The United States District Court for the District of New Jersey has denied efforts by the U.S. Government to dismiss claims by three migrant families who are seeking compensation under the Federal Tort Claims Act ("FTCA") for the harms inflicted on them when their young children were forcibly taken away from them under the Trump Administration’s family separation policy (the “Policy”). This Policy resulted in the separation of more than 5,600 children from their parents between July 1, 2017, and January 20, 2021.
Although the Biden Administration has since rescinded and condemned the Policy, dozens of cases are pending nationwide as part of an effort to hold the government accountable for the mental, emotional, and physical trauma caused by these forced separations.
District Court Judge Michael Shipp ruled in a swift decision that the three cases pending in the District of New Jersey can proceed. The court rejected the government’s argument that the Court lacked jurisdiction over the cases as “inapplicable or presently lacking in factual support,” and agreed with plaintiffs that they had satisfied the requirements of the FTCA, which allows the government to be sued for torts. Finding that the plaintiffs had “plausibly allege[d] that the purpose of the [Family Separation] Policy was to terrorize children and their parents so that other Central American families would not come to the United States,” the court further held that plaintiffs could proceed with their claims for intentional infliction of emotional distress, negligence, child abduction, abuse of process, assault and battery, and loss of consortium, among others.
Catherine Weiss, chair of the Lowenstein Center for the Public Interest, said, “we are pleased that the Court has joined the many other district courts around the country that have rejected the same arguments the government advanced in our cases. We are eager to deliver justice to our clients, and we are particularly grateful for the speed at which the Court rendered its decisive opinion.”
In light of the Court’s decision, the government must now prepare to defend these suits, the first of their kind in the District of New Jersey.
(The following statements from clients in these cases have been translated from Spanish.)
“Beatriz,” a mother who was separated from her young child, said, “For the first time, I have hope that justice will prevail.”
Beatriz came to the United States seeking asylum in the U.S. Her son’s biological father is a dangerous gang leader in El Salvador who repeatedly raped and physically assaulted her. She followed lawful procedures for asylum-seekers by turning herself in at a border checkpoint with her three-year-old son, but U.S. immigration agents callously and forcibly separated them and kept them apart for 42 days.
“Jacob,” a father who crossed the U.S.-Mexico border carrying his then four-year-old daughter “Leya” on his shoulders, said, “I am still haunted by memories of my little girl crying ‘Papi! Papi!’ as they tore her from my arms, and I am thankful that the court will allow our case to go forward.”
Jacob fled Honduras after a local gang killed several of his family members who were supporting a political party that had taken a stance against the gang. When Jacob started to work for the party, the gang came after him. Jacob and Leya were separated for 93 days.
“Rafael,” who was separated at the border from his then twelve-year-old son “Orlan,” said, “when the government took my son from me, I hugged him and told him to trust God and be strong. God is finally answering our prayers.”
Rafael and Orlan fled Guatemala after local leaders beheaded Rafael’s father and uncle in a dispute over ancestral lands and then made death threats against Rafael and Orlan. Both sought asylum, which the U.S. government granted. They were separated for 37 days.
Catherine Weiss, Natalie J. Kraner, and Jennifer Fiorica Delgado serve as co-lead counsel in these cases. Stephanie Ashley, Pati Candelario, Raymond Cooper, Wayne Fang, Michelle Goldman, Markiana J. Julceus, Amanda Sewanan, Logan Vickery, Jackie Rojas, and Valerie Taboada also contributed to the FTCA filings.
About the Lowenstein Center for the Public Interest
From its founding, Lowenstein Sandler has been committed to advancing the public interest and serving communities in need. The Lowenstein Center for the Public Interest embodies this commitment, directing the firm’s strong pro bono program and other forms of civic and philanthropic engagement. Through these efforts, the center addresses significant social problems and offers meaningful assistance to low-income and other marginalized people, along with the organizations that advocate for and support them. This work engages the full range of the firm’s talents and reflects the core values that imbue all of the firm’s efforts: to perform work of the highest quality in a manner that maximizes results for our clients and causes.
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