Category Archives: Family Separation

K.O. and E.O. Jr., v. United States

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K.O. and E.O. Jr., v. United States, No. 4:20-cv-12015 (D. Mass., filed Nov. 9, 2020)

Plaintiffs nine-year-old K.O. and her older brother, seventeen-year-old E.O. Jr., were forcibly separated by CBP agents from their mother upon entry to the United States, during the Trump administration’s “Zero Tolerance Policy.” Plaintiffs brought a class action lawsuit against the Department of Homeland Security, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), and the Department of Health and Human Services (HHS), among other federal agencies. The Plaintiffs allege claims under the Federal Tort Claims Act, asserting common law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery, negligent supervision, tortious interference with parent-child relationship, and loss of consortium.

On May 19, 2018, plaintiffs K.O. and E.O., along with their mother, entered the U.S. at the southern border to seek asylum from violence and persecution in Guatemala. They were apprehended by a Customs and Border Protection (CBP) agent and forcibly separated from their mother. The mother was never charged with a crime. CBP agents also called the father and told him his children were in custody, separate from their mother, and would be placed in the custody of the Office of Refugee Resettlement (ORR).

As the father began the ORR reunification process, the children were reunited and placed back into an ICE facility where they were detained in separate cells that faced each other. They spent two days there and were not allowed to speak with each other. They only had access to thermal blankets. Plaintiffs allege that there was no supervision, no support for children as young as two or three years of age, and the guards physically and verbally abused the children. After two days, ICE agents told the children their mother had been deported. The children were then transferred to ORR facilities in Michigan and were once again separated from each other. One child was placed in an ORR foster care home and the other was placed in an ORR group home. The children were eventually reunited with their father on June 19, 2018. Meanwhile, the mother remained detained in Texas and was unable to contact her husband. After she passed her credible fear interview, she was released on June 28, 2018. The children were separated from their father for 31 days, and their mother for 38 days.

Similarly, Plaintiff C.J., was eleven years old when CBP separated him from his father after travelling to the United States to seek asylum from persecution in Guatemala. They were separated for a total of 36 days. In addition to the trauma from the forcible separation, C.J. was assaulted by another child while he was detained in an ORR facility. 

Plaintiffs seek damages and to establish a fund for the mental health treatment of all class members that were forcibly separated from their parents.  

Plaintiffs filed their complaint on November 9, 2020. On February 28, 2022, Defendants filed a motion to transfer the case to Western District of Texas or in the alternative dismiss for lack of subject matter jurisdiction. The district court held that change of venue was not warranted and denied the motion to transfer. The court also granted the motion to dismiss in part and denied it in part. All claims brought by the parents in their personal capacities were dismissed. Any claims of negligent supervision or negligence in causing the family separation were dismissed. All other claims remain.

Plaintiffs filed an amended complaint on April 11, 2022. On May 10, 2022, Defendants filed a motion to transfer or alternatively a motion to dismiss the amended complaint. On January 9, 2023, the court reiterated its decision denying the transfer and granting and denying in part the motion to dismiss.

Documents:

Counsel: Todd & Weld LLP, Demissie & Church, The Law Offices of Jeff Goldman, Nixon Peabody LLP, Lawyers for Civil Rights

Contact:  Iván Espinoza-Madrigal, Lawyers for Civil Rights, iespinoza@lawyersforcivilrights.org

Wilbur P.G. v. United States

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Wilbur P.G, et al., v. United States, No. 4:21-cv-04457 (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. As of February 2023, discovery is ongoing.

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

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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. As of February 2023, discovery is currently underway.

Documents:

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

D.A. v. United States

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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

A.I.I.L. et al. v. Sessions et al.

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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:

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

C.M., et al., v. United States

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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 has not ruled on Plaintiffs’ motion for sanctions.

Plaintiffs and Defendant filed cross-motions for summary judgment on March 9, 2023. Briefing will be complete by the end of May. Oral argument is scheduled for June 13, 2023.

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).