K.O. v. U.S. Immigration & Customs Enforcement

Decision Date23 June 2020
Docket NumberCivil Action No. 20-309 (RC)
Citation468 F.Supp.3d 350
Parties K.O., et al., Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
CourtU.S. District Court — District of Columbia

Brian James Whittaker, Kenneth John Nichols, Nixon Peabody LLP, Washington, DC, David A. Vicinanzo, Pro Hac Vice, Nathan Warecki, Pro Hac Vice, Nixon Peabody LLP, Manchester, NH, Howard M. Cooper, Pro Hac Vice, Joseph Michael Cacace, Pro Hac Vice, Todd & Weld LLP, Boston, MA, for Plaintiffs.

Paul Christopher Quast, Mary Hampton Mason, Department of Justice, Washington, DC, for Defendants.



RUDOLPH CONTRERAS, United States District Judge

Plaintiffs in this putative class action are minor non–United States citizen children who, after arriving in the United States either at or between designated ports of entry, were forcibly separated from their parents by the Department of Homeland Security (DHS) or one of its sub-agencies, Customs & Border Patrol (CBP), Immigration and Customs Enforcement (ICE), or U.S. Customs & Immigration Services (USCIS). Their case arrived before this Court upon transfer from the District of Massachusetts. In that court, Plaintiffs had filed their Complaint, ECF No. 1, and their First Amended Complaint ("Am. Compl."), ECF No. 45, asserting Constitutional and related statutory claims against a number of individual federal officials, including the former Attorney General, the now-former Secretary of DHS, the now-former White House Chief of Staff, and a Senior Advisor to the President (collectively, with others identified below, "the individual Defendants"). The individual Defendants moved to dismiss the First Amended Complaint. See Mot. Dismiss, ECF No. 51. While that motion was pending, Plaintiffs sought leave to amend their complaint a second time. They proposed to add the United States as a defendant and to add eight counts against the United States under the Federal Tort Claims Act (FTCA). Pls.’ Mot. for Leave to File Second Am. Compl. ("Mot. Amend"), ECF No. 64. The individual Defendants opposed this, as did the United States, which appeared specially for the limited purpose of opposing the motion.

Judge Hillman of the District of Massachusetts granted the individual DefendantsMotion to Dismiss for lack of personal jurisdiction and improper venue. Mem. of Decision and Order ("Mem."), ECF No. 86. He transferred the case to this District pursuant to 28 U.S.C. § 1631. Id. at 14. Judge Hillman did not address the individual Defendants’ additional arguments that the First Amended Complaint should be dismissed for failure to state a claim, and he explicitly left the Motion to Amend open for this Court to resolve. See id. at 14 & n.9.

The Court has received supplemental briefing from Plaintiffs, from the individual Defendants, and from the United States. The individual Defendants maintain that the First Amended Complaint should be dismissed for failure to state a claim. Plaintiffsmotion to file a Second Amended Complaint adding claims against the United States is opposed by both the individual defendants and by the United States, which is still not a party. In addition to these pending motions, the individual Defendants have filed a Notice of Related Case, ECF No. 90, which the Court also addresses here. For the reasons stated below, the Court dismisses the First Amended Complaint for failure to state a claim, and denies leave to file a Second Amended Complaint.


This Memorandum Opinion primarily concerns a motion to dismiss for failure to state a claim and a motion to amend a complaint. On a motion to dismiss for failure to state a claim, the Court accepts as true the factual allegations in the complaint and construes them liberally in the Plaintiffs’ favor. See, e.g. , United States v. Philip Morris, Inc. , 116 F. Supp. 2d 131, 135 (D.D.C. 2000). When considering a motion to amend a complaint, the Court evaluates the proposed amended complaint by applying essentially the same standard it would on a motion to dismiss. See James Madison Ltd. v. Ludwig , 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citing Foman v. Davis , 371 U.S. 178, 181–82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ). Accordingly, for now, the Court accepts as true the Plaintiffs’ factual allegations in their complaints. In recounting the alleged factual background the Court cites to the First Amended Complaint for two reasons. First and foremost, that complaint is operative at this time. Second, the facts of the case pertain much more to the individual Defendants’ arguments in their motion to dismiss the First Amended Complaint for failure to state a claim, whereas the arguments against leave to file a Second Amended Complaint are almost wholly procedural. As described below, the arguments against leave to amend concern the procedural history of the claims against the United States, and these procedural arguments have nothing to do with the claims against the individual defendants. Because of the completely separate sets of arguments on the two motions, there is little risk of confusion, especially considering that the two complaints are substantively identical with regard to the individual Defendants. Compare First Am. Compl., with Proposed Second Am. Compl. ("Prop. Compl."), ECF No. 64-1 (alleging nearly identical facts, and adding only claims against the United States and acknowledgment of certain of the individual defendants’ departures from positions in the government).

A. Legal and Factual Background

Many non-citizens arriving in the United States without immigration documentation are subject to the "expedited removal" proceedings created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104–208, 110 Stat. 3009– 546 (codified as amended in scattered sections of 8 U.S.C.). These procedures were intended "to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted" while allowing those claiming asylum the opportunity to have their claims heard. Grace v. Whitaker , 344 F. Supp. 3d 96, 107 (D.D.C. 2018) (quoting H.R. Rep. No. 104-828 at 209 (1996)). Under the Refugee Act of 1980, any non-citizen "who is physically present in the United States or who arrives in the United States ... irrespective of [their] status, may apply for asylum." 8 U.S.C. § 1158. Under "expedited removal" procedures, the Department of Homeland Security may remove an alien from the United States "without further hearing or review[,] unless the alien indicates either an intention to apply for asylum under [ 8 U.S.C. § 1158 ] or a fear of persecution" supporting a claim to withholding of removal. Id. § 1225(b)(1)(A)(i). Non-citizens in "expedited removal" are nonetheless eligible to pursue asylum provided they demonstrate a credible fear of persecution. Id. § 1225(b)(1)(B). They are, however, to be "detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed." Id. § 1225(b)(1)(B)(iii)(IV).

Detention of minors is handled differently from detention of adults. The Stipulated Settlement Agreement in Flores v. Reno ("the Flores Agreement"), Am. Compl. Ex. 1, Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997), ECF No. 45-1, is foundational for many later-enacted statutes and regulations governing the detention of minors in immigration detention. It defines a minor as "any person under the age of eighteen (18) years who is detained in the legal custody of the [Immigration and Naturalization Service,]" which was the predecessor to those agencies involved in this litigation. Id. at 4. The Flores Agreement requires the federal government to "place each detained minor in the least restrictive setting appropriate to the minor's age and special needs" and "to treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors." Id. at 7. It also requires that "[w]here the [government] determines that the detention of the minor is not required either to secure his or her timely appearance before the [government] or the immigration court, or to ensure the minor's safety or that of others, the [government] shall release a minor from its custody without unnecessary delay." Id. at 9–10. In order of preference, the government is required to release the minor to a parent, a legal guardian, an adult relative, another adult designated by a parent or legal guardian, a licensed program, or another adult individual "when it appears there is no other likely alternative ... and family reunification does not appear to be a reasonable possibility." Id. at 9.

In 2002 the Homeland Security Act ("HSA") transferred a number of INS's immigration responsibilities to DHS, including to USCIS, CBP, and ICE. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. The Office of Refugee Resettlement (ORR) within the Department of Health and Human Services (HHS) was tasked with caring for children lacking "lawful immigration status in the United States" for whom "there is no parent or legal guardian in the United States; or ... no parent or legal guardian is available to provide care and physical custody." 6 U.S.C. § 279(a)(b), (g). These minors are referred to as unaccompanied alien children or "UACs." See id. The Trafficking Victims Protection Reauthorization Act, passed in 2008 reaffirmed ORR's responsibilities in caring for UACs. See 8 U.S.C. § 1232(a)(1). Provisions of the TVPRA, as amended, codify the Flores Agreement's requirements that UACs in ORR custody "shall be promptly placed in the least restrictive setting that is in the best interest of the child," ideally with "a suitable family member" but also with an organization if no family member is available. Id. § 1232(c)(2)(A). A UAC can...

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