United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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.
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 that 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).
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
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, No. 18-0428, 2018 WL 3129486 at *11-12 (S.D.
Cal. June 26, 2018). The class is defined to include:
“All adult parents who enter the United States at or
between designated ports of entry who (1) have been, are, or
will be detained in immigration custody by the [Department of
Homeland Security (“DHS”)], and (2) have a minor
child who is or will be separated from them by DHS and
detained in ORR custody, ORR foster care, or DHS custody,
absent a determination that the parent is unfit or presents a
danger to the child.” Id. at *3 n.5. The class
does not include “parents with criminal history or
communicable disease, or those apprehended in the interior of
the country or subject to the [Executive Order].”
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. NRDC, 555 U.S.
7, 24 (2008). A party seeking preliminary relief must make a
“clear showing that four factors, taken together,
warrant relief: likely success on the merits, likely
irreparable harm in the absence of preliminary relief, a
balance of the equities in its favor, and accord with the
public interest.” League of Women Voters of the
United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)
(quoting Pursuing America's Greatness v. FEC,
831 F.3d 500, 505 (D.C. Cir. 2016)). The moving party bears
the burden of persuasion and must demonstrate, “by a
clear showing, ” that the requested relief is
warranted. Hospitality Staffing Solutions, LLC v.
Reyes, 736 F.Supp.2d 192, 197 (D.D.C. 2010) (quoting
Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290, 297 (D.C. Cir. 2006)).
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, No. 18-00578, 2018 WL 3232515, at
*4 (D.D.C. July 2, 2018) (quoting Davis v. PBGC, 571
F.3d 1288, 1291-92 (D.C. Cir. 2009)). This Circuit has
hinted, though not held, that Winter v. NRDC - which
overturned the Ninth Circuit's “possibility of
irreparable harm” standard - establishes that
“likelihood of irreparable harm” and
“likelihood of success” are “independent,
free-standing requirement[s].” Sherley v.
Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (quoting
Davis v. PBGC, 571 F.3d at 1296 (Kavanaugh, J.,
concurring)); see League of Women Voters of the United
States v. Newby, 838 F.3d at 7 (declining to address
whether “sliding scale” approach is valid after
Winter v. NRDC). Also unresolved is the related
question of “whether, in cases where the other three
factors strongly favor issuing an injunction, a plaintiff
need only raise a serious legal question on the
merits.” Aamer v. Obama, 742 F.3d 1023, 1043
(D.C. Cir. 2014) (internal quotation marks and ...