Justice department fights asylum seeker’s lawsuit over separation from her son | New York

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New York

After pair was separated for two years, suit shines light on Biden administration’s response to separation policy

Sun 27 Aug 2023 06.00 EDT

When Leticia and her 15-year-old son, Yovany, crossed the US-Mexico border six years ago to escape violence in Guatemala, whatever hopes they had for an American dream soon spiraled into a nightmare. Within one day, US immigration authorities had separated the now 37-year-old from her teen boy, leading to a years-long fight for unification.

Leticia and Yovany, who waited more than two years to be reunited, have filed suit in Brooklyn federal court over their separation and detention conditions that could shine light on the shadowy process behind family separation. Leticia and Yovany are pseudonyms used in court filings.

Moreover, court papers filed this week offer insight into US officials’ continued efforts to evade legal responsibility for separations despite the Biden administration’s public promise to reunite separated families.

The US justice department is attempting to dismiss their suit with arguments ranging from mundane to bizarre – including claims that an act to protect children from human trafficking permitted Yovany’s separation from his mother.

Leticia and Yovany’s harrowing saga started around late November 2017. They crossed the Rio Grande into Texas and were detained by US border agents.

Officers brought them to a facility known as a “hielera”– icebox or cooler – due to its frigid temperatures. While they were still wet from crossing the river, officers told them to take off their shoes and sweaters but didn’t provide them dry clothing and took hours to provide food, papers allege.

Early the following morning, Leticia and Yovany were told they could rest. She was brought into a room for women while Yovany was brought into a room for men, court papers state.

Shoes are left by people at the Tornillo port of entry near El Paso, Texas, in June 2018. Photograph: Brendan Smialowski/AFP/Getty Images

Another detained immigrant woke Leticia around 6 or 7am to tell her that Yovany had been taken away. Desperate for information about her son, she banged on the door. When an officer finally opened it, he allegedly said: “I don’t know where your son is, I’m just starting my shift.”

It took a month of begging and pleading to learn Yovany’s whereabouts.

Immigration officers gave her a list of phone numbers of places where he might have been moved, court papers contend. Leticia, who had never used a phone, didn’t know what to do. Another woman helped her and she tracked Yovany to an Arizona detention center.

Yovany, terrified after being separated from his mother, also repeatedly asked for information about her during that month. “He did not know why he had been separated from his mother, where she was, why staff would not tell him why they had been separated, or if he would ever see her again,” court papers state.

While the first stage of Leticia’s asylum-seeking efforts was successful, an immigration officer allegedly told her that she would still be detained – leaving Yovany in custody – while her case wound through the process, which she thought could take years.

Leticia believed the only way to free him from detention was if she were no longer detained. She withdrew her asylum claim and agreed to deportation in an effort to secure his release.

She was deported from the US in June 2018. Her fortunes changed, however, when a federal judge determined that Leticia’s decision to withdraw her asylum claim was not voluntary.

The court ordered that Leticia be permitted back into the US to pursue her asylum claim. She and Yovany were reunited at New York City’s LaGuardia airport in winter 2020. Yovany was granted asylum; his mother’s case is pending.

They filed suit in December 2022, alleging intentional infliction of emotional distress, negligence, abuse of process, assault and battery. They are represented by the Asylum Seeker Advocacy Project and private attorneys including Alex Spiro.

In pushing to dismiss the case, justice department lawyers argue that a federal law permitting lawsuits against the government does not apply to Leticia and Yovany’s legal claims. In essence, they claim that these allegations involve “discretionary” decisions “susceptible to policy analysis”, rather than misconduct one can sue over.

They claim that the decision to separate Leticia and Yovany was among these “discretionary” decisions. The government contends that officials could lawfully choose to detain Leticia pending her immigration proceedings and deem Yovany an “unaccompanied alien child” (UAC) under an anti-trafficking act, enabling separation.

Government attorneys are also claiming that they can’t be held liable for Leticia and Yovany’s alleged mistreatment at private detention facilities. While justice department attorneys recognize that the federal government isn’t off the hook for behavior of its private contractors, the “‘critical element’ is whether the government has the power to ‘to control the detailed physical performance of the contractor’ …and to supervise ‘day-to-day operations’”.

Lawyers for the department also contend that Leticia and Yovany cannot claim emotional distress as a result of their separation.

The separation, they claim, was “a direct result of the enforcement of federal law”. Immigration detention is part of federal law enforcement and as such, “the risk of interference with the parent-child relationship is inherent to immigration detention”, they write.

The justice department’s decision to litigate family separation cases such as Letitia and Yovany’s has raised questions and criticism among immigrants and their advocates, after Joe Biden described Donald Trump’s family separation policy as “abhorrent”.

Michael Wildes, an immigration lawyer and the Democratic mayor of Englewood, New Jersey, said: “No family should have been separated, and the justice department should be confronting its current challenges – and not protecting an administration that has come and gone.”

“The Biden administration is defending policy that was unacceptable to America, and our national heritage of immigration,” Wildes said.

The justice department, Wildes said, could decide not to fight these claims, saying officials have prosecutorial discretion. “When it comes to civil litigation and others, the justice department could change its perspective rather than pursuing a thankless avenue.”

Some caution that it’s not so easy for the department to simply stop defending claims despite a presidential administration’s views.

Even if an administration disagrees with a policy, federal law might require that they fight lawsuits involving that policy, said John Sandweg, former acting director of US Immigration and Customs Enforcement under the Obama administration.

“The legal positions the government takes in court obviously have to be driven in large part by the law,” Sandweg said, speaking generally. “I think it’s important not to confuse those positions that are maybe legally mandated with the policy.”

The attorney general, Merrick Garland. The justice department is seeking to dismiss the lawsuit. Photograph: Michael Reynolds/EPA

“I certainly don’t think in any way, shape, or form that by opposing these lawsuits about separation, the administration wants or intends to validate in any way or do anything that kind of suggests family separation was anything but abhorrent.

“This was a disgusting policy: it was inhumane, ineffective, a black eye on the United States,” he said. It wouldn’t be “fair” to say the Biden administration opposed these claims from a policy perspective just because of legal opposition to these lawsuits, he added.

Justice department attorneys might “feel like their hands are tied” because of the laws and simply have to fight them, he said. The White House did not respond to the Guardian’s request for comment. A spokesperson for the justice department said in an email: “We remain committed to achieving a just resolution for the victims of this abhorrent policy.”

Regardless of the circumstances surrounding government defense of the suit, Leticia and Yovany still languish from the effects of their separation. Yovany has frequent nightmares about separation.

“Whenever his mother comes to wake him up,” court papers state, “Yovany still wakes up suddenly in a panic, thinking she is an immigration officer coming to tell him that they had been separated.”

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