M.G.U. v. Nielsen

316 F. Supp. 3d 518
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 16, 2018
DocketCivil Action No. 18-1458 (PLF)
StatusPublished
Cited by2 cases

This text of 316 F. Supp. 3d 518 (M.G.U. v. Nielsen) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.G.U. v. Nielsen, 316 F. Supp. 3d 518 (D.C. Cir. 2018).

Opinion

PAUL L. FRIEDMAN, United States District Judge

Two months ago, plaintiff E.F. and her nine-year-old son fled threats of violence in Guatemala to pursue asylum in the United States. After crossing the U.S.-Mexico border on May 14, 2018, they were initially detained together, but then forcibly separated the next day and detained in facilities hundreds of miles apart. Ms. E.F. has not seen her son since then.

On June 20, 2018, Ms. E.F. and two other parents who had also been separated from their children filed this civil action. On June 26, 2018, they moved for a preliminary injunction seeking immediate reunification with their children. The Court set an expedited briefing schedule and held a hearing on July 12, 2018. At the hearing, counsel for Ms. E.F. represented that Ms. E.F. was awaiting a decision on the review of her negative credible fear determination by an immigration judge. Counsel for defendants explained that if the immigration judge were to affirm the negative credible fear determination and deny Ms. E.F.'s *520asylum application, she would be subject to a final order of removal. The order of removal would leave her at risk of being immediately removed from the United States without her son before this Court has an opportunity to resolve the pending motion for a preliminary injunction. At the hearing, counsel for Ms. E.F. orally moved for an order prohibiting defendants from removing Ms. E.F. from the United States without her son prior to the Court's decision on her preliminary injunction motion.

After the hearing, on July 13, 2018, defendants informed the Court that an immigration judge had affirmed Ms. E.F.'s negative credible fear determination. See July 13, 2018 Status Report [Dkt. No. 39]. As a result, Ms. E.F. is now subject to a final order of removal. Defendants have not provided a timeline for when her removal from the United States might take place, but they have voluntarily agreed to stay Ms. E.F.'s removal until tomorrow, July 17, 2018. See id. Defendants have provided no assurance that Ms. E.F. and her nine-year-old son will be reunited before Ms. E.F. is removed from the country.

What deeply troubles the Court at this stage is the risk that Ms. E.F. will be removed from the United States without her young son and without her valid consent to be removed without her son, before the Court has an opportunity to rule on her preliminary injunction motion seeking immediate reunification with him. The recent representations made by the United States in the class action pending before Judge Dana M. Sabraw in federal court in San Diego only heighten this concern. See Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 104, at 4-5 (S.D. Cal. July 12, 2018) (confirming that twelve immigrant parents have been removed without their children thus far). Immediate reunification will be impossible if Ms. E.F. is removed from the United States while her son remains detained here. And defendants have declined to commit to keeping Ms. E.F. in the United States until after the Court rules on the preliminary injunction motion.

In light of the urgent need to preserve the status quo until after the Court has made a determination on the merits of Ms. E.F.'s preliminary injunction motion, the Court will construe her lawyer's oral motion for an order that she not be removed from the country before she is reunited with her son, as a motion for a temporary restraining order. See Barrow v. Graham, 124 F.Supp.2d 714, 715-17 (D.D.C. 2000) ; see also Nw. Forest Workers Ass'n v. Lyng, No. 87-1487, 1988 WL 268171, at *2-3 (D.D.C. June 29, 1988) (granting interim relief not to deport or institute deportation proceedings against seasonal agricultural workers pending adjudication of plaintiffs' claims). And upon consideration of the arguments made by counsel in their briefs and in open court, as well as the entire record in this case, the Court will grant Ms. E.F.'s motion for a temporary restraining order.

The purpose of a temporary restraining order is to preserve the status quo for a limited period of time until the Court has an opportunity to pass on the merits of the demand for a preliminary injunction. See, e.g., Barrow v. Graham, 124 F.Supp.2d at 715-16 (citing Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1125 (2d Cir. 1989) and Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982) ). While the Court must still consider the traditional four-part test for injunctive relief even at the temporary restraining order stage, the short duration of such an order and the imminence of the harm may justify the grant of a temporary restraining order to preserve the status quo. See Barrow v. Graham, 124 F.Supp.2d at 716-17.

*521For purposes of this motion, it suffices to say that Ms. E.F. likely will succeed on the merits of her substantive due process claim. The Supreme Court has made clear that parents have a liberty interest in family association or family integrity, and in the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). At this stage, Ms. E.F. is likely to succeed on her claim that her continued forcible separation from her young child absent a determination that she is either unfit or presents a danger to her child, violates due process. See Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, 2018 WL 3129486, at *7-9 (S.D. Cal. June 26, 2018) ; see also Memorandum Opinion and Order,

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Bluebook (online)
316 F. Supp. 3d 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mgu-v-nielsen-cadc-2018.