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Jacinto-Castanon de Nolasco v. U.S. Immigration and Customs Enforcement

United States District Court, District of Columbia

July 19, 2018




         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.


         “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).


         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 ...

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