 6, 2018, Attorneys Rochelle Garza and Myles Garza arrived at [the shelter], requested a meeting with Ms. Doe, and conducted that meeting in private. I am not aware of any previous contact between Ms. Doe and Attorneys Garza;" and (3) "On February 7, 2018, Ms. Garza contacted [the shelter] saying a state court hearing had been scheduled for Ms. Doe on the morning of February 8, 2018, and asking [the shelter] to transport Ms. Doe to that hearing."

         The record presents conflicting narratives that need no resolution here.[4]What we know, and all that is relevant for the limited question of removal, is that Jane Doe once wanted an abortion and now does not. As best we can tell from the scant record before the court, the Garzas proceeded in due course to represent a client who they believed sought a judicial bypass to pursue an abortion. We will not join in the special concurrence and dissent's castigation of the Garzas as "solicit[ing] unaccompanied, non-English-speaking children behind the back of [a] legal custodian, " as it is unwarranted and does not answer the stark question before us.


         The issue giving rise to removal here is not a clash of power-the power of the state court order to require production of Jane Doe and the power of ORR to refuse to do so.[5] Rather, the narrow issue is whether ORR possesses a valid federal defense to the state court order by "ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child, "[6] or, on the other hand, whether it is, in fact, blocking what no party disputes is Jane Doe's ability to exercise her constitutional right to pursue an abortion.[7] As the parties agree, the answer hinges on Jane Doe's wishes, the state court order notwithstanding. Thus, the question is ultimately whether facilitating access to the state bypass proceeding is "inconsistent with the minor's stated wishes, " as the government urges. If it is not, then the federal government possesses an independent obligation to produce her for the bypass proceedings that springs from its statutory and constitutional duties, a matter the government does not address. For this limited reason, removal is proper in this case.[8] It does not depend on the independent validity of the state order directed to the federal government, which is a matter we need not assess.[9]

         It is undisputed that Jane Doe at one point requested assistance to access the state courts, and state-appointed counsel proceeded on this basis.[10]But ORR asserts, and substantiates with Jane Doe's own words in the form of two handwritten notes, that Jane Doe has since changed her mind and no longer wishes to proceed with an abortion. The government states the issue in terms of whether Jane Doe presently wants to pursue an abortion, and urges this question ought to be resolved by a neutral party. There is no contention that ORR's statutory obligation to protect the interest of the minor includes the right on its part to independently decide whether an abortion is in her interest.[11]

         Thus, the simple path to resolution of this dispute is, as the government suggests, to vacate the district court's order and to remand to the district court so that it may conduct a hearing to resolve the question of whether Jane Doe presently wishes to pursue an abortion. On remand, the district court will appoint a guardian ad litem. The able district court may take guidance from the processes adhered to in the Hague Convention cases, in which the district court meets with the child ex parte, and with a court reporter present.[12]

         The government is directed to present Jane Doe to proceedings before the district court. If the government elects not to do so, the Garzas, as Jane Doe's current guardian and attorney ad litem, may do so. If the court finds that Jane Doe does not wish to abort her pregnancy, the matter is concluded, and the district court should dismiss the case. If the court finds that Jane Doe wishes to proceed, the district court will instruct the government to cooperate either with the Garzas, or another guardian and attorney ad litem the district court may choose to appoint.


         Finally, and notwithstanding the strong principle of constitutional avoidance that directs us to eschew far-reaching constitutional questions, the special concurrence and dissent baits ORR to confront the antecedent questions of whether there is a constitutional right for unaccompanied alien minors to an abortion and whether there is a constitutional right to a judicial bypass at all when the government is a custodian. To be certain, the use of an order granting an emergency motion to stay and consolidating the merits of a removal question as some envoy to recommend "military" strategy in ORR's supposed "battle" in the "war" on abortion is beyond the pale.

         We will not say much, as the constitutional questions, posed sua sponte by the special concurrence and dissent, were neither briefed nor argued. It bears to mention, however, that our colleague fails to address the opinion that garnered the majority of the D.C. Circuit sitting en banc. Particularly noteworthy are its observations that the Supreme Court has "long recognized that immigrants who lack lawful status are protected persons under the Due Process clause" and the lack of authority that says the "government has ...

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