Constitutional Democracy

Migrant Parents and Due Process

The Trump Administration actions and policies to separate children from their migrant parents at the border and U.S. Courts defined Due Process.

June 27, 2018 Update:

United State District Judge Sabraw issued an order directing ICE to reunite the children with their migrant parents and granting a preliminary injunction for Case No.: 18cv0428 DMS (MDD) late Tuesday, June 26, 2018. To read the complete document click on order. Below are some of the terms of the order.

Pages 22,23,24 of court order

The unfolding events — the zero tolerance policy, EO and DHS Fact Sheet — serve to corroborate Plaintiffs’ allegations. The facts set forth before the Court portray reactive governance — responses to address a chaotic circumstance of the Government’s own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution. This is particularly so in the treatment of migrants, many of whom are asylum seekers and small children. The extraordinary remedy of classwide preliminary injunction is warranted based on the evidence before the Court. For the reasons set out above, the Court hereby GRANTS Plaintiffs’ motion for classwide preliminary injunction, and finds and orders as follows:
Unless 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: (a) Defendants must reunify all Class Members with their minor children who are under the age of five (5) within fourteen (14) days of the entry of this Order; and (b)Defendants must reunify all Class Members with their minor children age five (5) and over within thirty (30) days of the entry of this Order.

June 26, 2018

There is a case pending which addresses the Trump Administration separation of children from their migrant parents at the border and how those actions and policies violate due process. The case is filed in the United States District Court, Southern District of California, Ms. L. and Ms. C. vs. U.S. Immigration and Customs Enforcement (“ICE”), Case No.: 18cv0428 DMS (MDD), The Honorable Dana M. Sabraw.

Below are quotes from Judge Sabraw’s order which denies ICE’s motion to dismiss.

…. page 13 of order

The parties do not dispute the following bedrock principles. The Constitution protects everyone within the territory of the United States, regardless of citizenship. (Br. of Scholars of Immig. and Const. Law as Amici Curiae at 3 , ECF No. 23 – 1) (citing Yick Wo v. Hopkins, 118 U.S. 356, 368 – 69(1886)). “Repeatedly and consistently, the Supreme Court and the Ninth Circuit have held that non – citizens physically on U.S. soil have constitutional rights, including the right to due process of law.” ( Id. at 4) (citing, among other cases, Matthews v. Diaz , 426 U.S. 67, 77 (1976) (stating “there ‘are literally millions of aliens within the jurisdiction of the United States ’” and “‘the Fifth Amendment … protects every one of these persons[.] ’ ”)) . “Aliens,” therefore, have substantive due process rights under the Constitution.

… page 14 of order

Further, it has long been settled that the liberty interest identified in the Fifth Amendment provides a right to family integrity or to familial association. See U.S. Const. amend. V (stating no person shall “be deprived of life, liberty, or property, without due process of law.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (stating “the relationship between parent and child is constitutionally protected.”). Indeed, “[t]he 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 recognized by” the Court. Troxel v. Granville , 530 U.S. 57, 65 (2000);see also Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“The substantive due process right to family integrity or to familial association is well established.”). In sum, there is no dispute the constitutional right to family integrity applies to aliens like Ms. L. and Ms. C.

… page 15 of order

What Plaintiffs challenge is the Government’s separation of Migrant parents and their minor children when both are held in immigration detention and when there has been no showing the parent is unfit or poses a danger to the child. Plaintiffs assert separation of parents and minor children under such circumstances violates their due process rights.

… page 20 of order

Where substantive due process applies to the particular circumstances alleged, as here, the “threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).

… page 23 of order

At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.

… page 25 of order

For the reasons set out above, the Court grants in part and denies in part Defendants’ motion to dismiss. Specifically, the Court grants Defendants’ motion to dismiss Plaintiffs’ claims under the APA and the Asylum Statute, and denies Defendants’ motion to dismiss Plaintiffs’ due process claim. Although Plaintiffs did not request leave to amend in the event any portion of Defendants’ motion was granted, the Court grants Plaintiffs leave to file a Second Amended Complaint that cures the pleading deficiencies set out above. If Plaintiffs wish to do so, they shall file their Second Amended Complaint on or before July 3, 2018.

June 6, 2018