Wilbur P.G. v. United States

Wilbur P.G, et al., v. United States, No. 4:21-cv-44657 (N.D. Cal., filed June 10, 2021)

Plaintiffs are three families who were separated at the Arizona border in May 2018 under the Department of Justice’s Zero Tolerance policy. The parents were separated from their children while in Customs and Border Protection (CBP) custody, under the guise of pursuing criminal prosecutions against the parents. Two parents were never criminally prosecuted, while the other parent was prosecuted for illegal entry—a misdemeanor—and served a three-day sentence in criminal custody.

After separating the children from their parents, CBP officers transferred the plaintiff children to the custody of the Office of Refugee Resettlement (ORR). The families were separated for weeks. While detained, one parent sustained lasting physical injuries after being denied medical attention. One of the children was sexually abused while in ORR custody.

The families sued under the Federal Tort Claims Act to recover damages caused by the separation itself, as well as the physical and emotional injuries suffered by various plaintiffs during their time in detention.

Plaintiffs filed suit on June 10, 2021 in the Northern District of California. On January 5, 2022, Defendant United States filed a motion to transfer the case to the District of Arizona. Defendants also moved to dismiss the case for lack of subject matter jurisdiction. On May 10, 2022, the district court denied Defendant’s motion to transfer and motion to dismiss. On May 24, 2022, Defendant filed its answer to the complaint; Defendant later amended the answer on July 29, 2022.

Documents:

Counsel: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area | Keker, Van Nest & Peters

Contact: Victoria Petty | vpetty@lccrsf.org

Press:

Note: Other family separation cases filed in California include:

  • I.T. v. United States, 4:22-cv-5333 (N.D. Cal., filed Sept. 20, 2022);
  • J.R.G. and M.A.R. v. United States, 4:22-cv-5183 (N.D. Cal., filed Sept. 12, 2022);
  • Rodriguez v. United States, 2:22-cv-2845 (C.D. Cal., filed Apr. 28, 2022);
  • A.F.P. v. United States, 1:21-cv-780 (E.D. Cal., filed May 14, 2021);
  • Nunez Euceda v. United States, 2:20-cv-10793 (C.D. Cal., filed Nov. 25, 2020).

Other family separation cases filed in district courts in other states:

  • F.C.C. v. United States, 2:22-cv-5057 (E.D.N.Y., filed Aug. 25, 2022);
  • W.P.V. v. Cayuga Home for Children, Inc. and United States, 1:21-cv-4436 (S.D.N.Y., filed May 17, 2021);
  • C.D.A. v. United States, 5:21-cv-469 (E.D. Pa., filed Feb. 1, 2021);
  • R.Y.M.R v. United States, 1:20-cv-23598 (S.D. Fla., filed Aug. 28, 2020);
  • D.J.C.V. v. United States, 1:20-cv-5747 (S.D.N.Y., filed July 24, 2020).

For a list of District of Arizona family separation cases, consult the entry on C.M. v. United States.

A.F.P. and J.F.C. v. United States of America

A.F.P. and J.F.C. v. United States of America, No. 1:21-cv-780 (E.D. Cal., filed May 14, 2021)

Plaintiff A.F.P. and his fifteen-year-old son J.F.C., both citizens of Honduras, approached Border Patrol agents near McAllen, Texas to seek asylum. Instead, Border Patrol agents separated J.F.C. from his father and detained both in a holding facility, often referred to as a hielera or “ice box” for its freezing cold temperatures. The hielera was cold and cramped, and the food provided was frozen and expired.

The two were only permitted to speak to each other for 30 minutes per day. Three days after the two were taken into custody, A.F.P. was charged with illegal entry and taken to federal criminal court. During A.F.P.’s court hearing, CBP and ICE officers designated J.F.C. as an unaccompanied minor, transferred his custody to the Office of Refugee Resettlement (ORR) and moved him to a facility in New York. When A.F.P. returned to the detention center, his son was gone. The officers did not advise A.F.P. of the reason or destination of his son’s transfer.

In New York, J.F.C. resided at the Children’s Village facility, where he was not allowed to communicate with his father, was denied medical care, and was subject to emotional abuse. As a result of this neglect, J.F.C. suffers from hearing loss from an untreated ear infection and severe memory problems because of the trauma he experienced.

During this time, A.F.P. was held in ICE detention in Texas, where he had an interview with an asylum officer and was told he had a credible asylum case. After officers at the detention center put A.F.P. in touch with a notary public who led him to believe that pursuing his asylum case would keep him from reuniting with his son, A.F.P. withdrew his asylum application at his hearing in front of an immigration judge. He was then transferred to maximum security prisons and deported a month later. He was separated from his son for almost fifteen months. A human rights organization later helped A.F.P. lawfully re-enter the U.S. and reunite with J.F.C.

Plaintiffs filed suit against the federal government in the Eastern District of California, seeking damages under the Federal Tort Claims Act (FTCA) for intentional infliction of emotional distress, abuse of process, negligence as to family separation, and negligence. Defendant United States moved to dismiss the claims and moved to transfer the case to the Southern District of Texas. On July 11, 2022, the court dismissed Plaintiffs’ negligence cause of action regarding J.F.C.’s time in ORR custody as barred by the independent contractor exception to the FTCA’s waiver of sovereign immunity.  On July 26, 2022, Defendant filed its answer to the remaining claims.

Documents:

Counsel: Morgan, Lewis & Bockius L.L.P.

D.A. v. United States

D.A., et al., v. United States of America, et al., No. 1:20-cv-03082 (N.D. Ill., filed May 22, 2020), and No. 3:22-cv-295 (W.D. Tex., transferred Aug. 24, 2022)

On the night of May 23, 2018, D.A. and A.A. entered the United States with their mother, Lucinda Padilla-Gonzales, seeking asylum from political violence in their native Honduras, along with other asylum seekers. Shortly after crossing the U.S. border, several U.S. Customs and Border Protection (CBP) officers approached the group and arrested them. The CBP officers loaded the group into a van without offering them food or water. They insulted Lucinda and her children, calling them liars and telling them that they were tired of immigrants, and questioned their motives for coming to the United States. The CBP officers also told the group that they would all lose their children.

CBP officers took Lucinda and her children to the Ysleta Port of Entry in El Paso, Texas. The type of holding center they were taken to is commonly referred to by asylum seekers as a “hielera” (an “icebox,” in Spanish) because of the freezing cold temperatures. D.A. and A.A., who were still wet from crossing the river, were forced to sit, shivering, on concrete steps in the hielera. CBP officers did not give them any blankets or jackets to protect them from the cold while they waited. Though Lucinda had crutches for her injured leg, CBP officers confiscated them. The family remained in the hielera for approximately one and a half days, during which time CBP officers repeatedly insulted them.

On or around May 24, 2018, federal agents took Lucinda and told her that she was going to federal prison. The federal agents did not give Lucinda an opportunity to explain anything to D.A. and A.A., or hug and kiss them goodbye. As the federal agents took Lucinda away in handcuffs, fourteen-year-old D.A. and five-year-old A.A. screamed and cried for their mother through a plexiglass divider.

Lucinda and the children remained separated for almost three months. Both the mother and the children were mistreated in government custody, exacerbating the trauma of their separation. The family filed administrative claims for damages under the Federal Tort Claims Act (FTCA) to which the government failed to respond.

In this action, filed on May 22, 2020, the family seeks damages under the FTCA for the trauma they suffered and continue to suffer. They also brought claims against the government contractor responsible for the care and custody of the children, Heartland Alliance. The complaint alleges that the United States is liable for intentional infliction of emotional distress, breach of fiduciary duty, negligence, negligent supervision, conversion, abuse of process, and loss of consortium, and that Heartland Alliance is liable for breach of fiduciary duty, negligence, negligent supervision, and violation of the Rehabilitation Act. On September 30, 2020, Plaintiffs filed their first amended complaint. On October 16, 2020, both the federal Defendants and the Heartland Alliance Defendants separately moved to dismiss. Briefing was completed in December 2020. On May 18, 2021, Plaintiffs filed an unopposed motion to stay the proceedings for 60 days for the parties to pursue settlement. As such, the court struck the motions to dismiss with leave to reinstate should settlement negotiations fail. On July 19, 2021, Plaintiffs and Defendant United States jointly requested that the stay be extended until September 17, 2021. However, Plaintiffs requested that the stay of their claims against Defendant Heartland Alliance be lifted and that Heartland Alliance’s pending motion to dismiss be reinstated.

In November 2021, Plaintiffs reached a settlement with Defendant Heartland Alliance, and dismissed Heartland Alliance from the case. On January 18, 2022, the stay of Defendant United States’ motion to dismiss was lifted. On August 24, 2022, the court transferred the case to the Western District of Texas without ruling on the merits of the pending motion to dismiss. As of November 2022, Defendant United States’ motion to dismiss remains pending in the Western District of Texas. 

Documents:

Counsel: Loevy & Loevy; Asylum Seeker Advocacy Project (ASAP)

 Contact: Conchita Cruz | (305) 484-9260 | conchita.cruz@asylumadvocacy.org

C.M., et al., v. United States

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.

Documents:

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).