318 F. Supp. 3d 1116
N.D. Ill.2018Background
- Two unrelated Brazilian minors (W.S.R., age 16; C.D.A., age 9) were separated from their fathers after crossing the U.S.–Mexico border in May 2018; fathers were criminally prosecuted for unlawful entry, received time-served sentences, and are now in ICE immigration custody while the children are in ORR custody at a Chicago facility.
- Both children and fathers allege they attempted to present at a port of entry but were told it was closed; each father was told separation would be brief but the children have been apart from their fathers for weeks with limited contact.
- Plaintiffs sought immediate reunification, release of the fathers, consolidation of immigration proceedings, and protective orders; court converted TROs into preliminary-injunction briefing for some relief.
- The Southern District of California had issued a class injunction in Ms. L. II requiring reunification deadlines for class members; the government said it intended to comply but disputed accelerated timing for these two children.
- The district court found (at the preliminary-injunction stage) that the children have a fundamental due-process right to reunify with fit parents in immigration custody, that the government’s continued separation was arbitrary and conscience-shocking on this record, and ordered reunification within 72 hours and enjoined removal of the fathers without their sons; requests to order parental release and other immigration-proceedings relief were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to reunification/family integrity | Children assert substantive-due-process right to reunify with fit parents in immigration custody; separation violates that right and causes irreparable harm. | Government contends reunification will comply with Ms. L. II deadlines and resists accelerated timing; argues parental incarceration changes the analysis. | Court: Children likely to succeed on substantive-due-process claim; ordered reunification within 72 hours. |
| Jurisdiction / sovereign immunity for reunification claim | Habeas and federal-question jurisdiction support injunctive relief against federal officials; APA waives immunity for injunctive relief. | Government raised usual forum/sovereignty concerns. | Court: Jurisdiction proper under 28 U.S.C. § 2241 and § 1331; APA waives sovereign immunity for injunctive claims. |
| Authority to order release of fathers (simultaneous parental release) under Flores / 8 C.F.R. § 1236.3 | Plaintiffs argue Flores plus regulation and due process permit courts to order simultaneous release to effectuate reunification. | Government: Flores does not create parental release rights; regulation prerequisites (bond/parole/release on recognizance) are not satisfied; mandatory-detention rules limit court power. | Court: Flores does not authorize parental release; § 1236.3(b)(2) inapplicable here; denied request to order fathers’ release. |
| Court intervention in immigration proceedings (consolidation/location/witness availability) | Plaintiffs seek consolidation of cases and availability of parents as witnesses to protect asylum rights and due process. | Government warns such orders would intrude on Executive’s immigration processes and Congress’s design; logistical burden. | Court: Denied extraordinary immigration-proceedings relief; will not micromanage hearings or compel consolidation. |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (applicability of preliminary injunction standard)
- Rumsfeld v. Padilla, 542 U.S. 426 (proper habeas respondent rule)
- Washington v. Glucksberg, 521 U.S. 702 (careful description of liberty interest for substantive due process)
- Flores v. Lynch, 828 F.3d 898 (interpretation of Flores settlement and limits on parental rights under it)
- Overton v. Bazzetta, 539 U.S. 126 (deferential review of prison regulations)
- Prince v. Massachusetts, 321 U.S. 158 (parental custody and care as cardinal principle)
- Quilloin v. Walcott, 434 U.S. 246 (constitutional protection of parent–child relationship)
- Troxel v. Granville, 530 U.S. 57 (parental rights and family integrity)
- Ms. L. v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 1133 (S.D. Cal.) (class injunction requiring reunification deadlines)
- Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.A., Inc., 549 F.3d 1079 (balancing equities in preliminary injunction)
- Lambert v. Buss, 498 F.3d 446 (preliminary-injunction factors)