LOS ANGELES (CN) – Attorneys representing a proposed class of families separated under President Donald Trump’s now-abandoned zero tolerance immigration policy said Thursday that ongoing mental health care is needed to address the “systemic” harm they experienced while in detention.
In a 61-page complaint filed July 12, plaintiffs said the federal government inflicted “enormous emotional trauma” by separating families, an act they claim violated their Fifth Amendment rights to due process and equal protection.
Plaintiffs seek injunctive relief from the policies and conditions that deprive them of appropriate mental-health services provided under the Flores settlement and seek to represent a class of parents who “were, are or will be detained” in immigration detention.
Lead plaintiff J.P., a Guatemalan woman who entered the United States seeking asylum for herself and her 16-year old daughter L.P., fled her country after her husband threatened to kill her.
The pair was separated for weeks after a grueling ten-day journey to the U.S-Mexico border. J.P., who speaks the Mayan dialect Q’eqchi’, said she couldn’t understand documents given to her and didn’t know her daughter’s whereabouts.
“It was really frightening to not know what was happening, how long we would be there, or what would happen to us,” J.P. said in court papers July 12. “The pain of being separated from my daughter and worrying about her every day is indescribable.”
Kevin Fee of Sidley Austin said Thursday that the government is obligated to provide “trauma-informed” mental health care to the proposed class of over 1,000 parents and 3,000 children, even if some have been released from custody.
A health expert cited by plaintiffs said in court papers that family separation can cause “both immediate and long-term psychological consequences” if left untreated.
“This was a grievous and direct harm through concerted policy…that inflicted harm on already vulnerable people,” Fee said, adding that the reunification of families doesn’t address “future mental disorders” that can come as a result of separation and detention.
Plaintiffs claim the government is liable for their harm and should provide mental health care on the basis of the state-created danger doctrine.
U.S Justice Department attorney Michael Heyse called the lawsuit “creative lawyering” and said the claims have already been addressed in the Ms. L v Sessions case in the Southern District of California.
Heyse said the claims were “cloaked in injunctive garb” and are more appropriate as a tort claim. He added that the claims are “moot” since Trump’s zero tolerance policy had already been enjoined when plaintiffs filed their July 12 complaint.
U.S District Judge John Kronstadt said it’s not uncommon to have overlapping class actions with similar claims.
Heyse agreed but argued that children in the proposed class should be added as named plaintiffs in the case.
The government said in court papers that 437 children in Office of Refugee Resettlement custody remain separated from their parents. Seven of those children have parents who are currently detained by the Department of Homeland Security.
A Syracuse University study published Thursday said 174 detained immigrants challenged their confinement by filing habeas corpus petitions in federal courts in August 2018, up from 136 in July.
The study found that habeas corpus petitions were up 98.6 percent from levels reported in August 2013.
Heyse said it’s unclear what health services plaintiffs are seeking and said that any government obligation to provide such care must come after the court has found “conscious shocking” neglect.
In a motion to dismiss filed Monday, the Trump administration said that class members’ fears of future harm due to detention or family separation are “purely speculative” and don’t prove that the government should provide them with any post-release care.
“No court has ruled that a detention or custodial agency must provide any such care after release from detention or custody, or if at all, beyond a brief transitional period,” the motion said. “The Government does not owe a free-standing duty to provide medical care to former detainees.”
In a sworn statement to the court Wednesday, Office of Refugee Resettlement Field Supervisor James De La Cruz said he reviewed each plaintiff’s case and found that staff determined they didn’t have “mental health issues warranting more intensive interventions” or follow-up treatment.
While in custody, if a child is deemed to have mental illness they can be referred to external services and treatment which can include psychotropic drugs, De La Cruz said, adding that formerly detained individuals can access case managers after release.
A safety and well-being check is performed for all detained children 30 days after their release, the statement said.
Heyse said mental health “resources are out there” for immigrant families in detention, adding that a listing of pro bono services is made available.
Kronstadt asked Heyse how he expects immigrant families to navigate complex medical systems in a new country where they may not speak the language.
Heyse said there was no evidence that requests for referrals were ever ignored in detention facilities.
Kronstadt asked how any potential relief – compensatory, injunctive or other forms – would benefit people who have already been released from detention or deported.
Fee said it was not plaintiff’s “burden to come up with a plan” but that they could be part of envisioning the best method for relief.
Also before the court is defendant’s ex parte motion to move a Jan. 7 hearing to Oct. 22.
Kronstadt made no ruling Thursday on the defendants’ motion or plaintiffs’ motions for preliminary injunctive relief and class certification and did not indicate when he would rule.