Flores Benitez v. Miller

• Docket Number: CIVIL CASE NO. 3:22-CV-00884 (JCH)
• Decision Date: 17 August 2023
• Citation: 687 F.Supp.3d 304
• Parties: Viky Sarai FLORES BENITEZ, Ana Delmi Benitez Alvarado, Javin Benigno Santos Galvez, and J.S.R., a minor, Plaintiffs, v. Stephen MILLER, Jefferson B. Sessions, Kirstjen Nielsen, Kevin McAleenan, and United States of America, Defendants.
• Court: U.S. District Court — District of Connecticut

687 F.Supp.3d 304

Viky Sarai FLORES BENITEZ, Ana Delmi Benitez Alvarado,Javin Benigno Santos Galvez, and J.S.R., a minor, Plaintiffs, v. Stephen MILLER, Jefferson B. Sessions, Kirstjen Nielsen,Kevin McAleenan, and United States of America, Defendants.

CIVIL CASE NO. 3:22-CV-00884 (JCH)

United States District Court, D. Connecticut

Signed August 17, 2023

Jeremy M. Creelan, Jacob Alderdice, Remi Jaffre, Jenner & Block LLP, New York, NY, Michael J. Wishnie, Muneer I. Ahmad, Kirby Tyrrell, Jerome N. Frank Legal Services—Wall St. Yale Law School, New Haven, CT, Alyssa Bernstein, Jenner & Block LLP, Washington, DC, for Plaintiffs.

Carolyn Aiko Ikari, John W. Larson, U.S. Attorney's Office, Hartford, CT, Michelle Lynn McConaghy, U.S. Attorney's Office, New Haven, CT, Nathaniel Michael Putnam, DOJ-USAO, Bridgeport, CT, for Defendant United States of America.

Harry Sandick, Patterson, Belknap, Webb & Tyler, LLP, New York, NY, for Amici Erwin Chemerinsky, Susan Bandes, Martin Flaherty, Eric Freedman, Burt Neuborne.

RULING ON DEFENDANT'S MOTION TO DISMISS

Janet C. Hall, United States District Judge

I.INTRODUCTION

PlaintiffsViky Sarai Flores Benitez("Ms. Flores Benitez"), Ana Benitez Alvarado("Ms. Benitez Alvarado"), Javin Benigno Santos Galvez("Mr. Santos Galvez"), and J.S.R. bring this action pursuant to the Alien Tort Statute("ATS") and the Federal Tort Claims Act ("FTCA").The plaintiffs alleged torture and inhumane treatment as well as several other causes of action arising out of the Trump Administration's now-rescinded Zero Tolerance Policy, which intentionally separated migrant children from their parents.

Before this court is the Motion to Dismiss("Mot. to Dismiss")(Doc. No. 35) of defendantsStephen Miller, Jefferson B. Sessions, Kirstjen Nielsen, Kevin McAleenan, and the United States of America's (the "Government"), which the plaintiffs oppose.See Memorandum of Law in Opposition to Motion to Dismiss("Pls.'Mem.")(Doc. No. 49).

For the reasons discussed below, the court grants in part and denies in part the Motion to Dismiss.

II.BACKGROUND¹

A.Statutory and Regulatory Framework for Removal and Detention of Noncitizens

Noncitizens who are present in the United States "without being admitted or paroled" are "inadmissible" and subject to removal.8 U.S.C. § 1182(a)(6)(A)(i).A non-citizen who enters the United States "at any time or place other than as designated by immigration officers," or "eludes examination or inspection by immigration officers" is subject to criminal prosecution.Id.§ 1325(a).Similarly, a noncitizen who reenters the country after being removed is also subject to criminal sanction, id.§ 1326(a), and an earlier removal order is "reinstated from its original date", id.§ 1231(a)(5).

However, a noncitizen may not be removed to a country from which they are seeking asylum due to a threat to the individual's life or freedom.8 U.S.C. § 1231(b)(3)(A);8 C.F.R. §§ 208.16-18.As such, these noncitizens may be eligible for "withholding of removal," assuming they can establish a "reasonable fear" of persecution or torture.8 C.F.R. §§ 208.31(a)-(b), (e),241.8(e).If an asylum officer determines that, following an interview, a non-citizen possess such a "reasonable fear", the officer must refer the case to an immigration judge, who considers the request for withholding of removal.See8 C.F.R. § 208.31(e).While a noncitizen awaits removal or a decision regarding removal, the Government "shall arrange for appropriate places of detention . . . ."8 U.S.C. § 1231(g)(1).

With respect to unaccompanied minors, the Department of Health and Human Services' ("HHS")Office of Refugee Resettlement("ORR") is tasked with "the care and placement of unaccompanied alien children [("UAC")] who are in Federal custody by reason of their immigration status[.]"6 U.S.C. § 279(b)(1)(A).A UAC is defined as any child who: (1)"has no lawful immigration status in the United States"; (2)"has not attained 18 years of age"; and (3) either has "no parent or legal guardian in the United States" or has "no parent or legal guardian in the United States [who] is available to provide care and physical custody."Id.§ 279(g)(2).

Pursuant to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), "[e]xcept in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to [ORR] not later than 72 hours after determining that such child is an unaccompanied alien child."8 U.S.C. § 1232(b)(3).Once transferred to ORR, the child "shall not [be] release[d] . . . upon their own recognizance."6 U.S.C. § 279(2)(B).In addition, ORR cannot place a child in a person's custody without first determining that "the proposed custodian is capable of providing for the child's physical and mental well-being," including by verifying the proposed "custodian's identity and relationship to the child, if any, as well as [making] an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child."8 U.S.C. § 1232(c)(3)(A).

Beyond the aforementioned statutory framework, the United States is also bound by a 1996 settlement agreement, known as the Flores Settlement Agreement, which established "the minimum standards for the detention, housing, and release of non-citizen juveniles who are detained by the government, and obliges the government to pursue a general policy favoring release of such juveniles."Flores v. Sessions, 862 F.3d 863, 866(9th Cir.2017)(internal quotation marks and citation omitted).The Flores Settlement Agreement applies to accompanied and unaccompanied minors alike, seeFlores v. Lynch, 828 F.3d 898, 905(9th Cir.2016), and demands that where detention is necessary, the United States transfer the child to "a non-secure, licensed facility" within "five days of arrest[.]"Id. at 902.The United States must also "make and record the prompt and continuous efforts on its part toward . . . the release of the minor" to specific potential guardians.Flores v. Rosen, 984 F.3d 720, 738(9th Cir.2020).

B. "[T]he Human Tragedy"² of the Zero Tolerance Policy

Between March and November 2017, defendants Miller, Nielsen, and McAleenan, among other officials, initiated a family separation pilot program in El Paso, Texas.Compl.¶¶ 102-03.Defendants Nielsen, McAleenan, and other officials then supervised the creation of a December 2017 policy memorandum, which called for parents to "be prosecuted for illegal entry . . . and the minors present with them [to] be placed in [HHS] custody" in an effort to substantially deter migrant families from traveling across the United States' southern border.Id.¶ 104.As defendant Miller noted in a July 2019 email, "[m]y mantra has persistently been presenting aliens with multiple unsolvable dilemmas to impact their calculus for choosing to make the arduous journey to begin with."Id.¶ 143.At another juncture, defendant Miller averred, "I would be happy if not a single refugee foot ever again touched American soil."Id.¶ 144.

On April 6, 2018, defendant Sessions issued a memorandum instituting a "Zero Tolerance" Policy for people unlawfully entering the United States.Id.¶ 107.The Policy mandated the prosecution of all people who crossed the Southwest border for the misdemeanor offense of illegal entry.Id.Prior to the policy change, less than one-third of people apprehended crossing the border were criminally prosecuted.Id.¶ 109.Furthermore, family separation had not been the norm, with parents only getting separated from their children "if the adult had a criminal history or an outstanding warrant, or if [Customs and Border Protection (CBP)] could not determine whether the adult was the child's parent or guardian."Id.¶ 167.

On May 4, 2018, the Department of Homeland Security("DHS")—under defendant Neilsen's leadership—instructed Border Patrol officers on how to implement the Zero Tolerance Policy.Id.¶ 140.In practice, DHS referred parents to the Department of Justice("DOJ") for prosecution, with DHS transferring the parent—without their child—to the custody of the U.S. Marshals.Id.¶ 112.The prosecutions were swift—often concluding in forty-eight hours or less—but DHS refused to reunite families after parents were returned to the agency's custody.Id.¶¶ 112-13.Instead, in the short period during which the parents were prosecuted, DHS classified the children as UACs and transferred them to the custody of ORR.Id.¶¶ 113, 134, 136."In some cases, DHS purposely transferred parents to another facility after DOJ completed a prosecution, in order to separate a family."Id.¶ 116.

DHS officials balked at reunification and, in one May 10, 2018 email, ordered CBP "to prevent this from happening" and requested confirmation "that the expectation is that we are NOT to reunite the families and release."Id.¶¶ 114-115.Indeed, DHS and HHS had "no procedures or systems" to "track separated families."Id.¶ 152.Nor did DHS, and defendants Nielsen and McAleenan, in particular, warn ORR that many more traumatized children would be sent their way, leaving ORR facilities and foster families unable to provide the medical, mental health, and other services that these children desperately needed.Id.¶ 151.

In February 2018, Immigration and Customs Enforcement ("ICE") as well as defendants Sessions, Nielsen, and McAleenan were sued in their official capacity over the Government's family separation policy.Id.¶ 176;Ms. L. v. U.S Immigr. & Customs Enf't, 310 F. Supp. 3d 1133, 1137(S.D. Cal.2018)("Ms. L. II").On June 26, 2018, the Ms. L. II Court issued a preliminary injunction enjoining the Zero Tolerance Policy and mandating the commencement of reunification efforts.310 F. Supp. 3d at 1149-50.Additionally, the Ms. L. II Court barred the Government from separating families "absent...