K.O. v. United States

651 F.Supp.3d 331

K.O., BY AND THROUGH their parents and next friends,E.O. and L.J., E.O. Jr., by and through their parents andnext friends E.O. and L.J., E.O. and L.J., in their personal capacity,C.J., by and through his father and next friend F.C., F.C., in his personal capacity, Plaintiffs, v. UNITED STATES of America, Defendant.

CIVIL ACTION NO. 4:20-12015-TSH

United States District Court, D. Massachusetts

Signed January 9, 2023

David A. Vicinanzo, Pro Hac Vice, Nathan P. Warecki, Nixon Peabody LLP, Manchester, NH, Howard M. Cooper, Joseph M. Cacace, Todd & Weld, Boston, MA, Lauren Maynard, Nixon Peabody LLP, Boston, MA, Derege B. Demissie, Susan B. Church, Demissie & Church, Cambridge, MA, for Plaintiffs.

Michael P. Sady, Rayford A. Farquhar, United States Attorney's Office, Boston, MA, for Defendant.

ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO TRANSFER OR IN THE ALTERNATIVE MOTION TO DISMISS (Docket No. 50)

HILLMAN, DISTRICT JUDGE

K.O., E.O. Jr., L.J., E.O., C.J. and F.C. ("plaintiffs") bring a suit against the United States of America ("defendant") under the Federal Tort Claims Act ("FTCA"), alleging various common law torts¹ arising from the separation of noncitizen families who crossed the southern border of the United States. For the reasons below, the Court denies defendant's motion to transfer, and grants in part and denies in part their motion to dismiss.

Background

1. Flores and Immigration Law

In 1997 the United States entered into a settlement agreement ("Flores settlement") concerning the treatment of noncitizen children. (Am. Comp. at ¶ 27). That agreement set the rules for detaining non-citizen minors, including policies encouraging immigration authorities to release minors whenever possible and place minors in the "least restrictive setting." (Id. at ¶¶ 28-31). Although the Flores settlement was intended as a stopgap measure, and there are some statutes concerning the detention of minor noncitizens (discussed below), both parties agree the agreement is still in effect. See also Bunikyte ex rel. Bunikiene v. Chertoff, No. 07-ca-164-SS, 2007 WL 1074070, at *2-*3 (W.D. Tex. Apr. 9, 2007).

In 2008 Congress passed the Trafficking Victims Prevention Reauthorization Act ("TVPRA"). P.L. 110-457 (Dec. 23, 2008). Under that act, an "Unaccompanied alien child" ("UAC") is a child under 18 with no lawful immigration status and no parent or legal guardian available to care for them in the United States. 6 U.S.C. § 279. Furthermore, "[e]xcept in the case of exceptional circumstances," minor noncitizens can only be detained for more than 72 hours before being transferred to the custody of Health and Human Services (here, the Office of Refugee Resettlement, "ORR"). 8 U.S.C. § 1232(b)(3).

2. The Policy

The plaintiffs allege that, beginning in 2017, the Trump administration instituted a new policy of separating noncitizen families that crossed at the southern border. (Am. Comp. at ¶¶ 36-43). They allege the policy began in earnest in late 2017 and was implemented regardless of the factual circumstances of the family in question. (Id. at ¶¶ 47-48). During separation, parents were not allowed to speak with their children. (Id. at ¶ 58). Reunification was complicated by the decision to label the children as "unaccompanied," (id. at ¶ 64).

The policy was escalated in April 2018 when the Trump administration announced a "Zero Tolerance policy" for illegal border crossings whereby all noncitizens would be detained and referred for prosecution. (Id. at ¶¶ 68-70). The plaintiffs allege the policy was a pretext for a policy of separation that occurred both before and after the "Zero Tolerance" announcement and occurred even when there was no prosecution. (Id. at ¶¶ 71-79).

Plaintiffs argue that this policy was motivated by animus toward noncitizens and immigration generally and was designed to deter immigration—at least via the southern border—pointing to public remarks by senior Trump administration officials. (Id. at ¶¶ 80-101). Plaintiffs argue that the officials were aware of the trauma that children would suffer but failed to provide adequate mental health care. (Id. at ¶¶ 102-18). They also argue that many parents were forced to waive their rights to apply for asylum in return for reunification. (Id. at ¶¶ 119-23)

3. The Plaintiffs

a. E.O., L.J., E.O. Jr., and K.O.

This family ("Family O") resides in Massachusetts. (Id. at ¶ 12). They are seeking asylum and fleeing violence and persecution in Guatemala. (Id.). K.O. is a minor and E.O., Jr. was a minor when the complaint was filed. (Id. at ¶ 10). L.J. is the mother and E.O. is the father of the children. E.O. was living in Massachusetts when his family crossed the border. (Id. at ¶ 143).

On May 19, 2018, L.J., E.O. Jr., and K.O. entered Texas from Mexico. (Id. at ¶ 127). They crossed into the Southern District of Texas. (Docket No. 61, at 4 n. 4).² After being apprehended by a Customs and Border Protection Agent ("CBP"), they were brought to a detention agency. (Am. Comp. at ¶¶ 130-32). Both children were taken from their mother and questioned. (Id. at ¶¶ 133-35). K.O., the younger child, was brought back to her mother and they were kept in a cell for 12-14 hours. (Id. at ¶¶ 136-38). At that point, K.O. was forcibly separated from her mother. (Id. at ¶¶ 138-41). L.J. was never charged with a crime, nor were there allegations of abuse or neglect. (Id. at ¶ 145).

The day the children were separated, a CPB or Immigration and Customs Enforcement ("ICE") officer called E.O., the father, and told him his children were in custody, separate from their mother, and would be placed in the custody of a social worker. (Id. at ¶ 144).

On May 20, 2018, E.O. received a Family Reunification Application and began the process of trying to reunite with his family; the process dragged on due to interviews and errors in the documentation. (Id. at ¶¶ 164-65). As a condition of receiving custody of his children E.O. had to attend a presentation directed toward guardians of unaccompanied minors. (Id. at ¶ 166).

Shortly thereafter, the children of Family O were reunited and brought to a different facility in separated cells that faced each other. (Id. at ¶ 146). They spent two days in that facility and were not allowed to speak to each other and only had access to thermal blankets. (Id. at ¶¶ 147-49). The children in the facility were not supervised, there was no support for children as young as two or three years of age, the guards verbally abused the children when they cried, and one guard kicked E.O. Jr. (Id. at ¶¶ 150-53).

After two days, the children were taken to another facility; on the way, CPB or ICE agents told E.O., Jr. his mother had been deported. (Id. at ¶¶ 156). At some point, the two children were taken to Michigan and told they would be separated, but federal agents told E.O. Jr. his mother would arrive in the morning. (Id. at ¶ 157). K.O. was brought to a foster family with three other children who had been separated and spoke with her father every night. (Id. at ¶¶ 158-59). E.O. Jr. was in a facility with eighteen other boys and attended school in the morning where he could see K.O. (Id. at ¶ 160). During this period the children were vaccinated, despite already being vaccinated, and not told where their mother was. (Id. at ¶ 161-62). The children were reunited with their father on June 19, 2018, having flown from Michigan to the District of Columbia, to Boston. (Id. at ¶ 166).

During this time L.J. remained detained in Texas and was not able to call her husband for nine days. (Id. at ¶168). After she was found to have a credible fear of prosecution, (Id. at ¶ 169), L.J. was released on June 26, 2018, and reunited with her family shortly thereafter, (Id. at ¶ 170). K.O. and E.O., Jr. were separated from both parents for 31 days and from their mother for 38 days. The family is traumatized by the ordeal, especially the children. (Id. at ¶¶ 171-72).

b. F.C. and C.J.

This family ("Family C") resides in Massachusetts. (Id. at ¶ 12). They are seeking asylum and fleeing violence and persecution in Guatemala. (Id.). F.C. is C.J.'s father. Family C entered Texas on June 17, 2018, from Mexico. (Id. at ¶ 174). They crossed into the Western District of Texas. (Docket No. 67, at 4). They were apprehended by CBP, detained, and told they would be separated. (Am. Comp. at ¶¶ 175-76). While detained, they were given an aluminum blanket to share and were cold and hungry. (Id. at ¶ 177-78).

On June 20, 2018, CPB agents told F.C. he had to leave his son in the facility while he attended court for the day and did not make it clear they were being separated. (Id. at ¶ 179). Instead, F.C. was held in an unidentified facility, possibly a prison or jail, then moved to another facility. (Id. at ¶ 181-85). F.C. spent three weeks with pending criminal charges before they were dismissed and was then moved to various immigration detention facilities. (Id. at ¶ 185). After several weeks an employee allowed F.C. to use a phone and contact his son. (Id. at ¶¶ 185-86). While his father was detained, C.J. was kept in a facility with other children separated from their families. (Id. at ¶¶ 189-91). They were reunited at an immigration detention facility on July 26, 2018. (Id. at ¶ 192). Not including the time apparently spent in criminal detention, C.J. and F.C. were separated for 15 days. Both father and son are traumatized by the ordeal. (Id. at ¶¶ 192-96).

Analysis

1. Motion to Transfer

Defendant moves to transfer the case to the Western District of Texas. In this district, courts consider a six-factor test when deciding a motion to transfer:

(1) the plaintiff's choice of forum, (2) the relative convenience of the parties, (3) the convenience of the witnesses and location of documents,³ (4) any connection between the forum and the issues, (5) the law to be applied, and (6) the state or public interests at stake.

ViaTech Techs., Inc. v. Adobe Inc., No. 19-cv-11177-ADB, 2020 WL 1235470, at *2 (D. Mass. Mar. 13,...