United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
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
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 asylum
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.
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.
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
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.
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.
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 (2000); Quilloin v. Walcott, 434 U.S. 246, 255
(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, W.S.R. v. Sessions, No. 18-4265, at 10-15
(N.D. Ill. July 9, 2018).
the parties agree that Ms. E.F. is a member of the class in
the action pending before Judge Sabraw. In that case, Judge
Sabraw granted a class-wide preliminary injunction and
ordered that defendants “reunify all Class Members with
their minor children age five (5) and older within thirty
(30) days of the entry of this Order” absent certain
circumstances that do not apply here. Ms. L. v. U.S.
Immigration and Customs Enf't, 2018 WL 3129486, at
*12. Defendants have repeatedly represented to this Court, in
both their papers and at the July 12 hearing, that they
intend to comply with Judge Sabraw's thirty-day timeline
for reunification of children age five and above. They have
made a similar commitment to Judge Sabraw. See Ms. L. v.
U.S. Immigration and Customs Enf't, No. 18-0428, ECF
No. 109, at 1 (S.D. Cal. July 15, 2018). Given the likelihood
that Ms. E.F. will prevail on her substantive due process
claim in this Court, the likelihood of success prong of the
four-part test weighs heavily in favor of granting the
temporary restraining order.
E.F. faces potentially imminent and irreparable harm if the
Court does not grant the requested relief and prohibit her
removal from the country without her son prior to
reunification. In the class action, Judge Sabraw specifically
enjoined defendants from “removing any Class Members
without their child, unless the Class Member affirmatively,
knowingly, and voluntarily declines to be reunited with the
child prior to the Class Member's [removal].”
Ms. L. v. U.S. Immigration and Customs Enf't,
2018 WL 3129486, at *12; see also Memorandum Opinion
and Order, W.S.R. v. Sessions, No. 18-4265, at 30.
Here, Ms. E.F. has presented credible evidence that she does
not consent to removal without her son prior to
reunification. The Court credits her declarations signed on
July 11, 2018 and July 13, 2018 confirming her desire not to
be removed without her son. In her declarations, she states
that “I want to be reunited with my son, ” July
11, 2018 Declaration of E.F. at ¶ 2 [Dkt. No. 36-3], and
that “[i]f I am deported, I want to hug my nine-year
old boy before I go, ” July 13, 2018 Declaration of
E.F. at ¶ 4 [Dkt. No. 40-1].
respond that on June 28, 2018, Ms. E.F. placed her initials
on a one-page form in which she purports to consent to
removal without her son prior to reunification. See
June 28, 2018 Parent/Child Reunification Request [Dkt. No.
36-2]. Although the parties have provided few details about
the circumstances under which this one-page form was
presented to and initialed by Ms. E.F., Ms. E.F. has
presented evidence that she “is not able to read or
write in English” and that she is “not fully
literate in Spanish.” See July 13, 2018
Declaration of Ashley N. Martinez at ¶ 4 [Dkt. No.
41-1]. She has also explained that she did not fully
understand the purpose of the form, believing that completing
it would allow her son to stay with his uncle until she was
released from detention. See July 11, 2018
Declaration of E.F. at ¶¶ 4-6 [Dkt. No. 36-3]. In
light of these representations, the Court does not credit the
form in which Ms. E.F. purports to decline reunification with
her son prior to removal. Simply put, the form is not worth
the paper it is written on.
E.F. were to be removed on the basis of her negative credible
fear determination and invalid waiver, she likely will lose
the ability to be immediately reunified with her son without
the benefit of any due process protections. Such harm would
undoubtedly be irreparable. Although defendants have
repeatedly stated that they will attempt to comply - or more
recently, are “committed” to complying, see
Ms. L. v. U.S. Immigration and Customs Enf't, No.
18-0428, ECF No. 109, at 1 - with Judge Sabraw's
thirty-day timeline for reunification of children age five
and above on or before July 26, 2018, defendants have refused
to assure this Court that they will not seek to remove Ms.
E.F. without her son prior to that date. Because defendants
have declined to voluntarily provide an administrative stay
of the removal order beyond July 17, 2018, there is no
guarantee that Ms. E.F. will be permitted to remain in the
country long enough to be reunited with her son in the event
that the Court orders such reunification to occur. See
Doe v. Mattis, 288 F.Supp.3d 195, 200 (D.D.C.),
aff'd, 889 F.3d 745 (D.C. Cir. 2018) (citing
In re Petitioners Seeking Habeas Corpus Relief in
Relationship to Prior Detentions at Guantanamo Bay, 700
F.Supp.2d 119, 126 (D.D.C. 2010), aff'd sub nom.
Chaman v. Obama, 2012 WL 3797596 (D.C. Cir. Aug. 10,
balance of equities and the public interest also favor
granting Ms. E.F.'s motion for a temporary restraining
order. Defendants may be concerned that a temporary
restraining order will disrupt the process in place for
immigration authorities to make removal decisions and may
challenge their authority to do so. The temporary restraining
order requested here, however, would merely require
defendants to briefly stay their hand while the Court
assesses the merits of Ms. E.F.'s due process claim. All
that is involved is the preservation of the status quo for a
short period of time until the Court can make a determination
on the merits, so any possible disruption to defendants will
be minimal. And while there may be an interest in allowing
the process for removal to run its course without the
intervention of the courts, there is a much weightier
interest in ensuring that defendants do not impermissibly
deprive immigrant parents of their due process rights under
the danger that, upon removal, the Court could lose the
ability to adjudicate Ms. E.F.'s motion for a preliminary
injunction seeking reunification, it follows that Ms.
E.F.'s removal from the country without her son could
undermine her rights. In the absence of a commitment from
defendants to stay their hand, the Court must act to ...