Federal judge in Phoenix clears path for first compensation trial over family separations

A federal judge in Phoenix has cleared the way for the first trial in the U.S. court system to hold the U.S. government liable for monetary damages over its policy of forcibly separating children from their parents along the border.

The cases, known as A.P.F. v. United States and C.M. v. United States, are being litigated jointly and are two of nearly 40 lawsuits making their way through the legal system. More cases are expected. If they all reach trial, the U.S. government could be on the hook for millions of dollars in damages.

The lawsuits seek financial compensation for the separated families under the U.S. Federal Tort Claims Act. The cases are separate from a settlement agreement that the U.S. government reached earlier this month with attorneys representing a class action lawsuit out of San Diego. Those talks did not include monetary compensation for the separated families.

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Attorneys in the C.M. lawsuit represent five mothers separated from their children near Yuma in May 2018, while the A.P.F. case is on behalf of six fathers separated from their children near Yuma between November 2017 and May 2018.

On Tuesday, U.S. District Judge Susan Bolton in Phoenix denied a motion filed by U.S. Department of Justice attorneys claiming immunity and seeking the dismissal of the two lawsuits based on the discretionary authority that shields the U.S. government and its employees from lawsuits because of actions tied to official policymaking and the implementation of a "zero tolerance policy" in 2018 and a pilot program in 2017.

Bolton cleared the last remaining hurdles before moving the two cases to a bench trial, where the judge would decide if and how much money each family would receive. Unless the U.S. government settles, the two lawsuits would be the first of 39 family separation lawsuits filed so far to reach trial level.

In her 32-page order, Bolton denied granting the U.S. government and its employees immunity stating that the forced separations along the Arizona-Mexico border "unquestionably interfered with Plaintiffs’ right to family integrity."

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At the core of her decision, according to court records, was evidence showing that the leadership at the Department of Homeland Security planned to separate parents from their children regardless of whether the parents were prosecuted under a "zero tolerance policy" on illegal border crossings, and without a clear plan to establish contact or reunite them after.

"This raises genuine issues of fact whether" DHS leadership implemented the family separations "with deliberate indifference to the harm it would cause" the parents and children, Bolton concluded.

She also found that the U.S. Customs and Border Protection and Immigration and Customs Enforcement employees in Yuma who carried out the separations were not shielded from liability in the lawsuits because they "pre-emptively designated" separated children as unaccompanied minors solely because of the suspicion that parents would be prosecuted. But in fact, none of the parents in these two cases faced criminal charges.

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While the timeline for a potential bench trial is unclear, it raises once again the possibility of having the administration of President Joe Biden having to defend the family separations in court despite their repeated condemnation of the policy.

"It is unconscionable that the administration continues to defend these prior practices in court and force the families to relive their traumatic experiences yet again," Jim Knoepp, the senior supervising attorney for the Southern Poverty Law Center, said in a statement. The group is litigating the cases with the firms Covington & Burling LLP and Coppersmith Brockelman PLC.

In the same order, Bolton also agreed that the U.S. government owed a duty of care to separated families, but declined to say whether the U.S. had breached its duty. It also denied a motion for summary judgment filed by attorneys representing the families claiming that the U.S. government intentionally inflicted emotional distress on them. Those issues will have to be decided at the trial.

Of the 39 family separation lawsuits filed under the Federal Tort Claims Act to date, 14 of the separations took place along Arizona's border with Mexico. And 11 of the cases were filed in federal courts in Arizona. There are about 800 additional pending claims that have not moved to the lawsuit stage.

Last week, the Biden administration reached a separate settlement that, if approved by a federal judge in San Diego, would end a class-action lawsuit that had forced the U.S. government to begin reuniting parents separated from their children at the U.S.-Mexico border.

The agreement, announced on Oct. 16, would bar the U.S. government from implementing similar policies in the future. It would also grant approximately 4,400 separated families an easier path to asylum and permission to work in the United States, as well as medical, legal and housing benefits.

Have any news tips or story ideas about immigration in the Southwest? Reach the reporter at rafael.carranza@arizonarepublic.com, or follow him on X (formerly Twitter) at @RafaelCarranza.

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This article originally appeared on Arizona Republic: Phoenix judge clears path for first trial over family separations