A.F.P. v. United States
| Decision Date | 11 July 2022 |
| Docket Number | 1:21-cv-00780-DAD-EPG |
| Parties | A.F.P. and J.F.C., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of California |
(DOC. NOS. 15, 22)
This matter is before the court on defendant United States of America's motion to transfer this action to the United States District Court for the Southern District of Texas (McAllen Division) (Doc. No. 15) and defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction (Doc. No. 22). Pursuant to General Order No. 617 addressing the public health emergency posed by the COVID-19 pandemic, defendant's motions were taken under submission on the papers. (Doc. Nos 16, 23.) Having considered the parties' briefs, and for the reasons stated below, the court will deny the government's motion to transfer venue and grant in part and deny in part the government's motion to dismiss.
In this Federal Torts Claims Act (“FTCA”) case plaintiffs seek damages for injuries allegedly sustained at the hands of the federal government, through the actions and policies of Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”) officers, when plaintiffs entered the United States seeking asylum and were forcibly separated for fifteen months.
A. Factual Background
Plaintiff A.F.P. and his son, J.F.C., are citizens of Honduras. On or about January 29, 2018, A.F.P. and J.F.C., who was a fifteen-year old minor at the time, fled Honduras for the United States, entering the country near McAllen, Texas to seek asylum from persecution. (Id. at 16-18, 20-23.) Plaintiffs voluntarily approached CBP agents to seek asylum, but CBP agents apprehended them, stripped them of their belongings, and detained them separately for two days at a CBP facility described by plaintiffs as a “ hielera ” or “ice box” due to its cold temperatures. (Id. at ¶¶ 24-25.) Immigration officers forcibly separated A.F.P. and J.F.C. after their arrival at the hielera and only permitted plaintiffs to speak to each other for thirty minutes each day. (Id. at ¶ 25.) On the third day, A.F.P was charged in the Southern District of Texas with illegal entry in violation of 8 U.S.C. § 1325, entered a guilty plea to that charge, and was sentenced to time served. (Id. at ¶ 34.) Plaintiff A.F.P. alleges he was not provided with an attorney, an interpreter, a chance to explain his asylum claim, or given any legal information about the charges against him. (Id. at ¶ 26.) The court record reflects that plaintiff A.F.P. was represented by the Office of the Federal Public Defender in that district, assisted by an interpreter, was advised of and waived his rights, and that the court found that his guilty plea was freely and voluntarily made and was supported by a factual basis. (Doc. No. 22-2, Exh. C.)
During A.F.P.'s court hearing on his illegal entry charge, CBP and ICE officers designated J.F.C. as an unaccompanied minor, transferred J.F.C.'s custody to the Office of Refugee Resettlement (ORR), and transferred J.F.C. to a facility in New York, operated by government contractor Children's Village Shelter, without providing the transfer destination or a reason for J.F.C.'s transfer to either A.F.P. or J.F.C. (Compl. ¶¶ 26-27, 34-35; Doc. No. 22-2, Exh. D, Declaration of James De La Cruz ¶ 4.) Seven months later, plaintiff J.F.C. was placed in the custody of a foster family in New York. (De La Cruz Decl. ¶¶ 4-5.) Plaintiffs did not see each other again for fifteen months. (Compl. ¶ 28.) During that time, the federal government provided only limited information to plaintiff A.F.P. about J.F.C. and afforded only minimal opportunities for communication between the two. (Id. at ¶¶ 42, 46, 57-58.) Plaintiffs allege that they suffered, and continue to suffer, substantial trauma as a result of this separation. (Id. at ¶¶ 70, 74.)
A.F.P. alleges that he was mistreated by CBP and ICE officers through the duration of his time in custody. Specifically, he alleges that immigration officers (1) placed him in cold, cramped, dirty, and uncomfortable conditions; (2) provided him with insufficient food and water, and that the little food provided was frozen and expired; (3) deprived him of contact with J.F.C. while telling A.F.P. that he would be deported without his son, threatening a permanent separation. (Id. at ¶¶ 38-40.) A.F.P. was subsequently transferred to Port Isabel, Texas, and then to the Rio Grande Detention Facility in Laredo, Texas. (Id. at ¶ 41.) He was not allowed to communicate with J.F.C. until two days after his transfer to that facility. (Id. at ¶ 42.) A.F.P. alleges that detention officers subjected him to further mistreatment, including crowded conditions, inadequate restrooms, and insufficient water and food. (Id. at ¶¶ 43-44.) A.F.P. did not receive information about his asylum claim for thirty days and was denied communication with J.F.C. for twenty-two days until he began a hunger strike. (Id. at ¶¶ 45-46.) On the third day of the hunger strike, A.F.P. was placed in solitary confinement and allowed to speak to J.F.C. on the telephone for a few minutes. (Id. at ¶ 46.)
During an interview with A.F.P, an asylum officer told plaintiff that he had a credible asylum case. (Id. at ¶ 48.) At the Rio Grande detention center, officers took A.F.P. to a notary public that they referred to as a “lawyer” when A.F.P. asked to speak to someone about his case. (Id. at ¶ 49.) The notary public told A.F.P. that he was going to be deported and that it would take five or six months to be released from the detention center. (Id. at ¶ 50.) At a subsequent removal hearing, the judge declared A.F.P. ineligible for release on bond. (Id. at ¶ 51.) A.F.P., confused by the information provided by the notary public, believed his only choices where to withdraw his asylum application or maintain his application while remaining separated from plaintiff J.F.C. for many months and, as a result, withdrew his asylum application at the hearing. (Id.) Plaintiffs allege that A.F.P. was never offered an attorney and that no one explained to him the consequences of withdrawing his asylum application. (Id. at ¶ 52.) A.F.P. was subsequently transferred to maximum-security prisons in Ohio and Louisiana, where he suffered mistreatment including being provided insufficient food and being denied the use of bathrooms to urinate, before he was finally deported a month after his removal hearing. (Id. at ¶¶ 53-55.)
Plaintiff J.F.C. also alleges that he suffered physical and emotional abuse during his detention. Specifically, plaintiff J.F.C. alleges that, at the hielera, he was given rancid food, deprived of contact with his father, removed to New York without any explanation as to where or why he was being transferred. (Id. at ¶¶ 59-61.) Once transferred to the Children's Village facility in New York, plaintiff J.F.C. alleges that he was forced to drink water from the sink, lived in crowded conditions, was subject to emotional abuse and denied communication with his father. (Id. at ¶¶ 64-68.) While in the custody of Children's Village, J.F.C. went to a local indoor swimming pool, slipped, fell, and injured his ear. (Id. at ¶ 72.) Children's Village staff did not seek treatment for J.F.C. despite plaintiff making multiple reports of pain. (Id.) J.F.C. suffered from an ear infection and continues to suffer hearing loss as a result. (Id.) J.F.C. alleges the separation, lack of contact with his father, and the emotional abuse has caused him physical, emotional, and psychological trauma, including severe memory problems as a result of repressing his experience in New York. (Id. at ¶¶ 69-71.)
In February 2019, A.F.P. and his family, with the help of a U.S.-based human rights organization, lawfully re-entered the United States. (Id. at ¶ 57.) J.F.C. was reunited with A.F.P. and his family a week later, after nearly fifteen months of separation. (Id. at ¶ 58.) B. Procedural Background
Plaintiffs filed suit on May 14, 2021, asserting four claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80: (1) intentional infliction of emotional distress (“IIED”); (2) abuse of process; (3) negligence as to family separation; and (4) negligence as to plaintiff J.F.C.'s time in ORR custody. (Compl. ¶¶ 82-101.) Plaintiffs seek compensatory damages. ///// ///// The government filed a motion to transfer venue to the Southern District of Texas on February 15, 2022. (Doc. No. 15.) Plaintiffs filed their opposition on March 1, 2022, and the government filed a reply on March 8, 2022. (Doc. Nos. 18, 21.)
On March 14, 2022, the government filed a motion to dismiss this action for lack of subject matter jurisdiction. (Doc. No. 22-1.) Plaintiffs filed their opposition brief on March 28, 2022, and the government filed their reply thereto on April 7, 2022. (Doc. Nos. 24, 25.)
Pursuant to 28 U.S.C. § 1404(a), “a district court may transfer any civil action to any other district or division where it might have been brought” for the convenience of parties and witnesses and in the interest of justice. “[T]he purpose of [§ 1404(a)] is to prevent the waste of time, energy and money and to protect litigants witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation marks and citation omitted). “Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (q...
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