R. v. Sessions et al

Filing 57

ORDER granting in part and denying in part 43 Motion for TRO; granting in part and denying in part 17 Motion for TRO. Signed by Judge Victor A. Bolden on 7/13/2018. (McDonough, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

J.S.R., by and through his next friends J.S.G.
and Joshua Perry, and V.F.B., by and through
her next friends A.B.A. and Joshua Perry,
No. 3:18-cv-01106-VAB
Plaintiffs,
v.
JEFFERSON B. SESSIONS, III, et al.,
Defendants.

RULING AND ORDER ON MOTION FOR A PRELIMINARY INJUNCTION
On July 5, 2018, J.S.R. and V.F.B. (“Plaintiffs”), two children, who were separated from
their parents after crossing this country’s southern border, filed a motion for preliminary
injunction against numerous federal government officials and entities1 (collectively
“Defendants” or the “Government”), seeking an Order that would “(1) enjoin[] Defendants from
continuing to detain Plaintiffs J.S.R. or V.F.B., maintaining their separation from their parents,
or delaying release to suitable sponsors; and (2) after parent and child confer, order[] Defendants
to release J.S.R. and V.F.B. by July 13, 2018 to a suitable sponsor or to reunite with their
respective parents, as directed by the Plaintiffs.” Mot. for TRO at 1, ECF No. 17; Mot. for TRO

1

The Defendants are: Jefferson B. Sessions III, Attorney General of the United States; Department of Homeland
Security (“DHS”); Kirstjen Nielsen, Secretary of DHS; U.S. Customs and Border Protection (“CBP”); Kevin K.
McAleenan, Commissioner of CBP; U.S. Immigration and Customs Enforcement (“ICE”); Ronald D. Vitiello,
Acting Director of ICE; U.S. Citizenship and Immigration Services (“USCIS”); L. Francis Cissna, Director of
USCIS; U.S. Department of Health and Human Services (“HHS”); Alex Azar, Secretary of the Department of
Health and Human Services; Office of Refugee Resettlement (“ORR”); and Scott Lloyd, Director of ORR. Compl.,
ECF No. 1.

at 1, ECF No. 43. Defendants opposed the motion. ECF No. 46. The Court held a hearing on July
11, 2018. ECF No. 52.
For the following reasons, the motion for a preliminary injunction is GRANTED IN
PART AND DENIED IN PART.
Recognizing, as all parties have, that the constitutional rights of J.S.R. and V.F.B. have
been violated, and that irreparable harm has occurred as a result, the motion for a preliminary
injunction is GRANTED and relief directed towards the effects of the constitutional violation
suffered by these minor children, namely trauma or more precisely, Post-Traumatic Stress
Disorder (“PTSD”), shall be provided.
At the upcoming hearing on Wednesday, July 18, 2018 at 11:00 a.m., each party shall
present a plan for addressing the children’s PTSD not only up to and including family
reunification, but also after it. Their respective parents, J.S.G. and A.B.A., are ordered to be at
this hearing and the Court therefore will issue writs of habeas corpus ad testificandum to ensure
their availability for testimony, to the extent warranted.
To the extent that J.S.R. and V.F.B. seek immediate reunification with their respective
parents, the motion for a preliminary injunction is DENIED. As further discussed below, such
relief is being addressed by another court. Indeed, these parents are class members and therefore
parties in that other case and any such relief should be obtained in and through that proceeding.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Facts2

Dr. Andrés Martin, M.D., M.P.H., a child psychiatrist with “more than twenty years of
experience interviewing, assessing, and treating vulnerable children, including survivors of

2

The facts are based on the parties’ written submissions, as well as testimony and oral argument at the July 11th
preliminary injunction hearing.

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trauma,” testified before the Court on July 11th. See Decl. of Andrés Martin (“Martin Decl.”),
Mot. for TRO, ECF No. 17-5 (listing numerous credentials and publications). Dr. Martin, a
professor of child psychiatry at the Child Study Center at Yale University School of Medicine, is
also the Medical Director of the children’s Psychiatric Inpatient Service at Yale-New Haven
Children’s Hospital, a sixteen-bed in-patient unit for children under age fourteen with serious
psychopathology. The Court found him to be qualified as an expert in child psychiatry.
Dr. Martin and a team of child psychologists interviewed J.S.R. and V.F.B. in Spanish on
July 1, 2018. Using two standardized instruments, they diagnosed both children with posttraumatic stress disorder (“PTSD”). The following facts are based on Dr. Martin’s testimony and
other information submitted by the parties. No other witnesses were called at the hearing,
although the Court considered the various affidavits and other documents submitted by the
parties.
1.

J.S.R.

Dr. Martin testified that J.S.R., a nine-year-old boy, fled with his father from Honduras
after his grandparents were murdered and the body of a family friend was left in his backyard.
While in Honduras, J.S.R. had witnessed gang violence, including witnessing his grandmother
dead, with her body tossed in a river and her neck split open. He also saw the dead body of
someone he knew from his neighborhood dropped in his backyard. That second murder was
blamed on his father by gang members who had made repeated threats to his father. Dr. Martin
reported that, as far as J.S.R. knew, his father was being framed for the murder.
J.S.R. has a strong and loving bond and relationship with his father, whom J.S.R.
identifies as the key protector and role model in his life. While the two were traveling, his father
would find work so that he could bring home food for J.S.R., and J.S.R. reported to Dr. Martin

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that there would be times when his father did not eat so that J.S.R. could eat. Dr. Martin
explained that the trip from Honduras to Texas was not itself a particularly traumatic event for
J.S.R.; it was long, arduous, hot, and there was hunger, but it was not itself traumatic.
J.S.R. and his father arrived in Hidalgo, Texas, and were confined in freezing
conditions—J.S.R. described being held in an “ice box” or “freezer”—and were eventually
transferred to an immigration detention center. J.S.R. described to Dr. Martin being puzzled and
surprised by the last time that he saw his father. He explained being told that his father was going
to sign some paperwork and that he would be right back, but he never returned.
According to Dr. Martin’s testimony, J.S.R. experienced being kept in a windowless cage
with other young children for approximately four days while he was being transferred to the
custody of the Office of Refugee Resettlement (“ORR”). He is now with Noank Community
Support Services, Inc. (“Noank”), in Groton, Connecticut. His father is now located at a
detention center in Texas. Before the filing of this lawsuit, J.S.R. had spoken with his father two
times over the three weeks at Noank.
Dr. Martin reported that J.S.R. does not sleep well, does not trust adults, and is depressed
and tearful. He is terrified of the prospect of returning to Honduras, because of his fear of gang
violence there and the harm that could befall his father or his family.
Dr. Martin successfully employed two standardized instruments commonly used for a
diagnosis of PTSD with J.S.R. The first, the trauma health questionnaire (“THQ”), is a list of a
wide array of potentially traumatic events. J.S.R. scored 14 out of a total of 23 points on that
scale. The second, the childhood post-traumatic stress symptom scale, quantifies the symptoms
of PTSD and has a maximum score of 51, with a score of 15 or higher qualifying a child for a
diagnosis of PTSD. According to Dr. Martin, J.S.R. scored 38, which Dr. Martin described as an

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extraordinarily high score. Dr. Martin testified that J.S.R. has a full-blown acute PTSD
symptomatology, on top of a chronic, traumatic background, resulting in a more pronounced
trauma.
2.

V.F.B.

According to Dr. Martin, V.F.B., a fourteen-year-old girl, fled with her mother from El
Salvador after her step-father was killed by a gang. They entered the United States mid-May
2018, and reportedly were held in freezing conditions near the border while they awaited
removal proceedings.
Dr. Martin observed that V.F.B. has a close-knit relationship with her mother. She has
learned crafting skills from her mother, and they have survived together through the murder of
V.F.B.’s step-father and an arduous trek from El Salvador to Texas. Dr. Martin explained that,
like J.S.R.’s journey, V.F.B.’s trip itself was not especially traumatic; the separation from her
mother, however, did result in considerable trauma.
One day at the detention center, V.F.B. went to take a shower. When she returned, her
mother was gone.
On May 16, 2018, the Government transferred V.F.B. to ORR custody and detained her
in Noank. Her mother is in a detention center in Texas. During the six weeks preceding this
litigation, V.F.B. had spoken with her mother once. She has since had more contact.
On July 1, 2018, Dr. Martin’s team interviewed V.F.B. and found her affect to be blunt
and flat. Uncomfortable talking about the material, she would hide her face behind her arm or
shy away from the interviewer. During the interview, she cried often.
The team attempted to apply the same two standardized instruments with V.F.B. On the
childhood post-traumatic stress symptom scale, V.F.B. scored 21 out of 51. A score of 15 or

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above is considered consistent with PTSD. The team had more difficulty using the trauma health
questionnaire because V.F.B. had difficulty answering many questions and often avoided them.
Dr. Martin considered her so distressed that she did not understand certain simple concepts and
therefore could not answer the questions coherently.
Dr. Martin expressed grave concern for the children if they are not reunited with their
families, and he testified that there likely will be both short-term and long-term physical and
mental health consequences for the children. He explained that symptoms of trauma, including
sleeplessness, depression, anxiety, tearfulness, and hopelessness, will not remit on their own, and
that the children are at risk for mental health consequences, including higher rates of depression,
anxiety, symptoms of PTSD, substance abuse disorders, and more. They are also at a higher risk
of physical conditions, such as cardio-vascular disease, diabetes, and even cancer.
Dr. Martin recommended that the most important remedy for both children would be to
take away the traumatic stressor, J.S.R.’s separation from his father and V.F.B.’s separation from
her mother. Dr. Martin also recommended that they be reunified in a non-stressful environment,
where they could have freedom of movement, space, safety, and access to schools. He also
recommended that the children have ongoing trauma-informed psychotherapy and care. He
expressed that the timing of the reunification mattered: that the children had already been
separated from their parents too long, and that every day adds to the gravity of their situation.
B.

Procedural History

On July 2, 2018, J.S.R. and V.F.B. each filed Complaints and petitions for habeas corpus.
Compl., ECF No. 1. Each plaintiff also filed a motion for a hearing. ECF No. 8. On July 3, 2018,
the Court granted the motion, ECF No. 9, and held a telephonic status conference. ECF No. 12.

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After the conference, the Court issued a scheduling order that set a briefing schedule and a date
for a hearing on an anticipated motion for a preliminary injunction. ECF No. 13.
On July 5, 2018, J.S.R. and V.F.B. each filed a motion for a temporary restraining order
or a preliminary injunction. ECF No. 17; ECF No. 43. That same day, J.S.R. and V.F.B. each
filed a motion for a writ of habeas corpus ad testificandum, seeking to compel the Government to
produce J.S.R., V.F.B., and their parents at the July 11th hearing. ECF No. 18.
The Court granted in part and denied in part the motion for a writ of habeas corpus ad
testificandum. Order on Motion for Writ, ECF No. 27; Supplemental Order on Motion for Writ,
ECF No. 37. The Court denied the motion to command the in-person appearance of J.S.R.’s
father and V.F.B.’s mother on July 11th. Order on Motion for Writ at 2. The Court required,
however, that the Government make appropriate accommodations to ensure that the parents
could speak with the children on July 9th and July 10th, and so that the parents could appear at the
July 11th hearing through a videoconference. Id. at 2, 8. The Court also commanded the presence
of J.S.R. and V.F.B. in person at the hearing. Supp. Order on Motion for Writ at 2.
The Court also noted that the Government is purportedly in the process of complying
with an Order from the Southern District of California, which, as relevant here, requires United
States Immigration and Customs Enforcement (“I.C.E.”) to, “[u]nless there is a determination
that the parent is unfit or presents a danger to the child, or the parent affirmatively, knowingly,
and voluntarily declines to be reunited with the child . . . reunify all Class Members [i.e., parents]
with their minor children age five (5) and over within thirty (30) days of the entry of this Order.”
Order on Motion for Writ at 3–4 (citing Ms. L. v. U.S. Immigration and Customs Enforcement
(“I.C.E.”), No. 18CV0428 DMS (MDD), 2018 WL 3129486, at *1 (S.D. Cal. June 26, 2018)
(the “California Order”)). The Order applies to the following class: “All adult parents who enter

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the United States at or between designated ports of entry who (1) have been, are, or will be
detained in immigration custody by [the United States Department of Homeland Security
(‘DHS’)] and (2) have a minor child who is or will be separated from them by DHS and detained
in the [Office of Refugee Resettlement (‘ORR’)], ORR foster care, or DHS custody absent a
determination that the parent is unfit or presents a danger to the child.” Ms. L., 2018 WL
3129466, at *3 n.5.
The Court ordered the Government to facilitate communication between J.S.R., V.F.B.,
their counsel, and their parents, on Monday, July 9th, Tuesday, July 10th, and Wednesday, July
11th. Order on Motion for Writ at 7. The Court also stated that, if it denied J.S.R.’s and V.F.B.’s
motions for preliminary injunctions, but the Government did not comply with the California
Order by July 26, 2018, the Court would hold another hearing on July 27, 2018, at 10:00 a.m.,
and a writ of habeas corpus ad testificandum would issue and the Government would be required
to make arrangements to transport J.S.R.’s father and V.F.B.’s mother to that hearing. Id. at 8.
The Court held another telephonic status conference on July 9, 2018. ECF No. 32.
Plaintiffs orally moved to consolidate the two cases, J.S.R. v. Sessions, No. 3:18-cv-1106, and
V.F.B. v. Sessions, No. 3:18-cv-1110. ECF No. 33. The Court granted the motion and
consolidated the cases into J.S.R and V.F.B. v. Sessions, No. 3:18-cv-1106. ECF No. 35.
Plaintiffs also filed motions for J.S.R.’s father, J.S.G., and V.F.B.’s mother, A.B.A.,
respectively, to appear as each child’s next friend. ECF Nos. 48, 49.
On July 11, 2018, the Court held a hearing on the motion for a preliminary injunction.
The parents appeared through video teleconference, and the Court granted Plaintiffs’ motions to
add each parent, in addition to Joshua Perry, as each child’s next friend. ECF Nos. 53, 54.3

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Before their parents were added as their next friends, the children were represented by and through their next
friend, Joshua Perry, who is the Deputy Director of Connecticut Legal Services. See ECF No. 18-4. On July 9, 2018,

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II.

STANDARD OF REVIEW
The Second Circuit applies similar standards for temporary restraining orders and

preliminary injunctions, “and district courts have assumed them to be the same.” See Foley v.
State Elections Enforcement Comm’n, No. 3:10CV1091 (SRU) (D. Conn. July 16, 2010), 2010
WL 2836722, at *3 (quoting Allied Office Supplies, Inc. v. Lewandowski, 261 F. Supp. 107, 108
n.2 (D. Conn. 2005)). Preliminary injunctive relief is an extraordinary remedy and is never
awarded as a matter of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” New York
Progress and Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Winter, 555 U.S. at
20); see also Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (“In most cases, a party seeking
to obtain a preliminary injunction must establish that it will suffer irreparable harm in the
absence of an injunction and demonstrate either (1) ‘a likelihood of success on the merits’ or (2)
‘sufficiently serious questions going to the merits to make them a fair ground for litigation and a

the Court issued an Order requesting that Plaintiffs more fully address Mr. Perry’s status as the children’s next
friend. ECF No. 36; see also Fed. R. Civ. P. 17(c)(2) (providing that a minor “who does not have a duly appointed
representative may sue by a next friend or by a guardian ad litem”); Whitmore v. Arkansas, 495 U.S. 149, 163–64
(1990) (explaining that burden is on “next friend” to establish “First . . . why the real party in interest cannot appear
on his own behalf to prosecute the action . . . . Second, the ‘next friend’ must be truly dedicated to the best interests
of the person on whose behalf he seeks to litigate,” and that some courts also require the “next friend” to “have some
significant relationship with the real party in interest.”).
Plaintiffs moved to add J.S.R.’s father, J.S.G., and V.F.B.’s mother, A.B.A., as their next friends, and at the
hearing, Plaintiffs explained that they intended to add the parents in addition to Joshua Perry. The Court granted the
motions, and with the additional presence of the children’s parents as next friends, the question of representation has
been properly addressed. Cf. T.W. by Enk v. Brophy, 124 F.3d 893, 897 (7th Cir. 1997) (“[T]he next friend must be
an appropriate alter ego for a plaintiff who is not able to litigate in his own right . . . ordinarily the eligible will be
confined to the plaintiff’s parents, older siblings (if there are no parents), or a conservator or other guardian, akin to
a trustee; that persons having only an ideological stake in the child’s case are never eligible; but that if a close
relative is unavailable and the child has no conflict-free general representative the court may appoint a personal
friend of the plaintiff or his family, a professional who has worked with the child, or, in desperate circumstances, a
stranger whom the court finds to be especially suitable to represent the child’s interests in the litigation.”).

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balance of the hardships tipping decidedly’ in the movant’s favor.”) (quoting Waldman Publ’g
Corp. v. Landoll, Inc., 43 F.3d 775, 779–80 (2d Cir. 1994)).
A court will presume that a movant has established irreparable harm in the absence of
injunctive relief if the movant’s claim involves the alleged deprivation of a constitutional right.
See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a
constitutional right is involved, most courts hold that no further showing of irreparable injury is
necessary.”) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2948, at 440
(1973)). “In deciding a motion for preliminary injunction, a court may consider the entire record
including affidavits and other hearsay evidence.” Johnson v. Newport Lorillard, No. 01 Civ.
9587 (SAS), 2003 WL 169797, at *1 (S.D.N.Y. Jan. 23, 2003).
III.

THE PARTIES’ ARGUMENTS
A.

J.S.R. and V.F.B.

Plaintiffs seek a preliminary injunction on the grounds that forcibly separating the
children from their parents: (1) violates the children’s substantive and procedural Fifth
Amendment due process rights; (2) denies the children’s equal access to the asylum program and
constitutes disability discrimination under the Rehabilitation Act; (3) violates the Administrative
Procedure Act; (4) and deprives the children of equal protection under the laws. Mot. for TRO at
10. Plaintiffs argue that, “[b]ecause the children are likely to succeed on the merits on these four
claims, and because the remaining applicable factors weigh in favor of Plaintiffs, this Court
should grant J.S.R. and V.F.B. a temporary restraining order or, in the alternative, preliminary
injunctive relief.” Id.
First, Plaintiffs argue that J.S.R. and V.F.B., as persons in the United States, have been
deprived of their substantive due process rights under the Fifth Amendment of the United States

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Constitution. Mot. for TRO at 10–11. Plaintiffs argue that they have “a protected liberty interest
in being reunited with their parents.” Id. at 11. Plaintiffs also argue that “the government lacks
any legitimate, let alone compelling, interest in the separation of these children from their
families.” Id. at 11–12.
Plaintiffs argue that “[d]ue process forbids the government from separating parents and
their children unless there is a case-specific determination that separation is in the best interests
of the child—as, for instance, when the child is in danger or the parent is shown to be unfit.” Id.
at 12. Plaintiffs argue that there has not been and could not be a case-specific determination that
J.S.R. and V.F.B. should have been separated from their parents, and that instead, the separation
has caused “significant and on-going trauma.” Id.
Plaintiffs also argue that they are likely to succeed on their claim that Defendants have
violated J.S.R. and V.F.B.’s procedural due process rights under the Fifth Amendment because
they were forcibly separated from their parents “without any—let alone the constitutionallyrequired—process that is due before families can be indefinitely split up.” Mot. for TRO at 13.
Plaintiffs argue that procedural due process would have required a pre-deprivation hearing before
the Government could separate children from their parents, given “the enormous stakes of
removing a child from the care of their parents and placing them into the custody of the state.”
Id. at 14. Here, Plaintiffs argue, “Defendants failed to provide any process at all, before or after,
tearing J.S.R. and V.F.B. from their parents.” Id. Plaintiffs argue that, “[a]t the very least,
procedural due process requires affected parties be given notice and a set of procedural
opportunities to protect their liberty interests.” Id.
Plaintiffs also argue that, by separating these children, who are currently suffering from
PTSD, from their parents, the Government has “further limited the children’s ability to access . .

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. the most crucial support the children need at this moment—their parents—and thereby is
unlawfully denying them equal access to a federal program.” Mot. for TRO at 15; see 29 U.S.C.
§ 794(a). Plaintiffs argue that the children are suffering from trauma-related mental disabilities,
both as a result of their forced separations from their parents and also as a result of trauma they
endured before entering the United States.
Plaintiffs argue that Defendants “are violating the Rehabilitation Act through their failure
to provide J.S.R. and V.F.B. reasonable accommodations in the asylum, removal, and sponsor
placement processes.” Id. at 18. Plaintiffs argue that “Defendants have failed to implement
available and reasonable accommodations, such as reuniting the children with their parents and
releasing them from detention.” Id. Plaintiffs also argue that “Defendants intentionally are
preventing the children from turning to their parents for counsel and assistance in coping with,
processing, and speaking about the experiences of violence, persecution, and loss that contributes
to their disability and form the basis for their asylum claims.” Id. at 19.
Plaintiffs also argue that Defendants’ actions violate the Administrative Procedure Act
(“APA”) because Defendants have failed to give adequate reasons for their actions, and
Defendants have instead arbitrarily and capriciously separated the children from their parents,
sacrificing their “important and fundamental rights” without a legitimate reason for doing so. Id.
at 19–21.
Finally, Plaintiffs argue that Defendants’ decision to separate the children from their
parents was driven by animus against individuals of Latino ethnicity. Id. at 23. Plaintiffs argue
that “Defendants’ coerced family separation policy, while facially neutral, violates equal
protection for two reasons: (1) it was applied in a discriminatory fashion, and (2) it was
motivated by discriminatory animus and resulted in a discriminatory effect.” Id. at 24. Plaintiffs

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argue that the policy discriminated against people in the “Northern Triangle” of Central America,
including Honduras and El Salvador, the countries from where J.S.R. and V.F.B. came,
respectively. Id. They also assert that “the consistently racialized statements of the president and
his top advisers demonstrate that their family separation policy was motivated by animus, and
the evidence shows that it resulted in a discriminatory effect.” Id. at 25.
B.

The Government

Defendants object to Plaintiffs’ motion for a preliminary injunction. Defendants argue
that Plaintiffs’ lawsuits, which seek reunification by July 13, 2018, interfere with the
Government’s ongoing effort to implement the relief ordered in Ms. L., 2018 WL 3129486. Opp.
to Mot. for TRO at 25–26. Defendants argue that there is substantial overlap with Ms. L., and
that “[d]uplicative litigation is disfavored in the federal courts because of the risk of inconsistent
judgments, as well as the waste of the parties’ and judicial resources.” Id. at 27. Defendants
argue that they have “already undertaken extensive efforts towards compliance with the
preliminary injunction order.” Id. at 29.
Defendants “do not dispute plaintiffs’ allegation that their separation from their parents
was, and remains, traumatic,” and instead argue that “Plaintiffs are receiving excellent care, both
medical and otherwise, in the most least restrictive environment available.” Id. at 30. Defendants
represent that they are “willing to comply with any reasonable accommodation requests made on
behalf of the children,” but that they “have received no accommodation requests relating to
providing care to the Plaintiffs.” Id.
Defendants explain that Noank is licensed by the State of Connecticut to provide
residential care to children, and that it is “set up much like a group home and is located near the
Mystic River.” Id. at 31. Defendants state that it is staffed “with a teacher, medical coordinator,

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clinician, case manager, supervisor, director as well as 8 youth care workers,” that the children
attend school, and that they “engage in a variety of recreational activities daily at local parks in
the community or at the local YMCA.” Id. Defendants assert that J.S.R. plays soccer and “is also
a great artist and is constantly surprising his therapists with pictures he has drawn.” Id.
Defendants assert that V.F.B. is social with other teenage girls, does art projects, and plays
basketball. Id. Defendants assert that both children are in “excellent health,” neither takes
medication, and “the medical coordinator has not reported any concerns that the children have
any mental health conditions which warrant psychiatric treatment or psychotropic medications.”
Id. Defendants represent that the children receive weekly individual counseling, semi-weekly
group therapy, and that they frequently drop in to say hello to their therapist without an
appointment. Id. at 32.
Defendants argue that, according to the “mental health clinician working directly with
Plaintiffs, neither child has demonstrated severe emotional distress or physical reactions as a
result of being separated from their parents,” and that “[t]here are likewise no recent reports of
nightmares, flashbacks, or depressed mood.” Id. at 33–34. Defendants argue that, “[w]hile the
Plaintiffs at times are appropriately sad and tearful when they speak to their respective parents,
and would, of course, like to be reunified with their parents or another relative as soon as
possible, they are now adjusting well to life at Noank and have expressed some joy and
happiness in taking part in ordinary recreational activities provided for the children at the
shelter.” Id. at 34.
Finally, Defendants represent that the Government is in the process of reuniting J.S.R.
and V.F.B., and will continue to make efforts to comply with the California Order. Specifically,
one of V.L.B.’s aunts “submitted a sponsorship application yesterday, July 9, 2018,” but the

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“application is incomplete because Plaintiff V.F.B.’s mother has not yet decided whether to sign
a consent form in support of the application.” Id. at 35–36. And, the Government represents,
“agents were working on Plaintiff J.S.R.’s reunification with his father prior to the filing of this
litigation and the agents have continued working on this process[.]” Id. at 36.
IV.

DISCUSSION
Both parties in this case have recognized that the constitutional rights of J.S.R. and

V.F.B. have been violated, and that irreparable harm has and will continue to result. See, e.g.,
Mot. for TRO at 12 (arguing that family separation is unconstitutional and that it has caused
“significant and on-going trauma” to J.S.R. and V.F.B.); see also Opp. to Mot. for TRO at 25–26
(noting that the Government is implementing, not challenging, the relief ordered by the Southern
District of California in Ms. L.); id. at 30 (conceding that the children’s “separation from their
parents was, and remains, traumatic”).
The Government argues, however, that the Court should deny preliminary injunctive
relief so that the Government has a meaningful opportunity to comply with the California Order
and reunite the children affected by that Order, including J.S.R. and V.F.B., by July 26. Id. at 36.
For the following reasons, the Court agrees in part and disagrees in part. The Court grants
preliminary injunctive relief to address the constitutional injury that the parties agreed occurred,
namely the children’s trauma as a result of their unconstitutional separation from their parents.
The Court denies preliminary injunctive relief requiring the immediate reunification of the
children with their parents, a matter before another court.
A.

Likelihood of Success on the Merits

First, the Court finds that Plaintiffs are likely to succeed on the merits of their claim that
J.S.R. and V.F.B. suffered a constitutional violation. The Government has not challenged the

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California Order, and the parties agree that a constitutional violation occurred when the
Government separated children from their parents—both on the basis of substantive due process,
as the separation deprived the children of their right to family integrity, and procedural due
process, as J.S.R. and V.F.B. were given no notice and no fair opportunity for a hearing before
being separated from their parents. See Ms. L., 2018 WL 3129486, at *8 (“This practice of
separating class members [i.e., migrant parents] from their minor children, and failing to reunify
class members with those children, without any showing the parent is unfit or presents a danger
to the child is sufficient to find Plaintiffs have a likelihood of success on their due process
claim.”); cf. Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting “absence of dispute
reflect[ing] historical recognition that freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth Amendment”); Southerland v. City of
New York, 680 F.3d 127, 142 (2d Cir. 2012) (“The Fourteenth Amendment imposes a
requirement that except in emergency circumstances, judicial process must be accorded both
parent and child before removal of the child form his or her parent’s custody may be effected.”);
Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural due process imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”).
The Court agrees that the Government violated J.S.R.’s and V.F.B.’s constitutional rights
by forcibly removing them from their parents without due process of law. The Government
failed to provide the children with notice or a hearing, instead taking their parents, while
distracting the children. See Brock v. Roadway Express, Inc., 481 U.S. 252, 261 (1987) (“Though
the required procedures may vary according to the interests at stake in a particular context ‘the
fundamental requirement of due process is the opportunity to be heard at a meaningful time and

16

in a meaningful manner.”) (quoting Mathews, 424 U.S. at 333). Even now, the Government has
not established a compelling reason for depriving the children of their family integrity—
depriving them of their primary and only consistent source of support—or that its policy was
narrowly tailored to achieve that compelling reason. See Stanley v. Illinois, 405 U.S. 645, 658
(1972) (“The integrity of the family unit has found protection in the Due Process Clause of the
Fourteenth Amendment [and] the Equal Protection Clause of the Fourteenth Amendment.”)
(internal citations omitted); see also Bohn v. Cty. of Dakota, 772 F.2d 1433, 1435 (8th Cir. 1985)
(“The privacy and autonomy of familial relationships involved in a case like this are unarguably
among the protectable interests which due process protects. We can conceive of no more
important relationship, no more basic bond in American society, than the tie between parent and
child.”).
The Court’s conclusion is also supported by the California Order. Although that case
considered a class of parents, not children, it held that the parents’ constitutional rights were
violated when they were separated from their children, and that this constitutional violation
required reunification. Ms. L., 2018 WL 3129486, at *11 (“What Plaintiffs do seek by way of the
requested injunction is to uphold their rights to family integrity and association while their
immigration proceedings are underway. This right, specifically, the relationship between parent
and child, is constitutionally protected and well established.”) (internal quotation marks and
citations omitted).
Obviously, the children will be beneficiaries of that remedy, and this Court acknowledges
that the harm that the Government caused to the children is connected with the harm that the
Government caused to the parents, as the Southern District of California identified. Id. at *9
(explaining that family separation policy has caused irreparable harm to parents partly because of

17

pain inflicted on their children, and noting that “parents, however, are not the only ones suffering
from the separations,” and that “there is ample evidence that separating children from their
mothers or fathers leads to serious, negative consequences to children’s health and
development,” including higher rates of anxiety, depression, PTSD, and more). The California
Order therefore, while it did not directly address the children’s constitutional harm, has a
collateral impact on the children and on this Court’s approach to this case.
The Court therefore finds that Plaintiffs are likely to succeed on the merits of their
constitutional claim.
B.

Irreparable Injury

Having established that a constitutional claim has occurred, Plaintiffs are entitled to a
presumption that an irreparable injury has occurred. See Mitchell, 748 F.2d at 806 (“When an
alleged deprivation of a constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary.”) (quoting 11 C. Wright & A. Miller, Federal Practice and
Procedure, § 2948, at 440 (1973)). Here, Plaintiffs have also offered more than enough evidence
to establish that the Government’s actions traumatized J.S.R. and V.F.B., therefore establishing
an irreparable injury. See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d
Cir. 1989) (“To establish irreparable harm, plaintiffs must demonstrate an injury that is neither
remote nor speculative, but actual and imminent.”) (internal quotation marks and citation
omitted); see also Levia-Perez v. Holder, 640 F.3d 962, 969–70 (9th Cir. 2011) (“In addition, as
we have previously held, ‘[o]ther important [irreparable harm] factors include separation from
family members, medical needs, and potential economic hardship.’”) (quoting Andreiu v.
Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc)).

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Dr. Martin offered evidence that J.S.R. struggles to sleep, distrusts adults, and is
depressed and tearful. Dr. Martin found that J.S.R. is suffering from PTSD, and that he had an
extraordinarily high score on the childhood post-traumatic stress symptom scale, as a result of
the acute trauma of being separated from his father, an adult with whom he has a loving,
supportive relationship. Dr. Martin offered evidence that V.F.B. is tearful, avoidant, and has a
blunted and flat affect. She had a score consistent with PTSD on the childhood post-traumatic
stress symptom scale, and Dr. Martin explained that she was so distressed that she had trouble
answering many of his questions. Even if this Court did not presume irreparable harm, as it
should, this evidence firmly establishes it.
As a result, the Court finds that Plaintiffs likely would succeed on the merits of their
motion for a preliminary injunction, and that Plaintiffs established that the Government violated
J.S.R.’s and V.F.B’s constitutional rights to due process and caused them irreparable harm. See
Walsh, 733 F.3d at 486 (noting that, first, the plaintiff “must establish that he is likely to succeed
on the merits, [and] that he is likely to suffer irreparable harm in the absence of preliminary
relief”).
C.

Balance of the Equities and the Public Interest

Finally, the Court must determine whether “the balance of equities tips in [Plaintiffs’]
favor” and whether “an injunction is in the public interest.” Walsh, 733 F.3d at 486; see also
Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.”). “As with irreparable injury, when a plaintiff establishes ‘a likelihood that
Defendants’ policy violates the U.S. Constitution, Plaintiffs have also established that both the

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public interest and the balance of the equities favor a preliminary injunction.’” Ms. L., 2018 WL
3129486, at *10 (quoting Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir.
2014)).
Defendants argue that, although Plaintiffs have suffered a constitutional violation, and
although the trauma of the unconstitutional separation has harmed them, the balance of the
equities and the public interest disfavor this Court issuing a preliminary injunction because that
order could interfere with the Government’s ability to comply with the relief ordered in Ms. L.,
2018 WL 3129486. Opp. to Mot. for TRO at 25–26. Defendants also argue that the Court should
avoid entering an order duplicative of the California Order. Id. at 27 (“Duplicative litigation is
disfavored in the federal courts because of the risk of inconsistent judgments, as well as the
waste of the parties’ and judicial resources.”) (citing Barapind v. Reno, 225 F.3d 1100, 1109 (9th
Cir. 2000); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988)).
The Court agrees with Defendants, but only to the extent that the California Order will
provide relief for J.S.R.’s and V.F.B.’s constitutional harm through reunification. This Court thus
will avoid duplicating the California Order and the relief provided by that court.
But the California Order addresses a constitutional harm suffered by a class of parents—
not the children who are Plaintiffs here. The cases that Defendants cite, admonishing courts to
avoid duplicative litigation, therefore are distinguishable because they involve cases “where a
complaint involving the same parties and issues has already been filed in another district.”
Barapind, 225 F.3d at 1109; see also Gillespie, 858 F.2d at 1102–03 (“[T]he individual class
member should be barred from pursuing his own individual lawsuit that seeks equitable relief
within the subject matter of the class action.”) (quoting Green v. McKaskle, 770 F.2d 445, 446–
47 (5th Cir. 1985)). And even though J.S.R. and V.F.B. will benefit from the remedy required by

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the California Order, that court necessarily considered only the harms suffered by the class of
Plaintiffs before it—parents—and not the two Plaintiffs before this Court—J.S.R. and V.F.B.
The Court therefore finds that the balance of the equities and the public interest both
favor a preliminary injunction, to the extent that it can address the particular harms that J.S.R.
and V.F.B. have suffered, and to the extent that those harms are not already being remedied by
the California Order. See, e.g., Milliken v. Bradley, 418 U.S. 717, 738 (1974) (“Traditionally,
equity has been characterized by a practical flexibility in shaping its remedies and by a facility
for adjusting and reconciling public and private needs.”); id. at 744 (“The controlling principle
consistently expounded in our holdings is that the scope of the remedy is determined by the
nature and extent of the constitutional violation.”).
At the July 11th hearing, Plaintiffs indicated that, although they wanted immediate relief
in the form of reunification and release for J.S.R. and V.F.B. and their parents, if the Court were
not inclined to grant that relief, they would request that the Court order continued daily
videoconferences with the parents, order the Government to provide a clear timeline so that the
parents and the children could know what to expect, and order psychotherapy for the children.
J.S.R. and V.F.B. are entitled to relief to address the consequences of the Government’s
unconstitutional separation of them from their parents, a harm, based on Dr. Martin’s unrebutted
testimony, likely to continue even after family reunification.4
At the upcoming status conference on July 18, 2018 at 11:00 a.m., the parties shall
address the form of this relief for J.S.R. and V.F.B., both before and after family reunification.

4

To the extent that Plaintiffs also sought relief under the Rehabilitation Act, 29 U.S.C. § 794(a), the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A), and the Equal Protection Clause of the Fourteenth Amendment, the Court need
not reach those claims because the only remedies that the Court will address are related to the trauma that Plaintiffs
endured, which is being adequately remedied by the Court’s decision based on the Due Process Clause of the Fifth
Amendment. To the extent that Plaintiffs seek reunification and release under any of these alternative theories, as
discussed above, the Court will not duplicate relief for those who are a part of a class action governed by the
California Order.

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The Court will issue writs of writs of habeas corpus ad testificandum to have the parents of
J.S.R. and V.F.B. present for this proceeding. The Court will also issue writs of habeas corpus ad
testificandum to have J.S.R. and V.F.B. present for the proceeding. As noted in the Court’s
previous order, “[i]f the Court determines at the July 11th hearing that immediate constitutional
relief is warranted before July 26th or that additional proceedings are necessary before July 26th
and these proceedings require the physical presence of J.S.R.’s father [or V.F.B.’s mother], then
the Court will consider such relief at that time.” Order at 7, ECF No. 27; see also V.F.B. v.
Sessions, No. 3:18-cv-1110, Order at 7, ECF No. 18 (regarding V.F.B. making the same
pronouncement). Because this proceeding will now address specific constitutional relief related
to the well-being of the children, the Court believes it necessary to have them and their parents
there, in the event any testimony is necessary from either of the children or their respective
parents.
Additionally, while modern technology provides opportunities for the virtual presence of
parties and witnesses at court proceedings beyond what historically had been possible, the
logistical challenges presented by the July 11th preliminary injunction hearing make clear the
necessity of their physical presence, at least for the July 18th proceeding.
V.

CONCLUSION
The Court therefore orders the following:


The Court will hold a status conference on July 18, 2018, at 11:00 a.m., in Courtroom
Two, 915 Lafayette Boulevard, Bridgeport, Connecticut.



At the July 18th hearing, each party shall present a plan for addressing the children’s
trauma as a result of the Government’s unconstitutional separation of the children from
their parents.



The Court GRANTS Plaintiffs’ motion for writs of habeas corpus ad testificandum for
J.S.G. and A.B.A. ECF No. 56. Those writs will follow in a subsequent order. The
parents shall be brought to Courtroom Two, 915 Lafayette Boulevard, Bridgeport,
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Connecticut, at 9:00 a.m. on July 18, 2018, and shall remain there until the conclusion of
the hearing.


The Court will also issue writs of habeas corpus ad testificandum for J.S.R. and V.F.B.,
who shall also be brought to Courtroom Two, 915 Lafayette Boulevard, Bridgeport,
Connecticut, at 9:00 a.m. on July 18, 2018, and shall remain there until the conclusion of
the hearing.



The Government is directed to continue to facilitate video teleconferences between J.S.R.
and his father, and between V.F.B. and her mother, on a daily basis between July 13,
2018, and July 18, 2018. The Court will determine whether to continue this contact at the
July 18th hearing.
SO ORDERED at Bridgeport, Connecticut, this 13th day of July, 2018.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

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