Asylum-seeking mother and daughter reunited after months of separation in detention

Immigration

Shawn S. Ledingham, Proskauer Rose LLP; Rebecca Brown and Joel Frost-Tift, Public Counsel

After years of litigation, a Guatemalan mother and daughter have secured a substantial settlement from the U.S. government following their forced separation at the Arizona-Mexico border in 2018.

The pair, who entered the United States seeking asylum after experiencing abuse in their home village, were separated under the family separation policy then in effect. During the separation, the 16-year-old daughter lost consciousness and suffered a head injury after struggling with government agents as her mother was removed from the room.

Though neither faced criminal charges, they remained in separate detention facilities for months -- the mother in California and the daughter in Arizona. The mother received no information about her daughter for more than a month until an attorney from Public Counsel intervened. J.P. et al v. USA, 22-cv-683 (D. Ariz., filed April 25, 2022).

In 2022, Proskauer Rose and Public Counsel attorneys filed a lawsuit in the District of Arizona under the Federal Tort Claims Act (FTCA), which allows individuals to sue for injuries resulting from government employee misconduct. The legal team pursued several claims, with intentional infliction of emotional distress as the central argument.

The lawsuit contended that the government's family separation policy deliberately aimed to create emotional distress to deter asylum seekers. After defeating multiple dismissal attempts, the government agreed in 2024 to compensate both clients with six-figure settlements for their physical and emotional injuries.

The legal team included Proskauer Rose attorneys led by Shawn Ledingham, with significant contributions from Tim Burroughs and Michelle Moriarty. Public Counsel attorneys Becca Brown and Joel Frost-Tift collaborated on the case, with additional support from Dan Pasternak of Squire Patton Boggs' Phoenix office.

"By defending our clients' suit from dismissal, we demonstrated the viability of tort claims arising out of the family separation policy," Ledingham said. "Not only did this facilitate a very favorable settlement for our two clients, it incentivized the government to offer settlements in 2024 in many other cases brought by other parents and children who had been separated at the border."

Added Brown with Public Counsel: "We were very close to a class settlement, but then the government pulled out. It took years for these cases to advance through the federal court system before the government agreed to come back to the table."

Ledingham said some of the case's challenges included the government moving to dismiss on a legal technicality. The government cited an exception to the Federal Tort Claims Act that exempts high-level policy decisions from the statute. When a single government employee misbehaves, that is a tort, Ledingham said. When an entire administration misbehaves, the government considers that to be a discretionary policy decision and protected by the so-called "discretionary function exception."
"The discretionary function exception, however, has its constitutional limits," Ledingham said. "We opposed the motion to dismiss, citing Ninth Circuit precedent holding that the exception does not apply to unconstitutional policies. As we articulated during oral argument, 'the government has no discretion to violate the Constitution.'"