Leticia v. United States

1

LETICIA AND YOVANY, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

No. 22-CV-7527 (NGG) (RJL

United States District Court, E.D. New York

October 27, 2023

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE

Leticia and her son Yovany^[1] (“Plaintiffs”) are asylum seekers from Guatemala. (See Compl. (Dkt. 1) ¶ 1-2.) They fled their home country to find safe haven and escape persecution. (Id.) In November 2017, they arrived at the United States border where they were promptly separated by the United States Government under a precursor to the Trump Administration's zero-tolerance immigration policy. (Id. ¶¶ 15-22, 24, 29.) They remained separated for over two years until a court ordered their reunification. (Id. ¶ 23.)

On November 12, 2022, Plaintiffs brought an action against the United States of America under the Federal Tort Claims Act (“FTCA”) seeking damages for this separation and its attendant harms. (See generally Compl.) Plaintiffs' claims are for (1) intentional infliction of emotional distress, (2) negligence, (3) abuse of process, (4) assault and battery, and (5) conversion. (Id. ¶¶ 106-128.) In August 2023, the Government moved to transfer the case, or, in the alternative, to dismiss the case for failure to demonstrate subject matter jurisdiction and for failure to state a claim. (See generally Not. of Mot. (Dkt. 32); Mot. (Dkt. 32-1).)

For the reasons discussed in this memorandum and order, the motion to transfer is DENIED. The motions to dismiss are GRANTED in part and DENIED in part. The court grants the Government's motion to dismiss Plaintiffs' conversion claim. The Court also grants the Government's motion to dismiss certain claims insofar as they are based on a theory of vicarious liability for actions committed by independent contractors, as discussed in this memorandum and order. Plaintiffs' claims for intentional infliction of emotional distress, negligence, abuse of process, and assault and battery remain.

I. BACKGROUND^[2]

A. Separation and Detention of Leticia and Yovany

Plaintiffs Leticia and Yovany immigrated from Guatemala to the United States seeking asylum. (Compl. ¶ 1.) On November 20, 2017, shortly after crossing the border into West Texas, U.S. Customs and Border Protection (“CBP”) agents apprehended Plaintiffs and placed them in detention at a facility in Presidio, Texas. (Id. ¶¶ 3, 24,29; Davies Deci. (Dkt. 32-3) ¶ 9.) In the early morning hours of November 21, 2017, Government officers separated Leticia and Yovany and placed them in gender-segregated rooms. (Id. ¶¶ 3, 29.). Later that morning, Leticia was awaken by a fellow detainee who told her that “immigration officers had taken her son.” (Id. ¶ 32.) Government officers would not tell Leticia where her son was taken for approximately one month. (Id., ¶¶ 40-42.) She was also unable to communicate with him (Id.) The same day the officers separated Leticia and Yovany, CBP agents sent Leticia to the West Texas Detention facility in Sierra Blanca, Texas. (Davies Deci. ¶ 15). Unbeknownst to Leticia, CBP agents transferred Yovany the next day, on November 22, 2017, to Casa Kokopelli, an Office of Refugee Resettlement (“ORR”) funded private facility for unaccompanied children in Mesa, Arizona. (Compl. ¶ 59; de la Cruz Deci. (Dkt. 32-4) ¶ 3.) Leticia was held in the West Texas facility until June 2018; Yovany was held at the Mesa, Arizona facility until August 2018. (Davies Deci. ¶¶ 7-8; de la Cruz Deci. ¶ 3.)

A week after the separation, on November 28, 2017, Leticia attended a criminal hearing relating to charges of improper entry. (Compl. ¶ 36.) These charges were dismissed the day of the hearing. (Id. ¶ 37.) Almost two months after this hearing, on or around January 17, 2018, Leticia had a credible fear interview (“CFI”) at which she was found to have a credible fear of returning to her home country. (Id. ¶ 76.)^[3] Over four months after the CFI, on or around May 23, 2018, Leticia attended a hearing before an Immigration Judge where she was told she could present her full asylum case in October 2018. (Id. ¶ 77.) Leticia “felt she could not wait until October for her next hearing or force herself and her son to continue to suffer in detention for many more months” so she accepted deportation. (Id. ¶¶ 77-78.) A month later, in June 2018, immigration officers deported Leticia, without her son, to Guatemala. (Id., ¶ 78.) She remained in Guatemala until February 2020 after a federal district court granted a motion to allow her to return to the United States and reunite with her son after finding that the “withdrawal of her [asylum and withholding of removal] claims was not voluntary.” (Id., ¶¶ 7, 79.) See also Ms. L. v. U.S. Immigr. & Customs Enft, 403 F.Supp.3d 853, 863 (S.D. Cal. 2019) (“Ms. L. IH”)^[4] (granting the motion of a group of plaintiffs including Leticia, therein referred to as B.L.S.P., to return to the United States to pursue their asylum applications), Following Leticia's deportation, in August 2018, officials transferred Yovany from the facility in Mesa, Arizona, to San Antonio, Texas, and placed him with a foster family. (Id. ¶ 80.) The Government gave Yovany the option to return to Guatemala with Leticia, but he chose to stay in the United States out of a fear of persecution that was the basis of his asylum claim. (Id. ¶¶ 80-81.)

Ultimately, Plaintiffs were separated for 818 days. (Opp. (Dkt. 33) at 6, n.l.) For the first month, Plaintiffs were unaware of each other's location and unable to communicate with one another. (Compl. ¶¶ 40-42.) Plaintiffs allege that while detained, they were denied medical care, given inadequate food, and kept in conditions that were cold or otherwise inhumane. (Id. ¶¶ 25, 27, 30, 44-48, 50, 52, 66.) Plaintiffs further allege that they suffered and continue to suffer from medical issues and trauma resulting from their prolonged separation and the conditions of detention. (Id. ¶ 108, 113, 118, 122.)

B. The Zero-Tolerance Policy and its Precursor

As early as July 2017, CBP officials began piloting a program of intentionally and forcibly separating asylum- seeking parents from their children to deter asylum seekers from entering the United States. (See Compl. ¶ 15, n.2 (citing U.S. Dep't of Health and Hum. Servs., Off. of Insp'r Gen., Separated Children Placed in Office of Refugee Resettlement Care (Jan. 2019)); see also D.A. v. United States, No. 22-CV-00295, 2023 WL 2619167, at *1 (W.D. Tex. Mar. 23, 2023); Ms. L. v. U.S Immigr. & Customs Enft, 330 F.R.D. 284, 288 (S.D. Cal. 2019) (“Ms. L. IR).) Plaintiffs allege that they were detained as part of this program. (See Opp. at 3.)

On May 7, 2018, then-Attorney General Jeff Sessions announced the expanded “zero-tolerance policy,” directing prosecution of all adults entering the country. See Ms. L. v. ICE, 310 F.Supp.3d 1133, 1136 (S.D. Cal 2018) (“Ms. L. R) (citing U.S. Att'y. Gen., Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration (May 7, 2018), https://www.justice. gov/op a/sp eech/attomey-general-sessions-delivers-remarks-discussing-immigration-enforcement-actions). In accordance with that policy, the Government separated parents from their children. (Compl. ¶ 18.) The Government deported many of these parents while their children remained in the United States to pursue their asylum claims. Ms. L. HI, 403 F.Supp.3d at 857. This policy continued through at least June 20, 2018, when then-President Trump issued an executive order directing the Secretary of Homeland Security to “maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” See Executive Order 13,841, Affording Congress an Opportunity to Address Family Separation § 3, 2018 WL 3046068 (June 20, 2018).

C. The Ms. L. Litigation

A week after the executive order, on June 26, 2018, the Federal District Court of Southern California ordered the federal government to reunite eligible families. See Ms. L. I, 310 F.Supp.3d at 1145. The Ms. L. litigation involved multiple decisions relating to the zero-tolerance policy, three of which are most relevant to this case. In the first of these decisions, in June 2018, the court

certified the Ms. L Class of parents and generally included in the Class those parents who were (1) separated from their minor children at the border pursuant to the Administration's immigration policies and (2) did not have criminal history (with limited exceptions), were not unfit and did not present a danger to their children. The Court also issued on the same day a preliminary injunction prohibiting Defendants from further separating parents and their children at the border as there was a likelihood that conduct violated the parents' Fifth Amendment due process rights to family integrity under the United States Constitution. The preliminary injunction also ordered Defendants to reunite the families that had already been separated.

Ms. L. Ill, 403 F.Supp.3d at 857 (referencing Ms. L. I, 310 F.Supp.3d at 1139 & n.5).^[5]

In the second of these cases, the court amended the class definition to include individuals detained as part of a family separation policy that began as early as July 2017, prior to its formal announcement in May 2018. See Ms. L. II, 330 F.R.D. at 286-87. Leticia was included in the amended Ms. L. class. In the third of these cases, the court ordered the return of Leticia (therein referred to under the pseudonym B.L.S.P., (see Compl. ¶ 79 n.13)) to the United States because the initial decision to withdraw her asylum application was found to be involuntary making her removal unlawful. Ms. L. Ill, 403 F.Supp.3d at 863 (“The Court cannot say B.L.S.P.'s decision to withdraw her...