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Judge denies bid to move family separation case out of California

Immigration officials kept a father and son separated for 15 months despite requests for asylum immediately after they crossed the border.

SACRAMENTO, Calif. (CN) — In 2018, a man and his son fled Honduras, crossing the Rio Grande border near McAllen, Texas. They took it upon themselves to approach a U.S. Customs and Border Protection patrol car to seek asylum.

The father, going by the initials A.F.P., told agents he been abducted, tortured and sexually abused by Honduran police after he refused to count fraudulent ballots while working at a general election polling site. He says he attempted to report the assault to a police agency but was met with more hostility.

Just days after the report, police, military personnel and civilians took A.F.P. from his home to a bridge, where he was beaten and told his wife and son would be killed. After escaping the group by jumping off the bridge, he returned to his home only to find it was reduced to ashes.

But after fleeing to the United States and requesting asylum, the father and son say Border Patrol agents arrested them, stripped them of their possessions and separated them.

The pair say immigration officers took them to a CPB facility known as the “ice box” for its freezing temperatures. A.F.P. says he never got a chance to explain his need for asylum and was instead put before a judge on charges of illegally entering the U.S. without a lawyer, translator or explanation of the charges against him. When he returned to the detention center from the court, his son had been moved to New York.

In the detention center, A.F.P. says conditions were so cramped that he couldn’t sit down and the food provided was frozen and rancid. He was in a group of 80 men and given one daily water bucket to share. Eventually, immigraiton authorities transferred him to a maximum-security prison where he was shackled and forced to urinate on himself.

Meanwhile in New York, the son J.F.C., then 15, says he was also neglected and abused. At a detention center, he was one of 16 other boys who had to share a bathroom and was given only rotten food — and no water. He was verbally abused for asking to go to the bathroom, and one employee barricaded the door so he couldn’t relieve himself.

On one of the few occasions he could leave the detention center, J.FC. says his group was taken to an indoor pool where he slipped and fell. After the fall, he experienced intense ear pain and routinely asked for medical care. J. F. C. lost hearing in one ear because the staff refused to get him treatment.

With the help of human rights advocates, A.F.P. and his family lawfully re-entered the United States in 2019. J.F.C. was reunited with his family a week later after 15 months of separation.

In May 2021, the father and son sued the federal government for the abuse they endured. They claim the abuse was tied directly to “zero tolerance” immigration policies which mandated that all parents crossing the border with children be prosecuted.

“The trauma that plaintiffs and other parents and children suffered was not an incidental byproduct of the government’s policy. It was the very point," the father and son say in their complaint. "The government sought to inflict extreme emotional distress and other harms in order to deter parents and children from seeking asylum in this country. Government officials at the highest levels repeatedly made public statements acknowledging that this was the policy’s purpose."

The federal government, represented by David Shelledy of the U.S. Attorney’s Office, sought to transfer the case from the Eastern District of California to the Southern District of Texas, arguing that is where most of what the plaintiffs claim occurred took place and that the location is more favorable for witnesses. The government also asked for dismissal on grounds that the Federal Tort Claims Act bars policy challenges and that some of the abuse was at the hands of independent contractors.

This week, U.S. District Judge Dale Drozd denied the motions. Regarding the request to transfer the case to Texas, Drozd found the plaintiffs "already tenuous" financial situation would make shuttling from California to Texas to litigate their case an undue hardship.

Drozd did agree that many of the potential witnesses in the case are in Texas and New York but said they could testify by video if need be. As for the government's claim of immunity, the judge found the carveouts relied on in the Federal Tort Claims Act do not apply when the government or its agents have acted unconstitutionally.

"Here, plaintiffs have plausibly alleged that the government’s separation of a father and son for 15 months violated their constitutional rights," Drozd wrote in the 32-page ruling. "The complaint in this case alleges the facts of plaintiffs’ forced separation, the conduct of the government in carrying out that separation, and specifically asserts that such conduct was in violation to plaintiffs’ constitutional rights to family integrity."

He added: "Courts that have considered the constitutionality of the government’s practice of family separation at the border have found the practice to likely be unconstitutional."

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