W.S.R. v. Sessions, Nos. 18 C 04265

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Honorable Edmond E. Chang, United States District Judge
• Citation: 318 F.Supp.3d 1116
• Decision Date: 09 July 2018
• Docket Number: 18 C 04291,Nos. 18 C 04265
• Parties: W.S.R. and C.D.A., Plaintiffs, v. Jefferson B. SESSIONS III, Attorney General of the United States, et al., Defendants.

318 F.Supp.3d 1116

W.S.R. and C.D.A., Plaintiffs,
v.
Jefferson B. SESSIONS III, Attorney General of the United States, et al., Defendants.

Nos. 18 C 04265
18 C 04291

United States District Court, N.D. Illinois, Eastern Division.

Signed July 9, 2018

318 F.Supp.3d 1119

Susan Trudeau, Chicago, IL, pro se.

Mike Sheppard, Sierra Blanca, TX, pro se.

W.S.R., pro se.

MEMORANDUM OPINION AND ORDER

Honorable Edmond E. Chang, United States District Judge

In two separate cases, minors W.S.R. and C.D.A. challenge the placement decisions of the United States government after the boys (who are not related to one another) were forcibly separated from their fathers shortly after the father-son pairs crossed the United States-Mexico border in May 2018. W.S.R. R. 14, W.S.R. Am. Compl.; C.D.A. R. 10, C.D.A. Am. Compl.¹ Both W.S.R. and C.D.A. filed motions for a temporary restraining order, W.S.R. R. 18-2, W.S.R. Mot. TRO; C.D.A. R. 15-2, C.D.A. Mot. TRO, and after holding a hearing, the Court granted the motions as to one type of relief, but converted the motions into a preliminary-injunction motion with an expedited briefing schedule as to the other types of relief sought by W.S.R. and C.D.A. W.S.R. R. 21, C.D.A. R. 16, 6/29/18 Order. For the reasons discussed below, Plaintiffs' motion for a preliminary injunction is granted in part and denied in part. The government must reunify

318 F.Supp.3d 1120

W.S.R. and C.D.A. with their respective fathers within 72 hours of the posting of this Opinion on the docket. The government also must not remove the fathers from the country without their sons. But the other requests for relief, including ordering the release of their fathers from immigration detention, are denied.

I. Background

A. W.S.R.

W.S.R. turned 16 years old last week and is a citizen of Brazil. W.S.R. R. 18, Exh. A, [redacted] Decl. ¶ 2. His father is [redacted], a former resident of Ipatinga, Minas Gerais, Brazil. Id. ¶ 1. In May 2018, [redacted] and W.S.R. fled Brazil in order to request asylum in the United States. Id. ¶¶ 18-20. For the five months before entering the United States, [redacted] and W.S.R. lived together in Brazil, and fled because they were being targeted with death threats by a drug trafficker who lived in their neighborhood. Id. ¶¶ 5-9. [redacted] and W.S.R. attempted to relocate within Brazil, but still did not feel safe and feared for their lives. Id. ¶¶ 10-11. [redacted] feared seeking police protection because of allegedly rampant corruption in the Brazilian police force. Id. ¶ 12. [redacted] alleges that he and W.S.R. cannot evade the drug trafficking network anywhere in Brazil, and if they return to Brazil, they will be killed. Id. ¶¶ 13-15. [redacted] did not tell W.S.R. every detail about the threats because [redacted] did not want to worry his son. Id. ¶ 16.

On May 23, 2018, [redacted] and W.S.R. allegedly tried to present themselves at a port of entry at the United States border to seek asylum, but were told that the port of entry was closed. [redacted] Decl. ¶¶ 19-20. [redacted] and W.S.R. then entered the United States outside of a port of entry and were stopped by Customs and Border Patrol (CPB) officers. Id. ¶ 20. Two days later, on the night of May 25, a guard told [redacted] he was being transferred to a jail and that W.S.R. would be separated from him for two or three days, or at most five. Id. ¶ 22. W.S.R. cried a lot when he learned of the separation. Id. ¶ 23. Father and son have not seen each other since that day.

B. C.D.A.

The other plaintiff in this case is C.D.A. He is 9 years old and a citizen of Brazil. C.D.A. R. 18, Exh. A, [redacted] Decl. ¶ 2. His father is [redacted], a former resident of Capitão Andrade, Minas Gerais, Brazil. Id. ¶ 1. [redacted] borrowed $8,000 from a loan shark in Brazil in order to get to the United States. Id. ¶ 3. The loan shark belongs to a large group of human traffickers. Id. ¶¶ 3, 6. According to [redacted], the human traffickers are part of a large criminal organization in Brazil, and the organization also runs a drug trafficking operation. Id. ¶ 10. Back when [redacted] was a teenager, he refused to join the operation and the drug traffickers attacked him and burned him with a hot knife. Id. ¶¶ 7-9. He alleges that if he and C.D.A. return to Brazil, they will be forced into indentured servitude or killed. Id. ¶¶ 11-16.

Like W.S.R. and his father, C.D.A. and [redacted] allegedly tried to present themselves at a port of entry on May 23, 2018, but were told that the port was closed. [redacted] Decl. ¶ 17. That same day, they crossed outside of a port of entry and were detained. Id. ¶¶ 18-19. Two days later, a guard told [redacted] that the guard was taking C.D.A. to a facility for children, but that they would be separated for no more than five days. Id. ¶ 21. C.D.A. had never been separated from both his mother and father, and cried when [redacted] said that they would be apart for three days, five days at the most. Id. ¶ 22. The two have not seen each other since.

318 F.Supp.3d 1121

C. After the Separation

After being separated from their sons, both [redacted] and [redacted] were transferred to detention facilities in New Mexico where they were jailed—without knowing where their sons were being held. [redacted] Decl. ¶ 24; [redacted] Decl. ¶ 26. Both fathers appeared in court on a misdemeanor charge of entering the United States illegally. W.S.R. Mot. TRO at 5; [redacted] Decl. ¶¶ 24-25; C.D.A. Mot. TRO at 5. Both pled guilty. W.S.R. Mot. TRO at 5; see [redacted] Decl. ¶ 25; [redacted] Decl. ¶¶ 24-25. [redacted] was allegedly never allowed to address the court or explain that the port of entry was closed, and was sentenced to time served. [redacted] Decl. ¶¶ 25-26. [redacted] appeared in court in a group of around two dozen others who were also charged with unlawful entry. [redacted] Decl. ¶¶ 24-25. He pled guilty and received time served. See id. ¶ 25.

After pleading guilty and receiving time-served sentences, both [redacted] and [redacted] were returned to Immigration and Custom Enforcement's (ICE) custody and are now detained at separate detention centers in New Mexico. [redacted] Decl. ¶¶ 27-28; W.S.R. Mot. TRO at 3; [redacted] Decl. ¶¶ 28-29. Meanwhile, both W.S.R. and C.D.A. were placed in the custody of the Department of Health and Human Services (HHS), specifically its Office of Refugee Resettlement (ORR). W.S.R. Am. Compl. ¶ 62; W.S.R. Mot. TRO at 3; C.D.A. Am Compl. ¶ 64; C.D.A. Mot. TRO at 3. ORR placed the boys at the Heartland International Children's Rescue Center (Heartland) in Chicago, Illinois, where they remain, separated from their fathers. W.S.R. Am. Compl. ¶ 62; W.S.R. Mot. TRO at 3; C.D.A. Am Compl. ¶ 64; C.D.A. Mot. TRO at 3.

On June 15, 2018—after three weeks of separation—[redacted] was allowed to speak to W.S.R. on the phone for the first time since the separation. [redacted] Decl. ¶ 29. W.S.R. was upset and told [redacted] that he did not think he would ever see him again. Id. ¶ 30. Sometime in around early June 2018, [redacted] spoke to C.D.A. for the first time since being separated. [redacted] ¶ 27. The conversation was a brief one over the telephone. Id. During the week of June 18, [redacted] had a second telephone conversation with C.D.A. Id. ¶ 31. C.D.A. said that he did not want anyone to go through what he was going through. Id. ¶ 32.

On around June 25, 2018, an ICE officer attempted to get [redacted] to sign a voluntary removal form, but the form was written in the English language, which [redacted] does not understand. See [redacted] Decl. ¶ 35; W.S.R. Mot. TRO at 6. [redacted] refused to sign it. See [redacted] Decl. ¶ 35; W.S.R. Mot. TRO at 6. The parties reported during the July 5, 2018 hearing that [redacted] has not yet been interviewed to determine whether he has a credible fear of persecution as part of his asylum claim. [redacted] did undergo a credible-fear interview, and received a negative finding. C.D.A. Mot. TRO at 3. An immigration judge has not yet reviewed that finding. Id.

D. Preliminary Injunction in Ms. L. II

On June 26, 2018, the District Court for the Southern District of California issued a class-wide injunction requiring the government to reunite minor children under the age of five with their parents by July 10 and those five and over by July 26. Ms. L. v. U.S. Immigration & Customs Enf't , 310 F.Supp.3d 1133, 1149–50, 2018 WL 3129486, at *12 (S.D. Cal. June 26, 2018) ( Ms. L. II ). [redacted] and [redacted] are members of the Ms. L. class. W.S.R. R. 30, C.D.A. R. 27, Gov't Resp. Br. at 2. Class members may not be removed from the United States without their children.

318 F.Supp.3d 1122

Ms. L. II , 310 F.Supp.3d at 1149–50, 2018 WL 3129486, at *12. On June 29, 2018, this Court entered the same non-removal limit, prohibiting the government from removing either [redacted] without W.S.R. or [redacted] without C.D.A. 6/29/18 Order at 2.

II. Analysis

A preliminary injunction is "an extraordinary remedy...