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Penn Law professor, alum, and student play critical roles in landmark Third Circuit immigration subject matter jurisdiction case

March 03, 2020

Three individuals closely associated with the University of Pennsylvania Carey Law School – Professor Tobias Barrington Wolff, Attorney Amy Maldonado L’98, and Adam Garnick L’21 – played a crucial role in the Third Circuit’s recent decision that federal district courts have subject matter jurisdiction in immigration cases involving “Migrant Protection Protocols,” which send immigrant detainees to Mexico during deportation proceedings regardless of their country of origin. In Mexico, returned migrants are often thrust into dangerous conditions and even left homeless.

“This is a case about whether vulnerable migrant families, particularly children, who are seeking asylum can get access to federal court to enforce and protect their rights,” said Wolff, who is Penn Law’s Jefferson B. Fordham Professor of Law and Deputy Dean of Alumni Engagement and Inclusion. “The government took a very aggressive position, and the district court took a very aggressive view,” he added. “We are thrilled that the Third Circuit sided with us on this critical issue.”

The case before the Third Circuit involved Maddie, a 7-year-old girl from Guatemala, and her father, E.O.H.C. After entering the United States in California last spring, the father and daughter were detained and sent to Tijuana, Mexico, where they knew no one and lived amidst violence and fear.

When the father and daughter challenged this placement, they were moved to the Berks County Residential Center in Leesport, PA, about 75 miles northwest of Philadelphia. At nearly 250 days in detention to date, Maddie has served the longest period of immigration-related detention of any child in the United States.

Maldonado, who is a solo practitioner in Michigan, and Bridget Cambria of Aldea – The People’s Justice Center, argued that returning Maddie to Mexico during deportation proceedings violated her rights under the Flores Settlement Agreement, which covers various aspects of the government’s detention of migrant children. Specifically, Paragraph 24(B) provides that minors may enforce their rights under the agreement “in any United States District Court with jurisdiction and venue over the matter.”

The district court ruled against the father and daughter, concluding it didn’t have jurisdiction to hear the case and writing that the plaintiffs had to show “more than noble goals and an empathetic case” to secure release from custody during deportation proceedings.

On appeal, the Third Circuit reversed.

“This case raises the age-old question, ‘If not now, when?,’” wrote Judge Stephanos Bibas, a Senior Fellow at Penn Law and appointee of President Donald J. Trump, for the Third Circuit panel, which also included Judge Thomas L. Ambro and Judge Cheryl Ann Krause C’89. “For aliens who are challenging their removal from the United States, the answer is usually ‘later.’ But not always. And not here.”

The Court adopted Professor Wolff’s argument that the Flores Settlement Agreement is a contract in which the U.S. government is a party and as such, federal common law governs.

“Because the United States is a party to the Flores Settlement Agreement through its officers and agencies, contractual claims to enforce that settlement arise under federal common law,” the Court wrote. “Thus, there is federal-question jurisdiction here.”

Maldonado credits Wolff originating “a thoughtful theoretical explanation of why there is subject matter jurisdiction for individual Flores 24(B) claims that was so beautiful in its simplicity and clarity it seems obvious,” especially to the Third Circuit panel per their comments at oral argument.

“Notably,” Maldonado said, “no other judge or attorney has ever posited Tobias’s theory of jurisdiction to our knowledge – and Flores is our wheelhouse.”

Pepper Hamilton LLP pro bono counsel Anthony Vale and Michael S. DePrince “did a lot of heavy lifting on the appeal,” according to Maldonado, who called the appeal “kind of a Penn Law baby” because of the way it developed once the case was dismissed for lack of subject matter jurisdiction by the trial court.

When the Penn Law alum realized she needed a “subject matter jurisdiction genius/scholar,” she posted a Facebook plea to her friends, many of whom include fellow Law School alums. Through this social media search, Maldonado found Professor Wolff and Garnick, who continues to contribute additional research.

Garnick is the co-director of the Penn Law Immigrant Rights Project (PLIRP), and both Maldonado and Garnick were students of Thomas O’Boyle Lecturer in Law Fernando Chang-Muy at the Law School.

“Unfortunately, the fight for Maddie and her father is not over, but this case is a big step in the right direction for them and sets an important precedent that will protect other vulnerable immigrants going forward,” said Garnick. “To have been able to contribute to this resounding victory in some small way was the most rewarding experience I have had in law school, and I feel so fortunate to have been able to help support this impressive team of lawyers.”

Not only is the Third Circuit’s decision a win for Maddie and her father, but the opinion will also likely carry precedential weight with other federal circuits facing the same issue with similar circumstances. The government could still appeal this ruling to a full panel of the Third Circuit or to the United States Supreme Court.”

“This precedential case from a Circuit Court of Appeals is incredibly important and emphasizes the non-partisan nature of the importance of judicial review for the fundamental fairness of our legal system,” said Maldonado.

In the latest case development, after the Third Circuit’s ruling, the government continued to insist they had the power to send this family to Mexico and appeared to threaten they would send one or both of them back imminently. The family’s legal team, however, filed and won an emergency Motion for an Administrative Stay to the Third Circuit pursuant to the All Writs Act, which prohibits the government from removing the pair from the country through further decision by the Third Circuit.

Maddie and her father remain at Berks as another legal team has filed a habeas corpus petition with the court requesting their release. Arguments on that case are scheduled for early March.