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W.S.R. v. Sessions

United States District Court, N.D. Illinois, Eastern Division

July 9, 2018

W.S.R. and C.D.A., Plaintiffs,
v.
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.

         In two 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.[1] 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.

         I. Background A. W.S.R.

         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.

         On May 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.

         B. C.D.A.

         The 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. ¶¶ 11-16.

         Like 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.

         C. After the Separation

         After 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. ¶ 25.

         After 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.

         On June 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.

         On 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. Id.

         D. Preliminary Injunction in Ms. L. II

         On June 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.

         II. Analysis

         A 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 Cir. 2008).

         A. Reunification

         The 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.

         Although 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.

         1. Subject Matter Jurisdiction / Sovereign Immunity

         The 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.

         Independent 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.”).[2] 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.”).[3]

         2. Likelihood of Success

         With 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.[4] 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)).

         Here, 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 Quilloin:

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 ...

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