M.G.U. v. Nielsen

325 F. Supp. 3d 111
Court of Appeals for the D.C. Circuit·Decided July 18, 2018·No. Civil Action No. 18-1458 (PLF)·Published·Cited by 14 cases

Opinion

PAUL L. FRIEDMAN, United States District Judge

The matter is before the Court on plaintiffs' motion for a preliminary injunction [Dkt. No. 13], requiring the United States government to immediately reunify plaintiff E.F. with her nine-year-old son, from whom she was forcibly separated shortly after crossing the United States-Mexico border over two months ago. Upon careful consideration of the parties' filings, the relevant legal authorities, the arguments of counsel at a hearing on July 12, 2018, and the entire record in this case, the Court granted plaintiffs' motion by separate Order earlier today. This Opinion explains the reasons for that Order.1

*114I. BACKGROUND

A. Factual History

On April 6, 2018, the Attorney General of the United States announced a "zero-tolerance" immigration policy, under which all immigrant parents unlawfully crossing the United States-Mexico border with their young children would be subject to criminal prosecution and separated from their children. See Compl. Exs. 3 and 4. Following widespread criticism over the separation of immigrant families, on June 20, 2018, the President of the United States signed an Executive Order requiring immigrant parents and their children who are apprehended at the border to remain together during the pendency of their criminal or immigration proceedings, to the extent permitted by law. See Mot. Ex. 1 at Section 3. The Executive Order did not, however, address the reunification of the more than 2,000 children whom the government had already separated from their parents.

Plaintiffs in this action are three immigrant parents who were separated from their young children after crossing the United States-Mexico border prior to the issuance of the Executive Order on June 20, 2018. Subsequent to the filing of this lawsuit, two of the plaintiffs, M.G.U. and A.P.F., were recently reunified with their children after spending many weeks apart. The one remaining plaintiff, E.F., is presently detained in Texas, while her nine-year-old son is detained in New York. Ms. E.F. is being held solely as a civil immigration detainee and not in association with any criminal charge or conviction. There is no evidence suggesting that Ms. E.F. is not the biological mother of her son. Nor is there any suggestion that she is an unfit parent or poses a danger to her son.

Plaintiff E.F. and her son fled threats of violence in Guatemala to pursue asylum in the United States. See Compl. ¶¶ 78, 81. On May 14, 2018, they entered the United States near Presidio, Texas and presented themselves to immigration officials in order to seek asylum. See id. ¶ 81. They were arrested. See id. Although they were initially detained together, they were forcibly separated the next day, on May 15, 2018. See id. ¶ 82. Unbeknownst to Ms. E.F., her son was deemed an "unaccompanied minor" because he had "no parent or legal guardian in the United States ... available to provide care and physical custody." Opp'n at 6-7. As a result, he was transferred to the custody of the Office of Refugee Resettlement ("ORR") and detained in a separate facility. See id. 2

*115Three weeks later on June 6, 2018, Ms. E.F. was convicted at trial of misdemeanor improper entry under 8 U.S.C. § 1325(a) and sentenced to time served. See Compl. ¶¶ 85-86. She was then transferred to immigration detention for removal proceedings and consideration of her asylum application. See Opp'n at 6-7. An immigration officer later made a negative credible fear determination, which an immigration judge affirmed. See July 13, 2018 Status Report. Based on that determination, Ms. E.F.'s asylum application was denied and she is now subject to a final order of removal. See id. Ms. E.F. is currently detained in El Paso, Texas and is awaiting removal. See id.; July 13, 2018 Suppl. Report Ex. 1, Decl. of Ashley N. Martinez at ¶ 2.

Ms. E.F. has not seen her nine-year-old son since May 15, 2018. See Mot. at 2. More than a month after their initial separation, she first learned that her son is in a foster care facility in New York. See TRO Opp'n Ex. 1. She has spoken to her son only a few times over the phone for about five minutes each time. See TRO App. Ex. 2, June 21, 2018 Decl. of E.F. at ¶ 6. Each time they have spoken, "he only cries." See id. ¶ 8. "[H]e only wants to know when he will see me again so it's hard for him to focus on anything else." See id. ¶ 7. During one conversation, he told his mother that he "had a nosebleed" but was "too scared to tell anyone." See id. ¶ 10. Ms. E.F. recalls that "my son used to be such a happy child who was always joking around with me. Now he just seems depressed[.]" See id. ¶ 9. As she explains in her declaration, "I am very worried about my son. Since we were separated, I feel lonely and desperate. I have had trouble eating and sleeping [.]" See Mot. Ex. 5, June 15, 2018 Decl. of E.F. at ¶ 5. She states that "I wake up from my sleep crying because I remember that he was taken from me." See TRO App. Ex. 2, June 21, 2018 Decl. of E.F. at ¶ 18. She urges that "I want to be reunited with my son[.]"See Pl. First Suppl. Ex. 3, July 11, 2018 Decl. of E.F. at ¶ 2.

B. Procedural History

Plaintiffs brought suit on June 20, 2018 against certain federal agencies and officials responsible for enforcing immigration laws and regulations. See Compl. ¶¶ 5-19. In the complaint, Ms. E.F. alleges that her continued separation from her minor son, absent a showing that she is an unfit parent or otherwise presents a danger to her son, violates her substantive due process right to family integrity under the Fifth Amendment to the United States Constitution. See id. ¶¶ 101-04.

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