OPINION
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
The
matter is before the Court on plaintiffs' motion for a
preliminary injunction [Dkt. No. 2], requiring the United
States government to immediately reunify plaintiff Alma Zuli
Jacinto-Castanon de Nolasco with her nine-year-old son and
her eleven-year-old son, from whom Ms. Jacinto-Castanon was
forcibly separated shortly after crossing the United
States-Mexico b over two months ago. Upon careful
consideration of the parties' filings, the relevant legal
authorities, the arguments of counsel at the hearing on July
12, 2018, and the entire record in this case, the Court
granted plaintiffs' motion by separate Order yesterday,
July 18, 2018. 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. ¶ 35. 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. at 9. 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. See
id. at 9-10.
Plaintiffs
in this action are Ms. Jacinto-Castanon and her two sons, who
were forcibly separated after crossing the border prior to
the issuance of the Executive Order on June 20, 2018. Ms.
Jacinto-Castanon is presently detained in Arizona, while her
sons are detained in California. Compl. ¶ 51. They are
being held solely as civil immigration detainees and not in
association with any criminal charge or conviction. Ms.
Jacinto-Castanon has passed a credible fear interview - the
first step in the asylum process. There is no evidence
suggesting that Ms. Jacinto-Castanon is not the biological
mother of her sons. Nor is there any suggestion that she is
an unfit parent or poses a danger to her sons. In addition,
Ms. Jacinto-Castanon's niece is a U.S. citizen who
resides in North Carolina and has offered to sponsor Ms.
Jacinto-Castanon and her sons during the pendency of Ms.
Jacinto-Castanon's asylum proceedings. See Mot.
Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶ 22.
In May
2018, after gang members murdered her husband and threatened
to kill her and kidnap her children, Ms. Jacinto-Castanon and
her sons fled Guatemala to pursue asylum in the United
States. See Compl. ¶ 45. On May 14, 2018, they
entered the United States near Lukeville, Arizona and told
border agents that they intended to seek asylum. See
id. at 1 and ¶ 46. Although they were initially
detained together, the family was forcibly separated two days
later on May 16, 2018. See id. ¶¶ 46-49.
Ms. Jacinto-Castanon was taken to a court hearing that day
and when she returned, her children were gone: “The
immigration officers told me that my children had been taken
away, but did not tell me where they were. The immigration
officers stated that if the [g]overnment wanted to keep my
children they would do so, and I would be deported alone and
be forced to leave my sons behind.” See Mot.
Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶¶
12-13. Unbeknownst to Ms. Jacinto-Castanon, her sons had been
deemed “unaccompanied minors” because they had
“no parent or legal guardian in the United States . . .
available to provide care and physical custody.”
Opp'n at 7. As a result, her sons were transferred to the
custody of the Office of Refugee Resettlement
(“ORR”) and detained in a separate facility.
See id.[2]
Ms.
Jacinto-Castanon later pled guilty to misdemeanor improper
entry under 8 U.S.C. § 1325(a) and was sentenced to time
served. See Opp'n at 7. She was then transferred
to immigration detention for consideration of her asylum
application. She subsequently passed a credible fear
interview and is no longer subject to expedited removal or
mandatory immigration detention. See Opp'n at 21
n.8. She is currently detained in Eloy, Arizona and is
awaiting an asylum hearing. See Mot. Ex. 1, June 26,
2018 Jacinto-Castanon Aff. at ¶ 16; Pl. Suppl. Notice at
3.
Ms.
Jacinto-Castanon has not seen her sons since May 16, 2018.
See Mot. Ex. 1, June 26, 2018 Jacinto-Castanon Aff.
at ¶¶ 12-13. She believes that her sons are in a
shelter in Los Angeles, California during the day, and then
stay with an unrelated and unknown family at night. See
id. ¶ 18. She has spoken to her sons only a few
times over the phone each week since their separation.
Id. ¶ 19. During the few conversations that
they have had, her youngest son “cries and tells [her]
he has nightmares.” Id. ¶ 20. Both of her
sons tell her that they are upset and afraid, and “wish
they could be together as a family.” Id. Due
to her separation from her sons and her lack of information
about their well-being, she feels “profound anguish, a
deep sense of helplessness, and depression.” Compl.
¶ 54.
B.
Procedural History
Plaintiffs
brought suit on June 27, 2018 against certain federal
agencies and officials responsible for enforcing immigration
laws and regulations. See Compl. ¶¶ 12-27.
The complaint alleges, inter alia, that
plaintiffs' continued separation, absent a showing that
Ms. Jacinto-Castanon is an unfit parent or otherwise presents
a danger to her sons, violates their substantive due process
right to family integrity under the Fifth Amendment to the
United States Constitution. See id. ¶¶
60-63.
On June
27, 2018, plaintiffs filed a motion for a preliminary
injunction seeking immediate reunification. The next day,
plaintiffs filed a motion for an expedited hearing on their
preliminary injunction motion, see Expedited Hearing
Mot. at 1, which the Court granted on June 29, 2018. After
the preliminary injunction motion was fully briefed, the
Court held a hearing on the motion on July 12, 2018. At the
hearing, counsel for defendants represented that Ms.
Jacinto-Castanon's children are detained in a
government-licensed facility during the day, where they
receive religious services and various other services. He
explained that the children stay with foster families in the
evening. He further explained that upon reunification,
defendants could: (1) detain Ms. Jacinto-Castanon and her
sons together in a family residential facility pending asylum
proceedings; (2) place the family with a sponsor - Ms.
Jacinto-Castanon's U.S.-citizen niece in North Carolina -
pending asylum proceedings; or (3) release Ms.
Jacinto-Castanon on bond and with a monitoring device, such
as an ankle bracelet, pending asylum proceedings.
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.
II.
LEGAL STANDARD
“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 citation
omitted). Regardless of the extent to which showings of
irreparable harm and success on the merits can be diminished,
however, it is clear that where the plaintiff can show
neither harm nor likelihood of success, no relief is
warranted. See Standing Rock Sioux Tribe v. U.S. Army
Corps of Eng'rs, 205 F.Supp.3d 4, 26 (D.D.C. 2016).
III.
DISCUSSION
Ms.
Jacinto-Castanon seeks a preliminary injunction directing
defendants to immediately reunify her with her sons. 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 ...