C.M., et al., v. United States, No. 2:19-cv-05217-SRB (D. Ariz., filed Sept. 19, 2019)

On September 19, 2019, five asylum-seeking mothers and their children filed a lawsuit for money damages for the trauma they suffered when torn apart under the Trump Administration’s family separation policy. Each family was fleeing persecution in their country of origin. Instead of finding safety in the United States, the government forcibly took the children from their mothers and then left them in the dark about where they were taken and when—if ever—they would see each other again. The mothers and their children suffered greatly during the separations, which in some cases lasted for months. For example:

• An eight-year-old girl is still unable to sleep unless her mother holds her.
• A seven-year-old boy separated from his mother for more than two months refuses to talk about his time in a New York shelter and is reluctant to eat.
• A 14-year-old boy refuses to discuss the separation or his time in detention and experiences outbursts of inexplicable anger.
• A six-year-old girl has nightmares about her experience and often screams out to her mother in the night seeking protection from people who might separate them again.
• An eight-year-old boy shows constant signs of fear when he is apart from his mother, especially when his mother takes him to school.

On February 11, 2019, the families filed administrative claims under the Federal Tort Claims Act (FTCA). When the government failed to respond, they brought suit. The complaint charges the government with intentionally inflicting emotional pain and suffering on these families in order to deter other Central Americans from seeking asylum in the United States. The complaint also alleges negligence.

On March 30, 2020, the district court denied the government’s motion to dismiss, finding that neither the due care exception nor the discretionary function exception to liability under the FTCA barred the claims. The government moved the court to certify its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Briefing on that motion was completed on June 19, 2020. On July 6, 2020, the court denied the government’s motion. Discovery is ongoing. The court has resolved several discovery disputes in Plaintiffs’ favor, including rejecting the government’s claim that records and deposition testimony related to the government’s 2017 planning to separate families was unrelated to the 2018 family separations. On July 14, 2022, the Court denied the government’s motions to consolidate policy-level discovery in C.M. with related family separation cases in the district.

On December 14, 2022, Plaintiffs filed a motion for sanctions arising from the Defendant’s production of thousands of documents after the close of fact discovery resulting in Plaintiffs’ inability to review them to determine who to depose or what to cover during the vast majority of the fact depositions. The court granted Plaintiffs’ motion in part in August 2023.

Plaintiffs and Defendant filed cross-motions for summary judgment on March 9, 2023. Oral arguments were heard June 13, 2023. On October 24, the court denied Defendant’s motion for summary judgment, finding that Plaintiffs’ claims were not barred under the discretionary exception to FTCA liability and that those claims were not institutional torts not authorized under the FTCA. The court granted in part Plaintiffs’ motion for summary judgment, finding that Defendants did owe Plaintiffs a duty of care. The rest of the issues remain pending.

The court scheduled a bench trial to begin on April 23, 2024, on the question of liability only. The parties noted that settlement discussions were ongoing as of February 27, 2024.

Documents:

• Complaint
• Motion to Dismiss
• Opposition to Motion to Dismiss
• Reply in Support of Motion to Dismiss
• Order Denying Motion to Dismiss
• Answer
• Motion for Certification for Interlocutory Appeal
• Opposition to Certification
• Reply in Support of Certification
• Order Denying Certification
• Plaintiffs’ Reply in Support of Motion to Compel
• A.I.I.L. Order Denying Motion to Consolidate Cases for Common Policy-Based Discovery Only
• Motion for Sanctions
• Plaintiffs’ Motion for Partial Summary Judgment
• Plaintiffs’ Statement of Undisputed Facts
• Defendant’s Motion for Summary Judgment
• Defendant’s Statement of Undisputed Facts
• Defendant’s Opposition to Partial Summary Judgment
• Defendant’s Response to Plaintiffs’ Facts
• Plaintiffs’ Opposition to Summary Judgment
• Plaintiffs’ Response to Defendant’s Facts
• Order Granting in Part and Denying in Part Motion for Sanctions
• Order Denying Defendant’s Motion for Summary Judgment and Granting in Part Plaintiff’s Motion for Summary Judgment

Counsel: The American Immigration Council, the National Immigrant Justice Center, Arnold & Porter, the National Immigration Litigation Alliance, and Kairys, Rudovsky, Messing, Feinberg & Lin.

Contact: Emma Winger | American Immigration Council | 202-507-7512  | ewinger@immcouncil.org

Press: Maria Sacchetti, Lawyers for migrants say U.S. officials slowed family reunifications, Wash. Post. (June 8, 2022, 12:07 AM).

Note: Other cases involving family separation in the District of Arizona are

• M.S.E. v. United States, 2:22-cv-1242 (D. Ariz., filed July 25, 2022);
•  E.C.B. v. United States, 2:22-cv-915 (D. Ariz., filed May 27, 2022);
• J.P. v. United States, 2:22-cv-683 (D. Ariz., filed Apr. 25, 2022);
• F.R. v. United States, 2:21-cv-339 (D. Ariz., filed Feb. 25, 2021);
• B.A.D.J. v. United States, 2:21-cv-215 (D. Ariz., filed Feb. 8, 2021); 
• E.S.M. v. United States, 4:21-cv-00029 (D. Ariz., filed Jan. 21, 2021);
• Fuentes-Ortega v. United States, 2:22-cv-449 (D. Ariz., filed Nov. 17, 2020).

Other cases involving family separation filed in the District of New Mexico include:

• A.E.S.E v. United States, 2:21-cv-569 (D.N.M., filed Jun. 18, 2021);
• S.E.B.M. v. United States, 1:21-cv-95 (D.N.M., filed Feb. 5, 2021).