A Milbank LLP pro bono team filed a Complaint for damages today under the Federal Tort Claims Act on behalf of a father and daughter who were forcibly separated and incarcerated when they sought asylum in May 2018 at an official US border crossing. The father and daughter asked for asylum at the border crossing in May 2018, but encountered the Trump Administration’s “Zero Tolerance” family separation strategy, by which the Administration sought to deter lawful immigration by taking children from their parents.
Customs and Border Protection (CBP) agents forcibly took the then-twelve-year-old daughter from her father and sent her to a detention facility for unaccompanied children, under the jurisdiction of the US Department of Health and Human Services (H&HS). The girl stayed at the detention facility for weeks, without knowing whether she would ever see her father again. Meanwhile, CBP turned the father over to Immigration and Customs Enforcement (ICE), which incarcerated him in Texas and Georgia for months, moving him periodically in chains and leg irons, without explanation. The father was never apprised of any charges against him, nor of a reason for his incarceration.
While in ICE custody, the father was not provided with access to counsel, nor was he provided with medical care when he became visibly and seriously ill. Eventually, ICE officials lied about the asylum process and told the man that he would never be able to obtain asylum in the United States. They deported the father in August 2018, in express violation of two orders that had by then been entered against ICE in the Ms. L. case in the Southern District of California.
After months of contentious litigation in the Ms. L case, Judge Dana Sabraw of the S.D. California ordered (in September 2019) that ICE facilitate the father’s return to the United States to be reunited with his daughter to pursue their asylum claim. Judge Sabraw reviewed the entire record of ICE documents relating to the father’s deportation before he ruled that the deportation was “unlawful.” Nevertheless, ICE did not facilitate the father’s return for four more months – until January 2020.
Throughout much of 2021, the Biden Administration negotiated with a group of lawyers representing families that experienced the devastating effects of family separation under the prior administration. The Biden Administration withdrew from the negotiations late in 2021 without explanation, leaving thousands of affected families to bring individual lawsuits if the families could find counsel to do so. To date, less than 30 such lawsuits have been filed. Approximately 5,000 families experienced family separation under the Trump Administration in 2017 and 2018.
Milbank also represents the family in its asylum case pending in a Department of Justice “administrative” immigration court in Los Angeles. Immigration court “judges” do not have the independence of federal judges under Article III of the Constitution. The immigration court judge appointed to determine the father and daughter’s asylum claims in Los Angeles, worked as a lawyer for DHS and ICE for most of her career – until October 2021, and throughout the entire period of events at issue.
The Milbank team is led by senior consulting partner Linda Dakin-Grim and includes associates Asena Baran and Lya Ferreyra, and case manager Jenifer Gibbs.
May 2, 2022
