United States District Court, N.D. Illinois, Eastern Division
W.S.R. and C.D.A., Plaintiffs,
JEFFERSON B. SESSIONS III, Attorney General of the United States, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang, United States District Judge.
separate cases, minors W.S.R. and C.D.A. challenge the
placement decisions of the United States government after the
boys (who are not related to one another) were forcibly
separated from their fathers shortly after the father-son
pairs crossed the United States-Mexico border in May 2018.
W.S.R. R. 14, W.S.R. Am. Compl.; C.D.A. R. 10, C.D.A. Am.
Compl. Both W.S.R. and C.D.A. filed motions for a
temporary restraining order, W.S.R. R. 18-2, W.S.R. Mot. TRO;
C.D.A. R. 15-2, C.D.A. Mot. TRO, and after holding a hearing,
the Court granted the motions as to one type of relief, but
converted the motions into a preliminary-injunction motion
with an expedited briefing schedule as to the other types of
relief sought by W.S.R. and C.D.A. W.S.R. R. 21, C.D.A. R.
16, 6/29/18 Order. For the reasons discussed below,
Plaintiffs' motion for a preliminary injunction is
granted in part and denied in part. The government must
reunify W.S.R. and C.D.A. with their respective fathers
within 72 hours of the posting of this Opinion on the docket.
The government also must not remove the fathers from the
country without their sons. But the other requests for
relief, including ordering the release of their fathers from
immigration detention, are denied.
Background A. W.S.R.
turned 16 years old last week and is a citizen of Brazil.
W.S.R. R. 18, Exh. A, XXXXX Decl.
¶ 2. His father is XXXXX, a
former resident of Ipatinga, Minas Gerais, Brazil.
Id. ¶ 1. In May 2018, XXXXX and W.S.R. fled Brazil in order to request
asylum in the United States. Id. ¶¶ 18-20.
For the five months before entering the United States,
XXXXX and W.S.R. lived together in
Brazil, and fled because they were being targeted with death
threats by a drug trafficker who lived in their neighborhood.
Id. ¶¶ 5-9. XXXXX
and W.S.R. attempted to relocate within Brazil, but still did
not feel safe and feared for their lives. Id.
¶¶ 10-11. XXXXX feared
seeking police protection because of allegedly rampant
corruption in the Brazilian police force. Id. ¶
12. XXXXX alleges that he and W.S.R.
cannot evade the drug trafficking network anywhere in Brazil,
and if they return to Brazil, they will be killed.
Id. ¶¶ 13-15. XXXXX did not tell W.S.R. every detail about the
threats because XXXXX did not want to worry his son.
Id. ¶ 16.
23, 2018, XXXXX and W.S.R. allegedly
tried to present themselves at a port of entry at the United
States border to seek asylum, but were told that the port of
entry was closed. XXXXX Decl.
¶¶ 19-20. XXXXX and W.S.R.
then entered the United States outside of a port of entry and
were stopped by Customs and Border Patrol (CPB) officers.
Id. ¶ 20. Two days later, on the night of May
25, a guard told XXXXX he was being
transferred to a jail and that W.S.R. would be separated from
him for two or three days, or at most five. Id.
¶ 22. W.S.R. cried a lot when he learned of the
separation. Id. ¶ 23. Father and son have not
seen each other since that day.
other plaintiff in this case is C.D.A. He is 9 years old and
a citizen of Brazil. C.D.A. R. 18, Exh. A, XXXXX Decl. ¶ 2. His father is XXXXX, a
former resident of Capitão Andrade, Minas Gerais,
Brazil. Id. ¶ 1. XXXXX
borrowed $8, 000 from a loan shark in Brazil in order to get
to the United States. Id. ¶ 3. The loan shark
belongs to a large group of human traffickers. Id.
¶¶ 3, 6. According to XXXXX, the human traffickers are part of a large
criminal organization in Brazil, and the organization also
runs a drug trafficking operation. Id. ¶ 10.
Back when XXXXX was a teenager, he refused to join the
operation and the drug traffickers attacked him and burned
him with a hot knife. Id. ¶¶ 7-9. He
alleges that if he and C.D.A. return to Brazil, they will be
forced into indentured servitude or killed. Id.
W.S.R. and his father, C.D.A. and XXXXX allegedly tried to present themselves at a
port of entry on May 23, 2018, but were told that the port
was closed. XXXXX Decl. ¶ 17.
That same day, they crossed outside of a port of entry and
were detained. Id. ¶¶ 18-19. Two days
later, a guard told XXXXX that the
guard was taking C.D.A. to a facility for children, but that
they would be separated for no more than five days.
Id. ¶ 21. C.D.A. had never been separated from
both his mother and father, and cried when XXXXX said that they would be apart for three
days, five days at the most. Id. ¶ 22. The two
have not seen each other since.
After the Separation
being separated from their sons, both XXXXX and XXXXX were
transferred to detention facilities in New Mexico where they
were jailed-without knowing where their sons were being held.
XXXXX Decl. ¶ 24; Decl. ¶
26. Both fathers appeared in court on a misdemeanor charge of
entering the United States illegally. W.S.R. Mot. TRO at 5;
XXXXX Decl. ¶¶ 24-25;
C.D.A. Mot. TRO at 5. Both pled guilty. W.S.R. Mot. TRO at 5;
see XXXXX Decl. ¶ 25;
XXXXX Decl. ¶¶ 24-25.
XXXXX was allegedly never allowed to
address the court or explain that the port of entry was
closed, and was sentenced to time served. XXXXX Decl. ¶¶ 25-26. XXXXX appeared in court in a group of around two
dozen others who were also charged with unlawful entry.
XXXXX Decl. ¶¶ 24-25. He
pled guilty and received time served. See Id. ¶
pleading guilty and receiving time-served sentences, both
XXXXX and XXXXX were returned to Immigration and Custom
Enforcement's (ICE) custody and are now detained at
separate detention centers in New Mexico. XXXXX Decl. ¶¶ 27-28; W.S.R. Mot. TRO
at 3; XXXXX Decl. ¶¶ 28-29.
Meanwhile, both W.S.R. and C.D.A. were placed in the custody
of the Department of Health and Human Services (HHS),
specifically its Office of Refugee Resettlement (ORR). W.S.R.
Am. Compl. ¶ 62; W.S.R. Mot. TRO at 3; C.D.A. Am Compl.
¶ 64; C.D.A. Mot. TRO at 3. ORR placed the boys at the
Heartland International Children's Rescue Center
(Heartland) in Chicago, Illinois, where they remain,
separated from their fathers. W.S.R. Am. Compl. ¶ 62;
W.S.R. Mot. TRO at 3; C.D.A. Am Compl. ¶ 64; C.D.A. Mot.
TRO at 3.
15, 2018-after three weeks of separation- XXXXX was allowed to speak to W.S.R. on the phone
for the first time since the separation. XXXXX Decl. ¶ 29. W.S.R. was upset and told
XXXXX that he did not think he would
ever see him again. Id. ¶ 30. Sometime in
around early June 2018, XXXXX spoke
to C.D.A. for the first time since being separated.
XXXXX ¶ 27. The conversation was
a brief one over the telephone. Id. During the week
of June 18, XXXXX had a second
telephone conversation with C.D.A. Id. ¶ 31.
C.D.A. said that he did not want anyone to go through what he
was going through. Id. ¶ 32.
around June 25, 2018, an ICE officer attempted to get
XXXXX to sign a voluntary removal
form, but the form was written in the English language, which
XXXXX does not understand.
See XXXXX Decl. ¶ 35;
W.S.R. Mot. TRO at 6. XXXXX refused
to sign it. See XXXXX Decl.
¶ 35; W.S.R. Mot. TRO at 6. The parties reported during
the July 5, 2018 hearing that XXXXX
has not yet been interviewed to determine whether he has a
credible fear of persecution as part of his asylum claim.
XXXXX did undergo a credible-fear
interview, and received a negative finding. C.D.A. Mot. TRO
at 3. An immigration judge has not yet reviewed that finding.
Preliminary Injunction in Ms. L. II
26, 2018, the District Court for the Southern District of
California issued a class-wide injunction requiring the
government to reunite minor children under the age of five
with their parents by July 10 and those five and over by July
26. Ms. L. v. U.S. Immigration & Customs
Enf't, ___ F.Supp.3d ___, 2018 WL 3129486, at *12
(S.D. Cal. June 26, 2018) (Ms. L. II). XXXXX and XXXXX are
members of the Ms. L. class. W.S.R. R. 30, C.D.A. R.
27, Gov't Resp. Br. at 2. Class members may not be
removed from the United States without their children.
Ms. L. II, 2018 WL 3129486, at *12. On June 29,
2018, this Court entered the same non-removal limit,
prohibiting the government from removing either XXXXX without W.S.R. or XXXXX without C.D.A. 6/29/18 Order at 2.
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Natural Res.
Def. Council, 555 U.S. 7, 22 (2008). To prevail on a
motion for a preliminary injunction, the moving party must
show (1) a likelihood of success on the merits; (2) a lack of
an adequate remedy at law; and (3) an irreparable harm will
result if the injunction is not granted. Lambert v.
Buss, 498 F.3d 446, 451 (7th Cir. 2007). If the moving
party meets these requirements, then the court balances the
nature and degree of the potential harm to each party and the
public interest. Girl Scouts of Manitou Council, Inc. v.
Girl Scouts of U.S.A., Inc., 549 F.3d 1079, 1086 (7th
first claim at issue is Plaintiffs' request to be
immediately reunited with their fathers. This is a narrower
claim than the request that the reunification be effectuated
by simultaneously releasing their fathers. As noted earlier,
the class-action order in Ms. L. II already requires
that the government reunite Plaintiffs with their fathers by
July 26, which is the thirty-day deadline for children age
five and over. Practically speaking, the government has
stated that it intends to comply with the class-action order,
6/29/18 Order; Gov't Resp. Br. at 2, and does not
directly oppose Plaintiffs' request for reunification-it
only contests the timeline (and the broader request for
simultaneous release of the fathers). Gov't Resp. Br. at
14, 18-19. The government asserts that the entry of
additional reunification orders will impede its efforts to
comply with Ms. L. II. Id. at 18-19.
the government's objection to reunification is limited to
timing, a start-to-finish analysis of the reunification claim
is necessary for two reasons. First, the relative strengths
of the parties' positions bear on the consideration of
the preliminary-injunction factors, because ultimately the
“court must somehow balance the nature and degree of
the plaintiff's injury, the likelihood of prevailing at
trial, the possible injury to the defendant if the injunction
is granted, and the wild card that is the ‘public
interest.'” Girl Scouts, 549 F.3d at 1086
(quoting Lawson Prods., Inc. v. Avent, Inc., 82 F.2d
1429, 1433 (7th Cir. 1986)). Second, in the Ms. L.
case, the government recently asked for more time to confirm
parentage and parental fitness with the under-five July 10
deadline approaching. Ms. L., 18-cv-00248 (S.D. Cal.
July 5, 2018), R. 86 at 4-8. It is true that the government
represented that the delays are most likely to affect the
reunification of minors with parents who have already been
released from ICE custody. Id. But the solidity of
the government's prior representations that the deadlines
will be met has waned. In this situation, which all began
with “a chaotic circumstance of the Government's
own making, ” Ms. L. II, 2018 WL 3129486, at
*11, it is appropriate to consider Plaintiffs' request
for reunification with a skeptical eye to the
government's prior representations.
Subject Matter Jurisdiction / Sovereign Immunity
threshold inquiry in any case is to check whether subject
matter jurisdiction applies. On the reunification
claim-independent of the request for release of the
fathers-jurisdiction is secure because Plaintiffs can rely on
habeas jurisdiction, 28 U.S.C. § 2241, and
federal-question jurisdiction, 28 U.S.C. § 1331. On
habeas, both boys allege that their custody is
unconstitutional, see § 2241(a), because they
have a substantive due process right to be reunited with
their fathers. See W.S.R. Mot. TRO at 12; C.D.A.
Mot. TRO at 11. To be sure, the typical habeas petition
requires that the warden of the custodial facility, rather
than supervisory government officials, be named as the
respondents. Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004) (“[L]ongstanding practice confirms that in
habeas challenges to present physical confinement-‘core
challenges'-the default rule is that the proper
respondent is the warden of the facility where the prisoner
is being held, not the Attorney General or some other remote
supervisory official.”). But this case is atypical. On
the reunification claim, Plaintiffs are not raising a
“core challenge, ” but rather challenge being
placed in custody separate from their fathers. So the habeas
claims are properly brought against any government official
with supervisory authority over Plaintiffs, Ms. L. v. U.S
Immigration & Customs Enf't, 302 F.Supp.3d 1149,
1158 (S.D. Cal. 2018) (Ms. L. I), and any sovereign
immunity obstacle is overcome by § 2241(a)'s
statutory authorization to seek a writ of habeas corpus
against a federal official.
of habeas jurisdiction, there is federal-question
jurisdiction to consider Plaintiffs' claim that the
substantive component of the Fifth Amendment's Due
Process Clause requires reunification. 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). And because
Plaintiffs seek only injunctive relief against federal
agencies on the reunification claim, sovereign immunity is
waived via the Administrative Procedure Act, 5 U.S.C. §
702. See also Michigan v. U.S. Army Corps of
Engineers, 667 F.3d 765, 775 (7th Cir. 2011)
(“[T]he waiver in § 702 is not limited to claims
brought pursuant to the review provisions contained in the
APA itself. The waiver applies when any federal statute
authorizes review of agency action, as well as in cases
involving constitutional challenges and other claims arising
under federal law.”).
Likelihood of Success
jurisdiction secure over the reunification claim, the first
question in the preliminary-injunction analysis asks whether
Plaintiffs have shown that they are likely to succeed on the
claim. Plaintiffs allege that their continued separation from
their fathers violates their substantive due process right to
familial association. W.S.R. Mot. TRO at 13; C.D.A. Mot. TRO at
13. To assess a substantive due process claim, the first step
is to provide a “careful description” of the
liberty interest at stake in order to promote restrained
decision-making. Washington v. Glucksberg, 521 U.S.
702, 721 (1997) (quoting Reno v. Flores, 507 U.S.
292, 302 (1993)). Once the interest is concretely described,
then the question is whether that interest is
“fundamental”- that is, whether it is “so
deeply rooted and sacrosanct that no amount of process would
justify its deprivation.” Christensen v. Cty. of
Boone, IL, 483 F.3d 454, 462 (7th Cir. 2007) (citing
Glucksberg, 521 U.S. at 720-21). If the liberty
interest is indeed fundamental, then the next question is
whether the government has interfered directly and
substantially with that right. Id. (citing
Zablocki v. Redhail, 434 U.S. 374, 386-87 & n.12
(1978)). And, finally, if the government has so interfered,
then the court asks whether the government's action
serves a legitimate governmental objective, or if instead it
is “arbitrary, or conscience shocking, in a
constitutional sense.” Id. (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)).
the liberty interest at stake is a child's right to
remain in the custody of his parent. That interest has long
been recognized as a fundamental right. Prince v.
Massachusetts, 321 U.S. 158, 166 (1944) (“It is
cardinal with us that the custody, care[, ] and nurture of
the child reside first in the parents … .”);
Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
(“We have recognized on numerous occasions that the
relationship between parent and child is constitutionally
protected.”) (citing Wisconsin v. Yoder, 406
U.S. 205, 231-33 (1972); Stanley v. Illinois, 405
U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S.
390, 399-401 (1923)); see also Ms. L. I, 302
F.Supp.3d at 1161 (citing Troxel v. Granville, 530
U.S. 57, 65 (2000) (“The liberty interest at issue in
this case-the interest of parents in the care, custody, and
control of their children-is perhaps the oldest of the
fundamental liberty interests … .”)); Ms. L.
II, 2018 WL 3129486 at *6-7. As the Supreme Court put it
We have little doubt that the Due Process Clause would be
offended if a State were to attempt to force the breakup of a
natural family, over the objections of the parents and their
children, without some showing of unfitness and for the sole
reason that to ...