C.M. v. United States

Decision Date04 May 2023
Docket Number5:21-CV-0234-JKP-ESC
PartiesC.M. on his own behalf and on behalf of his minor child, D.V., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
CourtU.S. District Court — Western District of Texas


Before the Court is a Motion to Dismiss (ECF No. 22) filed by Defendant United States of America (“the Government”).[1] Pursuant to Fed.R.Civ.P. 12(b)(1) and (6), the Government seeks dismissal of this action for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. Plaintiff C.M., an asylum-seeker from Honduras, filed this action against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), on behalf of himself and his minor son, D.V., based upon its policy of forced separation of parents and children at the United States' border.[2] See, generally Compl. (ECF No. 1). At the time of separation, D.V. was seven years old. Id. ¶ 12.

In their response (ECF No. 24), Plaintiffs maintain that they have stated claims under Texas law upon which the Court can grant relief and that jurisdiction exists because the FTCA waives sovereign immunity. With the Government's reply (ECF No. 25), the motion became ripe for ruling. Plaintiffs recently moved for leave to provide notice of supplemental authority,[3] which the Court granted as unopposed. For the reasons that follow, the Court grants the motion to dismiss in part and denies it in part.


In short, Plaintiffs allege that federal officials deliberately inflicted trauma on them by forcibly separating them pursuant to a governmental policy designed to cause harm, instill fear, and deter other parents and children from migrating to the United States. Compl. ¶¶ 2-7. They allege that the forced separation caused long-lasting injury and ongoing trauma. Id. ¶ 3. In addition to the trauma inflicted by the forced separation, C.M. alleges that he was subjected to abusive treatment during detention, denied any information about the whereabouts of his son, then tricked into signing a waiver of his asylum claim. Id. ¶¶ 4-6. D.V. was also allegedly subjected to emotional and physical abuse during the separation. Id. ¶¶ 62-64. The Government reunited Plaintiffs at an airport after four months of separation placed on a plane, and deported to Honduras. Id. ¶ 6. They allege that, after their removal, they were in hiding in Honduras “for the very reasons they initially fled . . . to seek asylum in the United States.” Id. ¶ 7.

Given the complexities of this FTCA case, including differing views of the allegations depending on whether the Court is examining the allegations under Fed.R.Civ.P. 12(b)(1) or (6), the Court sets out the background in more detail in multiple sections.

A. Immigration Framework

The Supreme Court has long recognized “that the power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers-a power to be exercised exclusively by the political branches of government.' Kleindienst v. Mandel, 408 U.S. 753, 765 (1972). In making such recognition, the Supreme Court found the above-quoted language [i]n accord with ancient principles of the international law of nation-states” and with Ping v. United States, 130 U.S. 581 (1889) and Fong Yue Ting v. United States, 149 U.S. 698 (1893). Ting reaffirmed:

It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the president and senate or through statutes enacted by congress.

149 U.S. at 705 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)). And as stated in Ping:

The control of local matters being left to local authorities, and national matters being intrusted to the government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.

130 U.S. at 605-06.

“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). Unquestionably, [f]ederal governance of immigration and alien status is extensive and complex.” Id. Immigration law consists of a vast morass of statutes and regulations. See Deng Chol v. Garland, 25 F.4th 1063, 1071 (8th Cir. 2022) (recognizing the difficulties in navigating through “the morass of immigration law”); Mendoza-Garcia v. Barr, 918 F.3d 498, 504 (6th Cir. 2019) (same); Al Khouri v. Ashcroft, 362 F.3d 461, 464-65 (8th Cir. 2004) (same); Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir. 2002) (same).

Naturally, immigration law has not remained stagnant over the years. It has undergone both minor tweaks and substantial overhaul. “In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.” Vartelas v. Holder, 566 U.S. 257, 260 (2012). With that enactment, Congress abolished [a former] distinction between exclusion and deportation procedures and created a uniform proceeding known as ‘removal.' Id. at 262 (citing 8 U.S.C. §§ 1229, 1229a; Judulang v. Holder, 565 U.S. 42, 46 (2011)). “In the same legislation, Congress amended the [prior statute] aggressively to expedite removal of aliens lacking a legal basis to remain in the United States.” Kucana v. Holder, 558 U.S. 233, 249 (2010). These 1996 amendments to immigration law “charted a new course.” Texas v. United States, 606 F.Supp.3d 437, 483 (S.D. Tex. 2022), cert. granted before judgment, 143 S.Ct. 51 (2022).

Under the new statutory regime, Congress made ‘admission' the key word, and defined admission to mean ‘the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.' Vartelas, 566 U.S. at 262 (quoting 8 U.S.C. § 1101(a)(13)(A)). A noncitizen[5] “seeking ‘admission' to the United States is subject to various requirements, see, e.g., § 1181(a), and cannot gain entry if she is deemed ‘inadmissible' on any of the numerous grounds set out in the immigration statutes, see § 1182.” Id. at 263.

In addition to the 1996 statutory changes, “immigration policy fundamentally changed” following the tragic events of September 11, 2001. Bunikyte, ex rel. Bunikiene v. Chertoff, No. A-07-CA-164-SS, 2007 WL 1074070, at *1 (W.D. Tex. Apr. 9, 2007). Before that tragedy, “families apprehended for entering the United States illegally were most often released rather than detained because of a limited amount of family bed space; families who were detained had to be housed separately, splitting up parents and children.” Id. Congress acted swiftly in response to the attack on American soil.

In order to implement policy changes regarding immigration, Congress passed the Homeland Security Act in 2001, splitting the function of the Immigration and Naturalization Service (INS) into three separate agencies and placing all three agencies under the jurisdiction of the Department of Homeland Security (DHS). The Act transferred responsibility for the care and custody of unaccompanied alien children to the Department of Health and Human Services' Office of Refugee Resettlement (ORR).

Id. at *1 n.3. The then “current policy of more restrictive immigration controls, tougher enforcement, and broader expedited removal of illegal aliens . . . made the automatic release of families problematic.” Id. at *1.

Initially, DHS “responded by detaining more family groups,” thereby separating legitimate family groups. Id. Congress rejected this approach” in 2005 stating:

Children who are apprehended by DHS while in the company of their parents are not in fact ‘unaccompanied' and if their welfare is not at issue, they should not be placed in ORR custody. The committee expects DHS to release families or use alternatives to detention such as the Intensive Supervised Appearance Program whenever possible. When detention of family units is necessary, the Committee directs DHS to use appropriate detention space to house them together.

Id. at *2 (quoting House Committee on Appropriations, Department of Homeland Security Appro priations Bill, 2006: report together with additional views (to accompany H.R. 2360), 109th Cong., 1st Session, 2005, H Rep. 109-79). Despite the 2005 “expressed preference for family release ‘whenever possible,' DHS [was] reluctant to return to a policy of automatically releasing family groups.” Id. Consequently, immigration authorities began exploring the use of “Family Detention Centers” to house family members together, and in April 2007, Texas...

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