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J.S.R. v. Sessions

United States District Court, D. Connecticut

July 13, 2018

J.S.R., by and through his next friends J.S.G. and Joshua Perry, and V.F.B., by and through her next friends A.B.A. and Joshua Perry, Plaintiffs,
v.
JEFFERSON B. SESSIONS, III, et al., Defendants.

          RULING AND ORDER ON MOTION FOR A PRELIMINARY INJUNCTION

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         On July 5, 2018, J.S.R. and V.F.B. (“Plaintiffs”), two children, who were separated from their parents after crossing this country's southern border, filed a motion for preliminary injunction against numerous federal government officials and entities[1] (collectively “Defendants” or the “Government”), seeking an Order that would “(1) enjoin[] Defendants from continuing to detain Plaintiffs J.S.R. or V.F.B., maintaining their separation from their parents, or delaying release to suitable sponsors; and (2) after parent and child confer, order[] Defendants to release J.S.R. and V.F.B. by July 13, 2018 to a suitable sponsor or to reunite with their respective parents, as directed by the Plaintiffs.” Mot. for TRO at 1, ECF No. 17; Mot. for TRO at 1, ECF No. 43. Defendants opposed the motion. ECF No. 46. The Court held a hearing on July 11, 2018. ECF No. 52.

         For the following reasons, the motion for a preliminary injunction is GRANTED IN PART AND DENIED IN PART.

         Recognizing, as all parties have, that the constitutional rights of J.S.R. and V.F.B. have been violated, and that irreparable harm has occurred as a result, the motion for a preliminary injunction is GRANTED and relief directed towards the effects of the constitutional violation suffered by these minor children, namely trauma or more precisely, Post-Traumatic Stress Disorder (“PTSD”), shall be provided.

         At the upcoming hearing on Wednesday, July 18, 2018 at 11:00 a.m., each party shall present a plan for addressing the children's PTSD not only up to and including family reunification, but also after it. Their respective parents, J.S.G. and A.B.A., are ordered to be at this hearing and the Court therefore will issue writs of habeas corpus ad testificandum to ensure their availability for testimony, to the extent warranted.

         To the extent that J.S.R. and V.F.B. seek immediate reunification with their respective parents, the motion for a preliminary injunction is DENIED. As further discussed below, such relief is being addressed by another court. Indeed, these parents are class members and therefore parties in that other case and any such relief should be obtained in and through that proceeding.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Facts [2]

         Dr. Andrés Martin, M.D., M.P.H., a child psychiatrist with “more than twenty years of experience interviewing, assessing, and treating vulnerable children, including survivors of trauma, ” testified before the Court on July 11th. See Decl. of Andrés Martin (“Martin Decl.”), Mot. for TRO, ECF No. 17-5 (listing numerous credentials and publications). Dr. Martin, a professor of child psychiatry at the Child Study Center at Yale University School of Medicine, is also the Medical Director of the children's Psychiatric Inpatient Service at Yale-New Haven Children's Hospital, a sixteen-bed in-patient unit for children under age fourteen with serious psychopathology. The Court found him to be qualified as an expert in child psychiatry.

         Dr. Martin and a team of child psychologists interviewed J.S.R. and V.F.B. in Spanish on July 1, 2018. Using two standardized instruments, they diagnosed both children with post-traumatic stress disorder (“PTSD”). The following facts are based on Dr. Martin's testimony and other information submitted by the parties. No. other witnesses were called at the hearing, although the Court considered the various affidavits and other documents submitted by the parties.

         1. J.S.R.

         Dr. Martin testified that J.S.R., a nine-year-old boy, fled with his father from Honduras after his grandparents were murdered and the body of a family friend was left in his backyard. While in Honduras, J.S.R. had witnessed gang violence, including witnessing his grandmother dead, with her body tossed in a river and her neck split open. He also saw the dead body of someone he knew from his neighborhood dropped in his backyard. That second murder was blamed on his father by gang members who had made repeated threats to his father. Dr. Martin reported that, as far as J.S.R. knew, his father was being framed for the murder.

         J.S.R. has a strong and loving bond and relationship with his father, whom J.S.R. identifies as the key protector and role model in his life. While the two were traveling, his father would find work so that he could bring home food for J.S.R., and J.S.R. reported to Dr. Martin that there would be times when his father did not eat so that J.S.R. could eat. Dr. Martin explained that the trip from Honduras to Texas was not itself a particularly traumatic event for J.S.R.; it was long, arduous, hot, and there was hunger, but it was not itself traumatic.

         J.S.R. and his father arrived in Hidalgo, Texas, and were confined in freezing conditions-J.S.R. described being held in an “ice box” or “freezer”-and were eventually transferred to an immigration detention center. J.S.R. described to Dr. Martin being puzzled and surprised by the last time that he saw his father. He explained being told that his father was going to sign some paperwork and that he would be right back, but he never returned.

         According to Dr. Martin's testimony, J.S.R. experienced being kept in a windowless cage with other young children for approximately four days while he was being transferred to the custody of the Office of Refugee Resettlement (“ORR”). He is now with Noank Community Support Services, Inc. (“Noank”), in Groton, Connecticut. His father is now located at a detention center in Texas. Before the filing of this lawsuit, J.S.R. had spoken with his father two times over the three weeks at Noank.

         Dr. Martin reported that J.S.R. does not sleep well, does not trust adults, and is depressed and tearful. He is terrified of the prospect of returning to Honduras, because of his fear of gang violence there and the harm that could befall his father or his family.

         Dr. Martin successfully employed two standardized instruments commonly used for a diagnosis of PTSD with J.S.R. The first, the trauma health questionnaire (“THQ”), is a list of a wide array of potentially traumatic events. J.S.R. scored 14 out of a total of 23 points on that scale. The second, the childhood post-traumatic stress symptom scale, quantifies the symptoms of PTSD and has a maximum score of 51, with a score of 15 or higher qualifying a child for a diagnosis of PTSD. According to Dr. Martin, J.S.R. scored 38, which Dr. Martin described as an extraordinarily high score. Dr. Martin testified that J.S.R. has a full-blown acute PTSD symptomatology, on top of a chronic, traumatic background, resulting in a more pronounced trauma.

         2. V.F.B.

         According to Dr. Martin, V.F.B., a fourteen-year-old girl, fled with her mother from El Salvador after her step-father was killed by a gang. They entered the United States mid-May 2018, and reportedly were held in freezing conditions near the border while they awaited removal proceedings.

         Dr. Martin observed that V.F.B. has a close-knit relationship with her mother. She has learned crafting skills from her mother, and they have survived together through the murder of V.F.B.'s step-father and an arduous trek from El Salvador to Texas. Dr. Martin explained that, like J.S.R.'s journey, V.F.B.'s trip itself was not especially traumatic; the separation from her mother, however, did result in considerable trauma.

         One day at the detention center, V.F.B. went to take a shower. When she returned, her mother was gone.

         On May 16, 2018, the Government transferred V.F.B. to ORR custody and detained her in Noank. Her mother is in a detention center in Texas. During the six weeks preceding this litigation, V.F.B. had spoken with her mother once. She has since had more contact.

         On July 1, 2018, Dr. Martin's team interviewed V.F.B. and found her affect to be blunt and flat. Uncomfortable talking about the material, she would hide her face behind her arm or shy away from the interviewer. During the interview, she cried often.

         The team attempted to apply the same two standardized instruments with V.F.B. On the childhood post-traumatic stress symptom scale, V.F.B. scored 21 out of 51. A score of 15 or above is considered consistent with PTSD. The team had more difficulty using the trauma health questionnaire because V.F.B. had difficulty answering many questions and often avoided them. Dr. Martin considered her so distressed that she did not understand certain simple concepts and therefore could not answer the questions coherently.

         Dr. Martin expressed grave concern for the children if they are not reunited with their families, and he testified that there likely will be both short-term and long-term physical and mental health consequences for the children. He explained that symptoms of trauma, including sleeplessness, depression, anxiety, tearfulness, and hopelessness, will not remit on their own, and that the children are at risk for mental health consequences, including higher rates of depression, anxiety, symptoms of PTSD, substance abuse disorders, and more. They are also at a higher risk of physical conditions, such as cardio-vascular disease, diabetes, and even cancer.

         Dr. Martin recommended that the most important remedy for both children would be to take away the traumatic stressor, J.S.R.'s separation from his father and V.F.B.'s separation from her mother. Dr. Martin also recommended that they be reunified in a non-stressful environment, where they could have freedom of movement, space, safety, and access to schools. He also recommended that the children have ongoing trauma-informed psychotherapy and care. He expressed that the timing of the reunification mattered: that the children had already been separated from their parents too long, and that every day adds to the gravity of their situation.

         B. Procedural History

         On July 2, 2018, J.S.R. and V.F.B. each filed Complaints and petitions for habeas corpus. Compl., ECF No. 1. Each plaintiff also filed a motion for a hearing. ECF No. 8. On July 3, 2018, the Court granted the ...


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