Father and Son File FTCA Administrative Claims and Subsequent Lawsuit Based on Nine Months of Family Separation

E.L.A. and O.L.C. v. United States of America, No. 2:20-cv-1524, (W.D. Wash., filed Oct. 10, 2020)

On October 9, 2019, an asylum-seeking father, Mr. L.A., and his son, O.L., filed administrative claims for six million dollars in damages for the trauma they suffered when torn apart under the Trump administration’s family separation policy. The family endured nine months of forced separation in 2018 while the father was unlawfully deported to Guatemala, in spite of expressing a credible fear of persecution in that country. On October 15, 2020, after the government neglected to make a final disposition on the administrative claims, Mr. L.A. and his son filed a lawsuit in the Western District of Washington, having exhausted all possible administrative remedies.

While in the custody of the Office of Refugee Resettlement (ORR), at a youth facility called Lincoln Hall in New York, then-17-year-old O.L. was medicated without his parent’s consent in order to “calm” him and dissuade thoughts of escaping from the facility. A Lincoln Hall staff member physically assaulted and insulted O.L.; rather than discipline the offending staff member, facility staff simply transferred O.L. to a different part of the facility. Additionally, Lincoln Hall was in an abusive and sexualized environment. On two separate occasions, staff completed an ORR Serious Incident Report or “Sexual Abuse SIR,” listing O.L. as a victim of sexualized staff actions. During one incident, a staff member showed O.L. and other children in the facility a pornographic video on his phone. In another incident, a staff member dropped a nude photo of herself in front of O.L.

Both Mr. L.A. and his son endured dehumanizing conditions while being held in a hielera prior to and immediately after separation. Mr. L.A. reported freezing temperatures, very limited food, and limited access to drinking water other than from a bathroom sink. At one point, he was packed in a cell with fifteen other men, with no beds and a shared toilet without privacy. As the men were not permitted to shower or brush their teeth, the smell in the cell was horrible. Officers left bright fluorescent lights on at all times, conducted roll-calls even at nighttime, and provided only Mylar emergency blankets for sleeping; as a result, Mr. L.A. reports experiencing sleep deprivation.

Mr. L.A. and his son spoke briefly on the phone only twice while they were detained and before Mr. L.A. was deported. Mr. L.A. was devastated to learn his son had been transported across the country to New York, while he remained detained in Texas. After being detained separately for more than one month, Mr. L.A. received word from officers that he would be reunited with his son. However, they were not reunited; and Mr. L.A. was instead put on a plane and deported to Guatemala.

Both Mr. L.A. and his son report prolonged and lasting effects from their forced separation. Mr. L.A. still experiences nightmares, anxiety, and depression, and also survived an attempt on his life once removed to the country from which he sought asylum. O.L. reports experiencing anxiety and depression in the wake of his detention and time spent separated from his father.

The claim letter charges the government with intentionally inflicting emotional pain on the family and punishing them for seeking asylum in the United States. The claims were filed against the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement, the Department of Health and Human Services, and the Office of Refugee Resettlement. They are brought under the Federal Tort Claims Act, which allows individuals to sue the United States for injuries resulting from unlawful conduct of federal officers.

On January 19, 2021, Defendant moved to transfer the case to the Southern District of Texas and to dismiss two of Plaintiffs’ four claims (abuse of process and negligence). On February 8, 2021, Plaintiffs filed their response and on February 12, 2021, Defendant filed its reply. On July 9, 2021, the Court granted a stipulated motion to hold the case in abeyance while settlement negotiations take place.

As of August 2021, individuals who were subject to the Trump administration’s family separation policy in 2018 who have not yet filed claims or complaints based on their family separation may still be eligible to do so. Please contact Sydney at sydney@nwirp.org if you know of an individual who has not yet filed a claim based on family separation, but who was subject to the 2018 policy.

Documents:

Counsel: Northwest Immigrant Rights Project and Morgan, Lewis, & Brockius, LLP

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org