Honorable Edmond E. Chang, United States District Judge.
In two separate cases, minors W.S.R. and C.D.A. challenge the placement decisions of the United States government after the boys (who are not related to one another) were forcibly separated from their fathers shortly after the father-son pairs crossed the United States-Mexico border in May 2018. W.S.R. R. 14, W.S.R. Am. Compl.; C.D.A. R. 10, C.D.A. Am. Compl.
W.S.R. turned 16 years old last week and is a citizen of Brazil. W.S.R. R. 18, Exh. A, [redacted] Decl. ¶ 2. His father is [redacted], a former resident of Ipatinga, Minas Gerais, Brazil. Id. ¶ 1. In May 2018, [redacted] and W.S.R. fled Brazil in order to request asylum in the United States. Id. ¶¶ 18-20. For the five months before entering the United States, [redacted] and W.S.R. lived together in Brazil, and fled because they were being targeted with death threats by a drug trafficker who lived in their neighborhood. Id. ¶¶ 5-9. [redacted] and W.S.R. attempted to relocate within Brazil, but still did not feel safe and feared for their lives. Id. ¶¶ 10-11. [redacted] feared seeking police protection because of allegedly rampant corruption in the Brazilian police force. Id. ¶ 12. [redacted] alleges that he and W.S.R. cannot evade the drug trafficking network anywhere in Brazil, and if they return to Brazil, they will be killed. Id. ¶¶ 13-15. [redacted] did not tell W.S.R. every detail about the threats because [redacted] did not want to worry his son. Id. ¶ 16.
On May 23, 2018, [redacted] and W.S.R. allegedly tried to present themselves at a port of entry at the United States border to seek asylum, but were told that the port of entry was closed. [redacted] Decl. ¶¶ 19-20. [redacted] and W.S.R. then entered the United States outside of a port of entry and were stopped by Customs and Border Patrol (CPB) officers. Id. ¶ 20. Two days later, on the night of May 25, a guard told [redacted] he was being transferred to a jail and that W.S.R. would be separated from him for two or three days, or at most five. Id. ¶ 22. W.S.R. cried a lot when he learned of the separation. Id. ¶ 23. Father and son have not seen each other since that day.
The other plaintiff in this case is C.D.A. He is 9 years old and a citizen of Brazil. C.D.A. R. 18, Exh. A, [redacted] Decl. ¶ 2. His father is [redacted], a former resident of Capitã Andrade, Minas Gerais, Brazil. Id. ¶ 1. [redacted] borrowed $8,000 from a loan shark in Brazil in order to get to the United States. Id. ¶ 3. The loan shark belongs to a large group of human traffickers. Id. ¶¶ 3, 6. According to [redacted], the human traffickers are part of a large criminal organization in Brazil, and the organization also runs a drug trafficking operation. Id. ¶ 10. Back when [redacted] was a teenager, he refused to join the operation and the drug traffickers attacked him and burned him with a hot knife. Id. ¶¶ 7-9. He alleges that if he and C.D.A. return to Brazil, they will be forced into indentured servitude or killed. Id. ¶¶ 11-16.
Like W.S.R. and his father, C.D.A. and [redacted] allegedly tried to present themselves at a port of entry on May 23, 2018, but were told that the port was closed. [redacted] Decl. ¶ 17. That same day, they crossed outside of a port of entry and were detained. Id. ¶¶ 18-19. Two days later, a guard told [redacted] that the guard was taking C.D.A. to a facility for children, but that they would be separated for no more than five days. Id. ¶ 21. C.D.A. had never been separated from both his mother and father, and cried when [redacted] said that they would be apart for three days, five days at the most. Id. ¶ 22. The two have not seen each other since.
After being separated from their sons, both [redacted] and [redacted] were transferred to detention facilities in New Mexico where they were jailed — without knowing where their sons were being held. [redacted] Decl. ¶ 24; [redacted] Decl. ¶ 26. Both fathers appeared in court on a misdemeanor charge of entering the United States illegally. W.S.R. Mot. TRO at 5; [redacted] Decl. ¶¶ 24-25; C.D.A. Mot. TRO at 5. Both pled guilty. W.S.R. Mot. TRO at 5; see [redacted] Decl. ¶ 25; [redacted] Decl. ¶¶ 24-25. [redacted] was allegedly never allowed to address the court or explain that the port of entry was closed, and was sentenced to time served. [redacted] Decl. ¶¶ 25-26. [redacted] appeared in court in a group of around two dozen others who were also charged with unlawful entry. [redacted] Decl. ¶¶ 24-25. He pled guilty and received time served. See id. ¶ 25.
After pleading guilty and receiving time-served sentences, both [redacted] and [redacted] were returned to Immigration and Custom Enforcement's (ICE) custody and are now detained at separate detention centers in New Mexico. [redacted] Decl. ¶¶ 27-28; W.S.R. Mot. TRO at 3; [redacted] Decl. ¶¶ 28-29. Meanwhile, both W.S.R. and C.D.A. were placed in the custody of the Department of Health and Human Services (HHS), specifically its Office of Refugee Resettlement (ORR). W.S.R. Am. Compl. ¶ 62; W.S.R. Mot. TRO at 3; C.D.A. Am Compl. ¶ 64; C.D.A. Mot. TRO at 3. ORR placed the boys at the Heartland International Children's Rescue Center (Heartland) in Chicago, Illinois, where they remain, separated from their fathers. W.S.R. Am. Compl. ¶ 62; W.S.R. Mot. TRO at 3; C.D.A. Am Compl. ¶ 64; C.D.A. Mot. TRO at 3.
On June 15, 2018 — after three weeks of separation — [redacted] was allowed to speak to W.S.R. on the phone for the first time since the separation. [redacted] Decl. ¶ 29. W.S.R. was upset and told [redacted] that he did not think he would ever see him again. Id. ¶ 30. Sometime in around early June 2018, [redacted] spoke to C.D.A. for the first time since being separated. [redacted] ¶ 27. The conversation was a brief one over the telephone. Id. During the week of June 18, [redacted] had a second telephone conversation with C.D.A. Id. ¶ 31. C.D.A. said that he did not want anyone to go through what he was going through. Id. ¶ 32.
On around June 25, 2018, an ICE officer attempted to get [redacted] to sign a voluntary removal form, but the form was written in the English language, which [redacted] does not understand. See [redacted] Decl. ¶ 35; W.S.R. Mot. TRO at 6. [redacted] refused to sign it. See [redacted] Decl. ¶ 35; W.S.R. Mot. TRO at 6. The parties reported during the July 5, 2018 hearing that [redacted] has not yet been interviewed to determine whether he has a credible fear of persecution as part of his asylum claim. [redacted] did undergo a credible-fear interview, and received a negative finding. C.D.A. Mot. TRO at 3. An immigration judge has not yet reviewed that finding. Id.
On June 26, 2018, the District Court for the Southern District of California issued a class-wide injunction requiring the government to reunite minor children under the age of five with their parents by July 10 and those five and over by July 26. Ms. L. v. U.S. Immigration & Customs Enf't, 310 F.Supp.3d 1133, 1149-50, 2018 WL 3129486, at *12 (S.D. Cal. June 26, 2018) (Ms. L. II). [redacted] and [redacted] are members of the Ms. L. class. W.S.R. R. 30, C.D.A. R. 27, Gov't Resp. Br. at 2. Class members may not be removed from the United States without their children. Ms. L. II, 310 F.Supp.3d at 1149-50, 2018 WL
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To prevail on a motion for a preliminary injunction, the moving party must show (1) a likelihood of success on the merits; (2) a lack of an adequate remedy at law; and (3) an irreparable harm will result if the injunction is not granted. Lambert v. Buss, 498 F.3d 446, 451 (7th Cir. 2007). If the moving party meets these requirements, then the court balances the nature and degree of the potential harm to each party and the public interest. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.A., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008).
The first claim at issue is Plaintiffs' request to be immediately reunited with their fathers. This is a narrower claim than the request that the reunification be effectuated by simultaneously releasing their fathers. As noted earlier, the class-action order in Ms. L. II already requires that the government reunite Plaintiffs with their fathers by July 26, which is the thirty-day deadline for children age five and over. Practically speaking, the government has stated that it intends to comply with the class-action order, 6/29/18 Order; Gov't Resp. Br. at 2, and does not directly oppose Plaintiffs' request for reunification — it only contests the timeline (and the broader request for simultaneous release of the fathers). Gov't Resp. Br. at 14, 18-19. The government asserts that the entry of additional reunification orders will impede its efforts to comply with Ms. L. II. Id. at 18-19.
Although the government's objection to reunification is limited to timing, a start-to-finish analysis of the reunification claim is necessary for two reasons. First, the relative strengths of the parties' positions bear on the consideration of the preliminary-injunction factors, because ultimately the "court must somehow balance the nature and degree of the plaintiff's injury, the likelihood of prevailing at trial, the possible injury to the defendant if the injunction is granted, and the wild card that is the `public interest.'" Girl Scouts, 549 F.3d at 1086 (quoting Lawson Prods., Inc. v. Avent, Inc., 782 F.2d 1429, 1433 (7th Cir. 1986)). Second, in the Ms. L. case, the government recently asked for more time to confirm parentage and parental fitness with the under-five July 10 deadline approaching. Ms. L., 302 F.Supp.3d 1149 (S.D. Cal, 2018), R. 86 at 4-8. It is true that the government represented that the delays are most likely to affect the reunification of minors with parents who have already been released from ICE custody. Id. But the solidity of the government's prior representations that the deadlines will be met has waned. In this situation, which all began with "a chaotic circumstance of the Government's own making," Ms. L. II, 310 F.Supp.3d at 1149, 2018 WL 3129486, at *11, it is appropriate to consider Plaintiffs' request for reunification with a skeptical eye to the government's prior representations.
The threshold inquiry in any case is to check whether subject matter jurisdiction applies. On the reunification claim — independent of the request for release of the fathers — jurisdiction is secure because Plaintiffs can rely on habeas jurisdiction, 28 U.S.C. § 2241, and federal-question
Independent of habeas jurisdiction, there is federal-question jurisdiction to consider Plaintiffs' claim that the substantive component of the Fifth Amendment's Due Process Clause requires reunification. 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
With jurisdiction secure over the reunification claim, the first question in the preliminary-injunction analysis asks whether Plaintiffs have shown that they are likely to succeed on the claim. Plaintiffs allege that their continued separation from their fathers violates their substantive due process right to familial association.
Here, the liberty interest at stake is a child's right to remain in the custody of his parent. That interest has long been recognized as a fundamental right. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 S.Ct. 645 (1944) ("It is cardinal with us that the custody, care[,] and nurture of the child reside first in the parents...."); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.") (citing Wisconsin v. Yoder, 406 U.S. 205, 231-33, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 67 S.Ct. 1042 (1923)); see also Ms. L. I, 302 F.Supp.3d at 1161 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests....")); Ms. L. II, 310 F.Supp.3d at 1142-44, 2018 WL 3129486 at *6-7. As the Supreme Court put it Quilloin:
434 U.S. at 255, 98 S.Ct. 549 (cleaned up).
In this case, the initial separation was triggered by the decision to prosecute W.S.R.'s and C.D.A.'s fathers for reentry misdemeanors, 8 U.S.C. § 1325, and to put the fathers in criminal detention; there was no basis for the separation premised on parental unfitness or danger to the children. The fathers' criminal detentions necessitated the separation of W.S.R. and C.D.A. But the fathers are now back in immigration custody, so the specific interest is a child's right to reunify with his parent in immigration custody, after the parent's criminal detention ends and absent parental unfitness or danger to the child. That specifically and concretely described right is supported by the long line of cases, cited above, that established and continually reaffirm the fundamental right of a child to remain in the custody of a fit parent. Although Congress has broad authority to regulate immigration, even in that context the Supreme Court approved of a regulation that presumptively placed detained minors with their parents. Flores, 507 U.S. at 310, 113 S.Ct. 1439 ("The list [of custodians] begins with parents, whom our society and this Court's jurisprudence have always presumed to be the preferred and primary custodians of their minor children."). Against all this, the government does not actually come right out and say that there is no right to reunification on these facts. Gov't Resp. Br. at 13-14. The government says only that the protection of the parent-child relationship is dependent on the "circumstances of a particular case," id. at 13, and the asserted right must be considered "in light of the fact" that the fathers are in immigration custody, id. at 13-14 — but then offers no explanation, just a bare conclusion, that the fathers' immigration custody results in no valid substantive due process claim, id. at 14. That lack of argument, and the long-established recognition of a child's right to remain in a fit parent's custody, leads the Court to hold, at this preliminary stage, that the fundamental right to reunify with a fit parent in immigration custody does exist and does apply to W.S.R. and C.D.A.
With the fundamental right thus described and recognized, the next step in the analysis asks whether the government has directly and substantially interfered with the right to reunification. There is no doubt: it has. The government forcibly separated W.S.R. and C.D.A. from their respective fathers and is now maintaining the boys in a facility almost 1,000 miles away from the fathers.
The final question is whether the government's action serves a legitimate governmental objective, or if instead it is arbitrary or conscience-shocking.
Here, the fathers of W.S.R. and C.D.A. are no longer in criminal detention. They've served their time. And of course W.S.R. and C.D.A. have not been charged with any crime at all. So Overton has no direct applicability. Without any further explanation by the government on what objective is being served — and served legitimately — by separation, the government's insistence on keeping these boys from their fathers can only be deemed arbitrary and conscience shocking. Plaintiffs are likely to succeed on the reunification claim. Indeed, the irreparable harm inflicted on the boys reinforces why the separation shocks the conscience. That harm, and the inadequacy of any other relief, is discussed next.
The next factors in assessing whether to issue a preliminary injunction are whether Plaintiffs are suffering irreparable harm and have no adequate remedy at law — that is, "the remedy must be seriously deficient as compared to the harm suffered." Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003). The record evidence demonstrates that the boys have suffered irreparable harm from the separation, and the ongoing separation is inflicting ongoing irreparable harm. First, remember that, at the outset of the separation, not surprisingly both boys cried when told that they would be separated from their fathers. [redacted] Decl. ¶ 23; [redacted] Decl. ¶ 22. Based on what the government told the fathers, the boys were told — wrongly — that they would be separated for no more than five days. [redacted] Decl. ¶¶ 22-23; [redacted] Decl. ¶¶ 21-22. Then, incommunicado from their fathers and in the custody of adults who did not speak Portuguese, C.D.A. R. 15, Exh. B, Maldonado Aff. ¶ 5(d), (f), Plaintiffs were flown hundreds of miles away. During the approximately six weeks of separation, each boy has spoken only twice with his father. [redacted] Decl. ¶¶ 29, 33; [redacted] Decl. ¶¶ 27, 31.
Common sense would tell anyone that keeping these boys separated from the only family they have in the United States — in a facility where they have limited access to talk to their fathers and where very few people speak their language — is causing irreparable harm, for which no other form of relief, monetary or otherwise, would be adequate. But there is more than common sense. In the record is this plea of hopelessness from W.S.R., when he finally spoke to his father on the phone: "Dad, I'm never going to see you again." [redacted] Decl. ¶ 30. W.S.R. is "crying a lot and desperate to get out of the center where he is being held." Id. ¶ 31. As intense as that harm is, nine-year-old C.D.A. is suffering worse. A clinical psychologist, Dr. Michelle Cutler, interviewed and evaluated C.D.A. on July 2, 2018. C.D.A. R. 29, Exh. B, Clinical Assessment. Dr. Cutler also reviewed the records of Heartland Alliance, including daily monitoring logs, counseling notes, incident
The final considerations in determining whether to issue a preliminary injunction requiring reunification — and if issued, the deadline for reunification — is the balance of the equities and the public interest. To balance the equities, "the court must compare the potential irreparable harms faced by both parties to the suit — the irreparable harm risked by the moving party in the absence of a preliminary injunction against the irreparable harm risked by the nonmoving party if the preliminary injunction is granted." Girl Scouts, 549 F.3d at 1100. As just recounted above, the irreparable harm to W.S.R. and C.D.A. is obvious and intense. On the other side of the reunification ledger is nothing: the government has articulated no harm, let alone irreparable harm, that would result from reuniting the boys with their fathers. Indeed, the government has repeatedly said that it intends to comply with the Ms. L. II class-action order requiring that Plaintiffs be reunited with their fathers, either together in an ICE family residential center or by being released together. Gov't Resp. Br. at 18-19.
The key question, then, is timing: by when must the government accomplish the reunification? The government contends that reunifying Plaintiffs with their fathers on a faster track than the Ms. L. II order will impede its efforts to timely comply with that class-action order. Gov't Resp. Br. at 18-19. Plaintiffs argue that this hardship is self-inflicted. Pl.'s Reply Br. at 18-19. That is true: the government embarked on a zero-tolerance policy, bringing misdemeanor charges and separating thousands of children from their parents, without a plan for reunification after the short time-served sentences. Ms. L. II, 310 F.Supp.3d at 1149, 2018 WL 3129486, at *11 (family separations are a product of "a chaotic circumstance of the Government's own making"). On these facts, there is no doubt that the scales of justice weigh entirely in Plaintiffs' favor.
What makes this a close call, however, is that the Court also must consider the public interest, "which includes the ramifications of granting or denying the preliminary injunction on nonparties to the litigation." Girl Scouts, 549 F.3d at 1100. It is true that the public interest is served by requiring reunification. Ms. L. II, 310 F.Supp.3d at 1148, 2018 3129486, at *11 (holding that "the public's interest in enforcing the criminal and immigration laws of this country would be unaffected by issuance of the requested injunction" whereas "[t]he public interest in upholding and protecting [the right to family integrity and association] in the circumstances presented here would be served by the issuance of the requested injunction"). But there are around 3,000 other children who have been separated from their parents, and picking out W.S.R. and C.D.A. to leapfrog over others poses the risk that diverting resources in order to effectuate the accelerated reunification for W.S.R. and C.D.A. would delay the reunification of other children.
Ultimately, however, the balance of equities favors accelerated reunification for W.S.R. and C.D.A. Yes, all of the children of the Ms. L. II class members are suffering
Moving on from the reunification claim, Plaintiffs make much broader requests, specifically, for an order reuniting the sons with their fathers "somewhere within the jurisdiction of the Northern District of Illinois," and for an order "[r]eleasing Plaintiffs and their fathers from custody pursuant to the Flores Settlement and 8 C.F.R. 1236.3(b)(2)." Pls.' Reply Br. at 19.
The threshold issue for Plaintiffs' claim under the Flores Agreement is whether this Court has subject matter jurisdiction to decide it. By itself, the claim under the Flores Agreement does not allege that the boys' custody violates the Constitution or federal law, so habeas jurisdiction does not apply, 28 U.S.C. § 2241. See Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002), opinion amended on other grounds, 337 F.3d 1023 (9th Cir. 2003). But it is important to remember that subject matter jurisdiction is different from the merits of the claim. Jurisdiction is federal-court authority to decide the merits of a legal claim. When properly conceived, subject matter jurisdiction poses no obstacle to considering Plaintiffs' claim under the Flores Agreement. That is because the original Flores case itself — filed in the Central District of California-was premised on federal-question jurisdiction. The plaintiffs challenged, among other things, the conditions in which minor aliens were detained by the now-replaced Immigration and Naturalization Service (INS). See Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016); Flores by Galvez-Maldonado v. Meese, 942 F.2d 1352, 1357 (9th Cir. 1991), rev'd on other grounds sub nom. Reno v. Flores, 507 U.S. 292, 315, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (rejecting facial challenge to regulation but not questioning subject matter jurisdiction). Another way to think about this is that no one questions the adjudicative authority — that is, the subject matter jurisdiction — of the District Court overseeing
The real question is whether the Flores Agreement permits this District Court — or, for that matter, any other District Court aside from the District Court overseeing the consent decree — to decide individual claims under the Agreement. Typically, a consent decree is enforced by the District Court before which the decree was entered. See Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501, 523 n.13, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). But the Flores Agreement is atypical: the parties specifically provided that "a minor who disagrees with the INS's determination to place that minor in a particular type of facility ... may seek judicial review in any United States District Court with jurisdiction and venue over the matter to challenge that placement determination ...." Flores Agreement ¶ 24(B). In effect, Paragraph 24(B) acts as a choice-of-forum clause, allowing District Courts around the Nation to consider individual challenges to the government's placement determination (so long as venue is proper under 28 U.S.C. § 1391).
Before addressing Plaintiffs' claim for simultaneous release of their fathers, the government makes the threshold argument that Paragraph 24(B) of the Flores Agreement does not provide for judicial review in this forum of even a child's claim for release, let alone a parent's. The government offers a reasonable argument, though it is ultimately flawed. Specifically, the government points out that Paragraph 24(B) allows for judicial review when a minor "disagrees with the INS's determination to place that minor in a particular type of facility ...." Flores Agreement ¶ 24(B) (emphasis added). To the government's way of thinking, the determination that is subject to review is only as to the type of facility, not as to whether release to a parent is required. Gov't Resp. Br. at 17-18. Under this interpretation, for example, a child can challenge placement in a State or county juvenile detention facility and instead seek to be transferred to a licensed program — but cannot challenge the refusal to release the minor from INS (now ORR) custody in the first place.
But this reading is too narrow. First, context is crucial in interpreting any contract. One of the exhibits to the Flores Agreement is a detailed set of instructions to immigration officers. Flores Agreement, Exh. 2, Instructions to Service Officers. Paragraph 24(B) is implemented by a specific instruction that treats challenges to a refusal to release in the same way as challenges to a refusal to be placed in a license program:
Instructions to Service Officers, ¶ (j) (emphasis added). The first sentence of Instruction Paragraph (j) addresses Paragraph 24(A)'s grant of a right to a bond redetermination hearing. The next sentence of Instruction Paragraph (j) thus implements the right of judicial review in Paragraph 24(B). The instruction specifically tells immigration officers to provide the judicial review notice for challenges to a refusal to release, and makes no mention that the Central District of California is the sole forum for that challenge. The parties to the Flores Agreement also presumably took practical considerations into account when crafting Paragraph 24(B). As a matter of judicial resources, it would make little sense to require every single individual detention challenge to be brought in the Central District of California. Indeed, because minors seeking release could be located in Districts all around the Nation, the most relevant sources of evidence — the minor and, usually, the pertinent government officials — would be located in those other Districts. Of course, judicial review of requests for class-based relief remains exclusively within the Central District of California's purview. But Paragraph 24(B) does authorize other Districts to consider a child's claim for release under the Flores Agreement.
On the merits, however, the Flores Agreement does not encompass a right to a parent's release, at least on consideration of the issue at the preliminary-injunction stage. The Ninth Circuit so held in Flores v. Lynch, 828 F.3d 898, 908 (9th Cir. 2016), because nothing in the text of the Flores Agreement grants a right to parental release. "The Settlement does not explicitly provide any rights to adults. The fact that the Settlement grants class members a right to preferential release to a parent over others does not mean that the government must also make a parent available; it simply means that, if available, a parent is the first choice." Id. (citing Bunikyte, ex rel. Bunikiene v. Chertoff, 2007 WL 1074070, at *16 (W.D. Tex. Apr. 9, 2007)). Aside from the absence of textual support (which is enough to reject reliance on the Agreement), the history of the Flores litigation also dictates the interpretation: "In fact, the context of the Flores Settlement argues against this result: the Settlement was the product of litigation in which unaccompanied minors argued that release to adults other than their parents was preferable to remaining in custody until their parents could come get them." Id. (quoting Bunikyte, 2007 WL 1074070, at *16). Minors, like Plaintiffs here, cannot adequately state a claim for parental relief based on the Flores Agreement.
To buttress the parental-release claim, Plaintiffs contend that the Flores Agreement can work in conjunction with a federal regulation, 8 C.F.R. § 1236.3(b)(2), to authorize federal courts to simultaneously release parents and their children. Pls.' Reply Br. at 6-8. Section 1236.3(b)(2) says that if no parent, legal guardian, or adult relative is available to take custody of the juvenile, and there is a such a person in immigration detention, then "simultaneous release of the juvenile and the parent, legal guardian, or adult relative shall be evaluated on a discretionary case-by-case basis." 8 C.F.R. § 1236.3(b)(2). But the problem with applying that sub-paragraph is that it only applies to "[j]uveniles for whom bond has been posted, for whom parole has been authorized, or who have been ordered released on recognizance...." § 1236.3(b) (emphases added). None of these three possible prerequisites has been met. No federal statute or regulation authorizes District Courts, in this immigration setting, to hold a "bond" hearing,
The cases on which Plaintiffs rely do not support the conclusion that § 1236.3(b)(2) confers authority to District Courts to order a simultaneous release of parents. To be sure, the court in Bunikyte made remarks that might be read to suggest that the court was considering parental release, but in fact the court was merely observing that 8 C.F.R. § 236.3
Bunikyte, 2007 WL 1074070, at *16-17 (emphasis added). The court went on to conclude that "there appears to be no basis for a preliminary injunction ordering release of the Plaintiffs with their parents on these grounds." Id. at *17. So Bunikyte does not stand for the proposition that a District Court can order simultaneous release of a parent.
The other case cited by Plaintiffs, United States v. Dominguez-Portillo, 2018 WL 315759, at *16 (W.D. Tex. Jan. 5, 2018), is also distinguishable. In that case, the court addressed a claim to enforce the minor's right "to have immediate and ongoing contact with the family member who they were arrested with." Id. at *9 (emphasis added). Not surprisingly, the court held that the right to contact was "fundamentally inseparable from the corresponding right of that family member to have contact with the child."
Nor do any of the cases cited by Plaintiffs stand for the proposition that the substantive due process to family integrity dictates release of the parents (as distinct from reunification). The governmental interest is expressed in the statutes governing mandatory detention for those seeking asylum at the stages of the process that Plaintiffs' fathers find themselves in. [redacted] (C.D.A.'s father) has received a negative finding after his credible-fear interview, C.D.A. Mot. TRO at 3, and therefore is subject to mandatory detention, 8 U.S.C. § 1225(b)(1)(B)(iii)(IV).
The other forms of relief that Plaintiffs request are directed at the immigration proceedings that they and their fathers are undergoing. Specifically, Plaintiffs wish to protect their right to seek asylum "by consolidating Plaintiffs' immigration cases with their parents in the Chicago Immigration Court, as well as the ability to participate in the removal process with their parents as witnesses," and if "Plaintiffs and their fathers are not released from custody, requiring DHS and ICE to make Plaintiffs and their fathers available as witnesses for additional proceedings in these cases, as appropriate." Pls.' Reply Br. at 19.
Plaintiffs rely on procedural due process as the basis for the immigration-proceedings relief.
To be sure, those are important interests, but any preliminary injunction is an "extraordinary remedy," Winter, 555 U.S. at 22, 129 S.Ct. 365, and indeed the requested relief is, as far as the Court can tell, unprecedented. For the judiciary to order the consolidation of immigration proceedings, specify the location of the hearings, and dictate who must be available as witnesses would full-force intrude on the Executive Branch's system of handling asylum requests, a system designed in large part by Congress. What's more, the accelerated reunification order will effectively grant some of the relief requested by Plaintiffs, at least as to the pursuit of the asylum claims together. On the current record, the immigration proceedings must be allowed to play out without interference from the Court.
On June 29, 2018, the Court ordered that "Defendants and their officers, agents, servants, employees, attorneys, and all those who are in active concert or participation with them, are preliminarily enjoined from removing from the United States either [redacted] without W.S.R. or [redacted] without C.D.A." 6/29/18 Order at 2. At that point, the government had not articulated a legitimate interest in removing the fathers from the country without their sons. Id. That remains true to this day, and the government did not move to dissolve this relief. No other circumstances have arisen that would warrant a vacatur of that order, so it remains in place.
For the reasons discussed above, the Court grants the following relief:
The other preliminary relief requested by Plaintiffs is denied. The status hearing of July 11, 2018, remains as scheduled.
