Ms. L. v. Immigration

• Citation: 302 F.Supp.3d 1149
• Decision Date: 06 June 2018
• Docket Number: Case No.: 18cv0428 DMS (MDD)
• Parties: MS. L.; et al., Petitioners–Plaintiffs, v. U.S IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"); et al., Respondents–Defendants.
• Court: U.S. District Court — Southern District of California

302 F.Supp.3d 1149

MS. L.; et al., Petitioners–Plaintiffs,
v.
U.S IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"); et al., Respondents–Defendants.

Case No.: 18cv0428 DMS (MDD)

United States District Court, S.D. California.

Signed June 6, 2018

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Anand Venkata Balakrishnan, Lee Gelernt, Judy Rabinovitz, ACLU Immigrants Rights Project, New York, NY, Spencer E. W. Amdur, ACLU Immigants' Rights Project, San Francisco, CA, Bardis Vakili, ACLU Foundation of San Diego & Imperial Counties, San Diego, CA, for Petitioners–Plaintiffs.

U.S. Attorney CV, Samuel William Bettwy, U.S. Attorney's Office Southern District of California, San Diego, CA, Sarah B. Fabian, U.S. Department of Justice Office of Immigration Litigation, Nicole N. Murley, U.S. Department of Justice, Washington, DC, for Respondents–Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

Hon. Dana M. Sabraw, United States District Judge

This case involves the Government's alleged practice of separating migrant parents and children held in immigration detention without a showing that the parent is unfit or presents a danger to the minor child. According to Plaintiffs, prior administrations detained migrant families, but did not have a practice of forcibly separating fit parents from their young children. Plaintiffs allege there are reports the Government may soon adopt a formal national policy of separating migrant families, and placing the children in government facilities for "unaccompanied minors" to deter others from coming to the United States. The Government denies it has a family separation policy and concedes such a policy would be "antithetical to the child welfare values" imposed on government actors responsible for the care and custody of migrant children who are separated from their parents as a result of the Government's enforcement of criminal and immigration law. Instead, the Government asserts it considers each case on the facts available at the time a placement decision

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is made, and that when separation occurs, it is the result of the Government taking lawful immigration enforcement and detention actions.

Plaintiffs Ms. L. and Ms. C. allege immigration officials separated them from their minor children without determining they were unfit or presented a danger to their children, and that hundreds of other migrant families have been subjected to the same treatment. Plaintiffs, on behalf of themselves and putative class members, allege the conduct at issue violates their due process rights under the Fifth Amendment to the United States Constitution, the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and the Asylum Statute, 8 U.S.C. § 1158.

The Government's alleged practice has garnered the attention of numerous groups interested in child advocacy and welfare, immigration law and constitutional law, as evidenced by the amicus briefs filed in this case. Whether there is such a practice, and if so, whether that practice is lawful, is not presently before the Court. The only issues presently before the Court are whether this Court has jurisdiction to hear the case, whether this Court is the proper venue for the case, and whether Plaintiffs Ms. L. and Ms. C. have alleged sufficient facts and a sufficient legal basis to state a "plausible claim for relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). As explained below, the Court finds it has jurisdiction over the case and venue is proper in this Court. The Court also finds Plaintiffs have set forth sufficient facts and a sufficient legal basis to state a claim that separation from their children while they are contesting their removal and without a determination they are unfit or present a danger to their children violates due process. The Court further finds that Plaintiffs have failed to state a claim under the APA or the Asylum Statute.

I.

FACTUAL BACKGROUND

Plaintiff Ms. L. is a citizen of the Democratic Republic of the Congo. She is Catholic. On November 1, 2017, she and her then 6–year–old daughter S.S. arrived at the San Ysidro Port of Entry seeking asylum based on religious persecution. Ms. L. and her daughter were detained by immigration officials at the border, and housed together until November 5, 2017, at which time immigration officials "forcibly separated" S.S. from her mother and sent S.S. to Chicago—over a thousand miles away—where "she was housed in a detention facility for ‘unaccompanied’ minors run by the Office of Refugee Resettlement [ORR]." (Am. Compl. ¶ 42.) "When S.S. was taken away from her mother, she was screaming and crying, pleading with guards not to take her away from her mother." (Id. ¶ 43.) During their detention and while they were separated, Ms. L. was able to speak with her daughter only "approximately 6 times by phone, never by video." (Id. ¶ 44.) Each time they spoke, S.S. "was crying and scared." (Id. ¶ 43.) Ms. L. was "terrified that she would never see her daughter again." (Id. ¶ 45.)

After being separated from her daughter for nearly four months, Ms. L. filed the present case against numerous governmental entities and individual actors.¹ Five

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days after filing the original Complaint, Ms. L. filed a motion for preliminary injunction and motion to expedite hearing of the motion. Three days later, Ms. L. was "paroled," i.e. , released, from ICE detention. (See infra n.3 (discussing removal proceedings, asylum and parole) ). In response to Ms. L.'s motion to expedite hearing of her motion for preliminary injunction, the Government stated it was attempting to "expeditiously resolve current doubts about whether [Ms. L.] is the mother of S.S. to the satisfaction of [ORR]." (Opp'n to Mot. to Expedite at 1.) That effort involved ORR taking a DNA saliva sample (or swab) from S.S., which it did on March 7, 2018. On March 8, 2018, the Court held a telephonic status conference with counsel, and thereafter ordered the parties to collect a DNA sample from Ms. L. and to complete the DNA testing by March 14, 2018. The testing was completed on March 12, 2018, and established maternity. Four days later, and more than four months after they were separated, S.S. was released to her mother after ORR determined Ms. L. was capable of providing for S.S.'s physical and mental well-being. (See infra n.2 (discussing child welfare provisions relating to immigrant children) ).

While the DNA testing was underway, Ms. L. filed an Amended Complaint that realleges the claims in the original Petition/Complaint with minor modifications, and adds a new Plaintiff, Ms. C. Ms. C. is a citizen of Brazil, and unlike Ms. L., she crossed into the United States with her 14–year–old son J. "between ports of entry[.]" (Mem. of P. & A. in Supp. of Mot. to Dismiss at 5.) Ms. C. and her son were apprehended by U.S. Border Patrol, and Ms. C. explained to the agent they were seeking asylum. (Am. Compl. ¶ 55.) Ms. C. was prosecuted for entering the country illegally, and J. was taken away from her and sent to an ORR facility in Chicago—hundreds of miles away—for "unaccompanied" children. (Id. ¶ 56.) Ms. C. was convicted of misdemeanor illegal entry and served 25 days in federal custody. (Id. ¶ 57.) She completed her sentence on September 22, 2017, and was then taken into ICE detention for removal proceedings and consideration of her asylum claim. She was first held at the El Paso Processing Center before being transferred to the West Texas Detention Center. (Id. ) Ms. C. was released on bond from ICE detention on April 9, 2018, after the Amended Complaint was filed, but she has yet to be reunited with her son. During the five months she was detained, Ms. C. did not see her son, and they spoke on the phone only "a handful of times[.]" (Id. ¶ 58.) Ms. C. "is desperate" to be reunited with her son, "worries about him constantly and does not know when she will be able to see him." (Id. ) "J. has been having a difficult time emotionally since being separated from his mother." (Id. ¶ 59.) Indeed, "[e]very day that J. is separated from his mother causes him greater emotional and psychological harm and could potentially lead to permanent emotional trauma." (Id. ¶ 60.) Plaintiffs allege "[t]he government has no legitimate interest in separating Ms. C. and her child[,]" there has been "no evidence, or even accusation, that J. was abused or neglected by Ms. C.[,]" and "[t]here is no evidence that Ms. C. is an unfit parent or that she is not acting in the best interests of her child." (Id. ¶¶ 61–63.)

Together, Ms. L. and Ms. C. seek to represent the following nationwide class on all of their claims for relief:

All adult parents nationwide who (1) are or will be detained in immigration custody by the Department of Homeland Security,

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and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child.

(Id. ¶ 65.) In their Amended Complaint, Plaintiffs seek, among other things, a preliminary and permanent injunction preventing Defendants from continuing to...