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M. G. U. v. Nielsen

United States District Court, District of Columbia

July 18, 2018

M.G.U., et al ., Plaintiffs,
KIRSTJEN NIELSEN, et al ., Defendants.



         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]

         I. 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]

         Three 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.

         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 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).

         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, 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].” See id.


         “A 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)).

         Before 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 ...

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