A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481 (D. Ariz., filed Oct. 3, 2019)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Department of Justice, the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), and Health and Human Services (HHS)/Office of Refugee Resettlement (ORR).

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss.

On September 3, 2020, Plaintiffs filed their amended complaint. In February 2021, Defendants moved to dismiss the amended complaint for lack of jurisdiction, failure to state a claim, and on qualified immunity grounds.

On May 20, 2021, Plaintiffs sought a stay of the action to facilitate further settlement discussions in hopes of resolving their FTCA claims against the United States. The individual Defendants objected to the stay of the individual-capacity claims. The court lifted the abeyance on January 7, 2022.

On March 31, 2022, the court granted Defendants’ motion to dismiss all claims except for the FTCA claims of four of the five Plaintiff families. With respect to the FTCA claims, the court held, among other things, that those claims were not barred by the discretionary function or due care exceptions to the FTCA. With respect to the dismissed constitutional claims brought under Bivens, the court held, among other things, that special factors counseled against extending Bivens to a new context that challenged high level policy decisions. On July 14, 2022, the court denied the government’s motions to consolidate policy-level discovery in A.I.I.L. with related family separation cases in the district.

On July 15, 2022, the individual Defendants filed a Rule 54(b) motion for the entry of a final judgment as to the claims against the individual defendants. On March 31, 2023, the court denied the motion, finding that the dismissed individual claims and the pending FTCA claims raised related issues of fact and law and that two appeal tracks would complicate the case and burden Plaintiffs.

On April 11, 2023, the court transferred the claims of two of the named plaintiffs to the Southern District of Texas, where their separation occurred.

Documents:

• Complaint
• Motion to Dismiss
• Opposition to Motion to Dismiss
• Reply in Support of Motion to Dismiss
• Order Granting Leave to Amend and Denying Motion to Dismiss
• First Amended Complaint
• Individual Defendants’ Motion to Dismiss Amended Complaint
• Government’s Motion to Dismiss Amended Complaint
• Opposition to Individual Defendants’ Motion to Dismiss Amended Complaint
• Opposition to Government’s Motion to Dismiss Amended Complaint
• Reply in Support of Individual Defendants’ Motion to Dismiss Amended Complaint
• Reply in Support of Government’s Motion to Dismiss Amended Complaint
• Order Granting Plaintiffs’ Motion to Hold Action in Abeyance and Staying Proceedings
• Order Granting Plaintiffs’ Second Motion to Hold Action in Abeyance and Staying Proceedings
• Order Granting Plaintiffs’ Third Motion to Hold Action in Abeyance
• Order Granting Plaintiffs’ Motion to Lift Abeyance
• Order Granting Defendants’ Motion to Dismiss Constitutional Claims
• Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss FTCA Claims
• Order Denying Motion to Consolidate Cases for Common Policy-Based Discovery Only
• Order Denying Rule 54(b) Request
• Order Transferring Venue

Counsel: Christine Wee, ACLU of Arizona; Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Stephen Kang, & Spencer Amdur, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Lee Gelernt | ACLU Immigrants’ Rights Project | lgelernt@aclu.org