M.G.U. v. Nielsen
M.G.U. v. Nielsen
Opinion of the Court
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.
*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.
*115Three weeks later on June 6, 2018, Ms. E.F. was convicted at trial of misdemeanor improper entry under
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
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
On June 22, 2018, plaintiffs filed an application for a temporary restraining order requiring defendants, inter alia, to "immediately provide reliable, daily information" about the well-being of their children. See TRO Mot. at 2. After ordering expedited briefing, the Court held a hearing on the TRO application on June 27, 2018. At the hearing, defendants represented that they had provided, or would soon provide, certain information that plaintiffs had requested. The Court therefore held the TRO application in abeyance and suggested *116that the parties meet and confer and provide a joint status report to the Court. The parties provided that joint status report on July 5, 2018 and represented that they had resolved several issues pertaining to the TRO application, but that some matters were still outstanding. On July 16, 2018, the Court granted plaintiffs' TRO application with respect to certain outstanding requests. See July 16, 2018 Mem. Op. & Order Regarding TRO (ordering defendants to "facilitate daily telephone calls" between each plaintiff and his or her child; "facilitate at least one telephone call per week" between each plaintiff and the case manager for each plaintiff's child; and "provide the address for the home or facility" where Ms. E.F.'s child is currently detained).
On June 26, 2018, plaintiffs filed a motion 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. In anticipation of that hearing, plaintiffs filed an emergency motion for expedited discovery on July 3, 2018, which the Court granted in part on July 9, 2018. See July 9, 2018 Mem. Op. & Order (ordering defendants to provide, inter alia, information regarding plans to reunify plaintiffs and their children). Following the hearing, the Court entered an order prohibiting defendants from removing Ms. E.F. from the United States prior to the Court's decision on her preliminary injunction motion and until further order of the Court. See July 16, 2018 Mem. Op. & Order Regarding Removal.
Meanwhile, on June 26, 2018, Judge Dana M. Sabraw of the United States District Court for the Southern District of California issued a class-wide preliminary injunction requiring the government to reunify children under the age of five with their parents by July 10, 2018, and those age five and over by July 26, 2018. See Ms. L. v. U.S. Immigration and Customs Enf't,
II. LEGAL STANDARD
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. NRDC,
*117Before the Supreme Court's decision in Winter v. NRDC, courts weighed these factors on a "sliding scale," allowing "an unusually strong showing on one of the factors" to overcome a weaker showing on another. Damus v. Nielsen,
III. DISCUSSION
Ms. E.F. seeks a preliminary injunction directing defendants to immediately reunify her with her son. For the reasons that follow, the Court finds that the circumstances presented here merit this extraordinary form of relief, and therefore has ordered defendants to reunify Ms. E.F. with her son on or before midnight on Friday, July 20, 2018.
A. Threshold Matters
Before turning to the four preliminary injunction factors, the Court addresses three threshold matters. First, defendants contend that the Court lacks jurisdiction to grant the requested relief because Ms. E.F. has not pled a waiver of sovereign immunity. See Opp'n at 10. Section 702 of the Administrative Procedure Act ("APA"),
Second, defendants assert that neither Ms. E.F. nor her son is in custody within the jurisdiction of this Court. Defendants argue that if Ms. E.F. had sought a writ of habeas corpus, the Court would lack jurisdiction to grant it. See Opp'n at 11. Ms. E.F., however, has not sought a writ of habeas corpus in this action. And the Court has federal-question jurisdiction under
Third, defendants suggest that the motion for a preliminary injunction is subject to a heightened standard, under which Ms. E.F. must "clearly" show that she is entitled to relief or that "extreme or very serious damage" will result from the denial of the injunction. See Opp'n at 8 (quoting Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd.,
The Court now turns to the four preliminary injunction factors.
B. The Four Preliminary Injunction Factors
Upon careful review of the parties' submissions, and in particular, the declarations submitted by Ms. E.F. and several medical experts, the Court concludes that Ms. E.F. easily meets her burden to show likely success on the merits and irreparable harm, and that the balance of equities and the public interest weigh in her favor, thus warranting issuance of a preliminary injunction.
1. Likelihood of Success on the Merits
While plaintiffs seeking a preliminary injunction have the burden of demonstrating likelihood of success on the merits, they are not required to prove their case in full at the preliminary injunction stage, but only such portions that enable them to obtain the injunctive relief that they seek. See Univ. of Texas v. Camenisch,
The Fifth Amendment mandates that no person shall "be deprived of life, liberty, or property, without due process of the law." U.S. CONST. amend. V. Due process protects noncitizens who are on U.S. soil. See Zadvydas v. Davis,
The Supreme Court has made clear that parents have a fundamental liberty interest in family integrity, and in the care, custody, and control of their children. See Troxel v. Granville,
Defendants respond that "the extent of any right that parents may have based in a relationship with their children (or vice versa) necessarily depends on the circumstances of a particular case." Opp'n at 13. According to defendants, because Ms. E.F. is in lawful immigration custody, she is "unavailable to provide care and physical custody" for purposes of the TVPRA, and therefore custody of her son must be transferred to ORR and he must be detained in a separate facility from his mother. See
*120in the least restrictive setting that is in the best interest of the child."
Substantial governmental burdens on family integrity are subject to strict scrutiny review, and they survive only if the burden is narrowly tailored to serve a compelling state interest. See Goings v. Court Servs. & Offender Supervision Agency,
There is no question that defendants have directly and substantially burdened Ms. E.F.'s right to family integrity. Defendants have continued to detain Ms. E.F. and her son in separate facilities for many weeks with only periodic phone calls. See Jordan by Jordan v. Jackson,
While the need to protect children from unfit parents is a well-recognized compelling reason for burdening family integrity, defendants must make at least some showing of parental unfitness in order to establish such a compelling state interest. See Quilloin v. Walcott,
Defendants contend that the separation occurred because plaintiffs were subject to lawful prosecution under
While defendants have a legitimate interest in enforcing the immigration laws and deterring unlawful immigration, nothing in federal law suggests that deterring immigration by indefinitely separating families once the parents have been transferred to immigration custody is a compelling or legitimate government objective. Moreover, defendants' forced separation policy is overbroad because it equally deters both lawful and unlawful conduct. As Judge Boasberg recently put it in a related context: "[The government] maintains that one particular individual may be civilly detained for the sake of sending a message of deterrence to other Central American individuals who may be considering immigration. This appears to be out of line with analogous Supreme Court decisions." R.I.L-R v. Johnson,
For these reasons, the Court finds that Ms. E.F. likely will succeed on her substantive due process claim premised on her constitutional right to family integrity.
2. Irreparable Harm
As to whether Ms. E.F. is likely to suffer irreparable harm in the absence of preliminary relief, there can be no dispute. Ms. E.F. desperately wants to be reunited with her son. See Pl. First Suppl. Ex. 3, July 11, 2018 Decl. of E.F. at ¶ 2. Ms. E.F. has offered overwhelming evidence in her own words and from medical experts describing the grave and lasting consequences of separating parents from their young children. Defendants have not attempted to refute this evidence. For good reason.
The record in this case demonstrates that Ms. E.F.'s separation from her son has been excruciating. She has not seen her son in over two months. See Mot. Ex. 5, June 15, 2018 Decl. of E.F. at ¶ 5. In the *122few, fleeting telephone conversations she has been able to arrange with her son, "he only cries." See TRO App. Ex. 2, June 21, 2018 Decl. of E.F. ¶ 8. He once told her that he had a nosebleed, but was too scared to tell anyone. See id. ¶ 10. Amid her constant anguish, she has been unable to eat or sleep. See id. ¶ 17. Keeping Ms. E.F. separated from her son, in a facility where she has little or no direct access to basic information about her son's health or general well-being, plainly causes irreparable harm. Her son is innocent of any wrongful conduct, and she is, at most, guilty of a petty misdemeanor. See United States v. Dominguez-Portillo, No. 17-4409,
The panic and desperation that Ms. E.F. has endured will no doubt sound familiar to anyone who has ever, even momentarily, lost sight of a child entrusted to his or her care. But counsel for plaintiffs have also offered evidence from medical experts describing the profound and long-term consequences that separation can have on a child's well-being, safety, and development. According to the American Academy of Pediatrics, detained immigrant children may experience high rates of post-traumatic stress disorder, anxiety, and depression. See Compl. Ex. 7, American Academy of Pediatrics Policy Statement at 8; see also Mot. Ex. 10, June 15, 2018 Decl. of Dr. Marsha R. Griffin at ¶ 9 ("There may be nothing more frightening for a vulnerable child than to be forcibly separated from their parent. Even this short-term separation will have lasting impact on their physical and emotional well-being."). Children may also develop toxic stress, a form of extreme and repetitive stress that adversely affects brain development and is correlated with an increased risk of developing chronic mental health problems, as well as behavioral problems. See, e.g., Mot. Ex. 11, June 15, 2018 Decl. of Ms. Julie M. Linton at ¶ 4; Mot. Ex. 12, June 18, 2018 Decl. of Dr. Alan Shapiro at ¶ 14. Furthermore, the harm that develops during detention "does not necessarily resolve once the detainee is freed," as children may experience "developmental delay and poor psychological adjustment, potentially affecting functioning in school and socially." TRO App. Ex. 5, June 21, 2018 Decl. of Dr. Lisa R. Fortuna at ¶¶ 12-14.
As for parents, detained adult asylum seekers may develop musculoskeletal, gastrointestinal, respiratory, and neurologic symptoms. See Compl. Ex. 7, Policy Statement of American Academy of Pediatricians at 8. Being detained without information can also induce "profound hopelessness, despair, depression and even suicidal urges." TRO App. Ex. 5, June 21, 2018 Decl. of Dr. Lisa R. Fortuna at ¶ 12. Aside from these mental and physical symptoms, parents often face difficulty parenting their children after a period of forced separation. See Mot. Ex. 10, June 15, 2018 Decl. of Dr. Marsha R. Griffin at ¶ 10 ("Separation of children from their parents threatens the parent-child relationship, especially if the child believes that the parent should have been capable of preventing the separation and thus any imagined or real subsequent injury.").
Separation irreparably harms Ms. E.F. and her son every minute it persists. This evidence, combined with the constitutional *123violation alleged, shows that Ms. E.F. is not only likely-but certain-to suffer irreparable injury if the requested preliminary injunction does not issue.
3. The Balance of Equities
In considering whether to grant a preliminary injunction, the Court must "balance the competing claims of injury and ... consider the effect on each party of the granting or withholding of the requested relief." Texas Children's Hosp. v. Burwell,
As discussed, the harm to Ms. E.F. and her son is obvious and intense. Every additional day of separation causes irreparable harm. Lack of information is but one necessary consequence of separation. Another consequence of separation is lasting damage to the child's well-being and his relationship with his mother. And the loss of constitutional freedoms, "for even minimal periods of time, unquestionably constitutes irreparable injury." Mills v. District of Columbia,
Defendants contend that affording the relief sought by Ms. E.F. in this action-immediate reunification-would interfere with their ongoing efforts to reunify all class members with their children by July 26, 2018, as required by the preliminary injunction issued in the class action pending before Judge Sabraw. See Opp'n at 8-10, 14. They contend that they are devoting significant resources to facilitating compliance for all class members, including Ms. E.F. A conflicting order from this Court, defendants argue, may impact these compliance efforts.
While defendants have recently advised Judge Sabraw that they are committed to reuniting all of the separated children with their parents by July 26, 2018, see Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 109, at 1,
The Court recognizes that all of the children of class members are suffering irreparable harm. But the record evidence compiled in this case demonstrates that prompt reunification of Ms. E.F. with her *124son will not significantly interfere with defendants' efforts to comply with the class action order. The fact is that Ms. E.F. has met her burden to show that every day of separation is causing serious and potentially permanent harm. The balance of equities therefore favors accelerated reunification of Ms. E.F. with her son.
4. The Public Interest
The final factor for consideration is the public interest. The public's interest in enforcing the criminal and immigration laws of this country would be unaffected by issuance of the requested preliminary injunction. The Executive Branch remains free to prosecute those who unlawfully enter the United States and institute removal proceedings against them. But the public also has an interest in ensuring that its government respects the rights of immigrants to family integrity while their removal proceedings are pending. See League of Women Voters of the United States v. Newby,
C. Removal of Plaintiffs from the United States
Defendants have acknowledged that several immigrant parents have been removed from the United States without their children. See Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 104, at 5-6 (S.D. Cal. July 12, 2018) (confirming that twelve parents have been removed without their children thus far). In view of that reality, Judge Sabraw has issued a temporary restraining order prohibiting the government from removing any parents without their children upon or after reunification until further order of that court. See Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 116,
IV. CONCLUSION
By Order issued earlier today, the Court granted plaintiff E.F.'s motion for a preliminary injunction. Defendants must reunify Ms. E.F. with her son and must do so on or before midnight on Friday, July 20, 2018. Defendants are prohibited from removing plaintiffs E.F., M.G.U., or A.P.F from the United States until further order of this Court.
SO ORDERED.
The Court has reviewed the following documents and accompanying exhibits in connection with the pending motion: Complaint ("Compl.") [Dkt. No. 1]; Plaintiffs' Application for a Temporary Restraining Order ("TRO App.") [Dkt. No. 8]; Plaintiffs' Errata to TRO Application [Dkt. No. 12]; Plaintiffs' Motion for a Preliminary Injunction ("Mot.") [Dkt. No. 13]; Defendants' Opposition to TRO Application ("TRO Opp'n") [Dkt. No. 16]; Plaintiffs' Emergency Motion for Expedited Discovery [Dkt. No. 25]; July 5, 2018 Joint Status Report [Dkt. No. 26]; Defendants' Opposition to Preliminary Injunction Motion ("Opp'n") [Dkt. No. 27]; Defendants' Opposition to Expedited Discovery Motion [Dkt. No. 28]; Plaintiffs' Reply to Expedited Discovery Motion [Dkt. No. 29]; July 9, 2018 Memorandum Opinion and Order ("July 9, 2018 Mem. Op. & Order") [Dkt. No. 30]; Plaintiffs' Reply to Preliminary Injunction Motion ("Reply") [Dkt. No. 31]; Plaintiffs' First Notice of Supplementary Evidence ("Pl. First Suppl.") [Dkt. No. 36]; Plaintiffs' Notice Regarding Damus v. Nielsen [Dkt. No. 37]; Plaintiffs' Second Notice of Supplementary Evidence ("Pl. Second Suppl.") [Dkt. No. 38]; Defendants' July 13, 2018 Status Report [Dkt. No. 39]; Plaintiffs' July 13, 2018 Status Report [Dkt. No. 40]; Plaintiffs' July 13, 2018 Supplemental Status Report ("July 13, 2018 Suppl. Report") [Dkt. No. 41]; July 16, 2018 Memorandum Opinion and Order Regarding TRO Application ("July 16, 2018 Mem. Op. & Order Regarding TRO") [Dkt. No. 42]; Defendants' Notice of Additional Filings [Dkt. No. 43]; July 16, 2018 Memorandum Opinion and Order Regarding Removal ("July 16, 2018 Mem. Op. & Order Regarding Removal") [Dkt. No. 44]; July 17, 2018 Status Report [Dkt. No. 45]; and July 18, 2018 Order Regarding Preliminary Injunction [Dkt. No. 46].
The Trafficking Victims Protection Reauthorization Act ("TVPRA"), Pub. L. No. 110-457 (Dec. 23, 2008), provides that "the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of" the Department of Health and Human Services, and its sub-agency, ORR. See
To be clear, Ms. E.F. does not challenge her initial criminal detention pending prosecution for improper entry under
To the extent that Ms. E.F.'s claim is properly analyzed under the "shock the conscience" standard set forth in Cnty. of Sacramento v. Lewis,
Not only does forced family separation cause severe emotional harm, but it also forces parents and children to make critical legal decisions in isolation from one another. See Mot. Ex. 7, June 25, 2018 Decl. of Chris Carlin at ¶ 10; United States v. Dominguez-Portillo,
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