D.J.C.V. v. United States

Background

D.J.C.V., a minor child, and G.C., his father, sued the United States over their separation by federal authorities after they entered the United States on April 30, 2018. The first period of separation began on May 2, 2018, when Department of Homeland Security agents separated D.J.C.V. from G.C. and detained G.C. It lasted until October 10, 2018, when G.C. was released from detention. The second period lasted from October 10 until October 15, 2018, when the two were reunited after a federal court ordered D.J.C.V.’s release.

The plaintiffs asserted claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress under the Federal Tort Claims Act, or FTCA. They also asserted claims for torture, persecution, and inhumane acts under the Alien Tort Statute. In an earlier decision, the court granted the Government’s motion to dismiss the Alien Tort Statute claims, denied dismissal of the FTCA claims concerning the second separation period, and ordered limited jurisdictional discovery concerning the first period.

Issue Before the Court

The remaining question was whether the first separation resulted from the Trump Administration’s Zero Tolerance policy and related Mandatory Referral policy, or from G.C.’s criminal history. This mattered because the FTCA generally preserves the United States’ immunity from tort lawsuits when certain exceptions apply. The Government relied on the discretionary function exception and the due care exception.

The discretionary function exception protects the Government from claims based on discretionary actions involving judgment and policy considerations. The due care exception applies to claims based on an employee’s careful execution of a statute or regulation. If either exception applied, the court would lack subject-matter jurisdiction over the FTCA claims.

The Court’s Findings

The court applied a preponderance-of-the-evidence standard and considered evidence outside the complaint because the parties disputed facts relevant to jurisdiction. It found that the contemporaneous records consistently identified G.C.’s criminal history, including his aggravated-assault conviction, as the reason for the separation. Those records included an email requesting separation, a government immigration form, and a regional family-separation tracker.

The court found no record linking the Zero Tolerance or Mandatory Referral policies to the decisions concerning G.C. and D.J.C.V. It also found that the Mandatory Referral policy was not yet authorized or effective in the relevant sector when G.C. was referred for prosecution on May 1, 2018. The court rejected the plaintiffs’ argument that references to G.C.’s criminal history were pretextual.

The court separately examined two decisions: the decision by border-patrol officials to refer G.C. for prosecution and the decision by Immigration and Customs Enforcement to place him in secure detention. It found that the prosecution referral was made under the discretionary framework that existed before the Mandatory Referral policy and was based on G.C.’s criminal history. It also found, based on circumstantial evidence about detention practices and facilities, that ICE placed G.C. in a secure facility because of his violent criminal record and that the facility could not house D.J.C.V. with him.

The court also rejected or declined to consider several alternative theories raised after discovery, including challenges to designating D.J.C.V. as an unaccompanied child, failing to reevaluate that designation after the prosecution was declined, and an alternative due-process theory. The court found that some of these theories were outside the claims presented in the complaint or had not been developed earlier in the case.

Disposition

The court held that the first separation period was based on G.C.’s criminal history, not the Zero Tolerance policy. It held that the discretionary function and/or due care exceptions applied to the FTCA claims arising from that period. Judge Paul A. Engelmayer therefore granted the Government’s motion to dismiss those FTCA claims. The court directed that the FTCA claims concerning the second separation period proceed to discovery and directed the Clerk of Court to terminate all pending motions.