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Judge refuses to toss separated family’s tort claim against feds

While separated from his father — who had been deported — the then-17-year-old asylum seeker says he was sexually abused at a detention facility for immigrant children.

(CN) — A federal judge on Monday rejected a bid by the federal government to dismiss a lawsuit filed by an unnamed asylum seeker who claims that he was separated from his 17-year-old son by border agents for nine months, as part of President Donald Trump's family separation policy.

In the 10-page ruling, U.S. District Judge Richard Jones wrote that the plaintiffs had "plausibly alleged a violation of their constitutional right to family integrity," and that the suit could not be dismissed under the "discretionary function exception" which protects the government from some tort claims. The exception, wrote the judge, "does not shield the government from liability for unconstitutional conduct," noting the Ninth Circuit holding that the exception does not apply to the Trump administration's family separation policy when the plaintiffs allege a specific constitutional violation.

"We had been expecting this result," said Matt Adams, an attorney with the Northwest Immigrant Rights Project, who represents the two asylum seekers, "because every district court so far in the Ninth Circuit has similarly rejected the government’s arguments that they can’t be held accountable for this, that the court doesn’t have jurisdiction to entertain these claims." He added: "Yet the government continues to assert these claims without any success."

The Biden administration does not have the same policy of separating families at the border, although the Justice Department is still defending lawsuits filed over the policy. There have been discussions about a global settlement of all such lawsuits, but no deal has been forthcoming. "They decided they didn’t want to deal with political blowback," said Adams.

The complaint identifies the father as E.L.A. and his son as O.L.C, both Indigenous Mayans and a citizens of Guatemala. According to the suit, E.L.A. was "a political activist who received death threats due to his advocacy for Indigenous land rights." They both "fled persecution and torture in Guatemala to seek asylum in the United States."

They crossed the border into Texas in June 2018. U.S. Customs and Border Protection detained them both, and separated the then-17-year old O.L.C. from his father.

"Defendant’s employees did not give E.L.A. and O.L.C. the chance to hug, kiss, or even say goodbye before taking O.L.C. away," the asylum seekers say. "E.L.A. recalls the fear etched on O.L.C.’s face and the sound of his screams. E.L.A. describes this forcible separation from his son as the worst moment of his life."

At the time, the Justice Department under then-Attorney General Jeff Sessions had a "zero tolerance" policy and prosecuted anyone entering into the country illegally from the southern border. Those awaiting prosecution were detained; since minors couldn't be detained in the same facilities, they were separated from their parents.

Critics of the policy have said that the real purpose of the family separations was to intimidate and dissuade other would-be asylum seekers from seeking refugee in the U.S.

E.L.A. was eventually deported back to Guatemala. According to his complaint, an attempt was made on his life. Eventually, a nonprofit organization helped transport him back to the U.S. to reunite him with his son who had been housed at Lincoln Hall Boys Haven, a sort of orphanage for "unaccompanied alien children," as the government has called it, in New York state. While there, according to the complaint, he became "a victim of sexual abuse," and was given medication without his father's consent.

The plaintiffs say O.L.C. was shown pornographic videos on a Lincoln Hall staff member's phone, and at one point "a staff member followed O.L.C. into a bathroom and was alone with him for an extended period of time, during which he suffered what a later report called a 'groin injury.'" Their claims include negligence and intentional infliction of emotional distress.

In March 2019, O.L.C was reunited with his father after nine months of separation, thanks to a court's intervention stemming from a different case. They're currently living in the Seattle area, awaiting action on their asylum applications.

"They're doing well," said Adams. "They're moving forward with life. They have a lot to do as far as gaining stability and overcoming trauma."

Lawyers for the federal government declined to comment on this story.

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Categories / Civil Rights, Government

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