325 F. Supp. 3d 111
D.C. Cir.2018Background
- In May 2018, plaintiff E.F., an asylum seeker from Guatemala, and her nine‑year‑old son were apprehended at the U.S.–Mexico border; they were initially detained together but separated the next day and have been held apart for over two months.
- E.F. was criminally prosecuted for improper entry, served time, and was transferred to civil immigration detention; her son was designated an "unaccompanied alien child" and placed in ORR custody in New York.
- E.F. alleges she is the biological mother, that she is not unfit or dangerous, and that she has had only a few brief, emotional phone calls with her son.
- E.F. sued on June 20, 2018 asserting a Fifth Amendment substantive due process claim based on deprivation of her parental liberty interest; she sought a preliminary injunction ordering immediate reunification.
- The district court granted emergency relief (TRO) ordering improved communications and, after expedited briefing and a hearing, granted a preliminary injunction ordering reunification by July 20, 2018 and forbidding removal of E.F. pending further order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court has jurisdiction and sovereign‑immunity waiver to grant injunction | APA §702 waives sovereign immunity for constitutional claims; suit arises under federal question jurisdiction | Defendants argue lack of waiver and that alternative remedies (habeas/parole review) undermine jurisdiction | Court: §702 permits waiver for constitutional claim; §1331 provides jurisdiction for substantive due process claim; injunction is within court's power |
| Whether separation infringes a fundamental parental liberty interest | E.F.: forced separation absent a showing of unfitness or danger violates substantive due process (parental right to custody/care) | Defendants: detention and TVPRA/ORR placement lawfully render child "unaccompanied" and justify separate custody | Court: parental liberty interest implicated; separation is a substantial burden and likely unconstitutional absent individualized showing of unfitness or necessity |
| Standard of review for burdens on family integrity (narrow tailoring/strict scrutiny) | E.F.: severe burden; government must show compelling interest and narrow tailoring; less restrictive alternatives (family detention) exist | Defendants: enforcement of criminal/immigration laws and mandatory detention justify separation | Court: enforcement/detention do not justify continued separation after criminal proceedings; zero‑tolerance policy not narrowly tailored; less restrictive alternatives exist; strict scrutiny not satisfied |
| Whether preliminary injunction factors (likelihood of success, irreparable harm, equities, public interest) support relief | E.F.: likely to succeed on merits; separation causes irreparable harm to parent and child; equities and public interest favor reunification | Defendants: reunification order could impede compliance with class‑action timelines and strain resources | Court: plaintiff meets all four factors; irreparable emotional/ developmental harm established; balance and public interest favor injunction; ordered reunification by July 20, 2018 |
Key Cases Cited
- Winter v. NRDC, 555 U.S. 7 (2008) (preliminary injunction standard requires showing likelihood of success and irreparable harm)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental right to care, custody, and control of children is a fundamental liberty interest)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (Due Process Clause applies to all persons within the United States, including aliens)
- Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) (APA §702 waives sovereign immunity for constitutional claims against the United States)
- Ms. L. v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 1133 (S.D. Cal. 2018) (related class‑action finding that family separations likely violate substantive due process and ordering reunifications)
- W.S.R. v. Sessions, 318 F. Supp. 3d 1116 (N.D. Ill. 2018) (similar decision applying constitutional protections to family separation)
- Stanley v. Illinois, 405 U.S. 645 (1972) (recognizing constitutional protections for parent‑child relationship)