SAN DIEGO (CN) — A lawsuit featuring claims that U.S. Border Patrol agents drove infants and their asylum-seeking mothers from a hospital to the U.S.-Mexico border and expelled them to Tijuana can move forward after a federal judge denied most of the government’s arguments for why the claims should be dismissed.
In their suit filed last year in San Diego federal court, four mothers — asylum seekers from Mexico, Honduras and Haiti who were traveling separately and at different times — described similarly harrowing experiences of desperately trying to escape violence in their home countries while pregnant in the first few months of the Covid-19 pandemic in 2020.
After being denied medical attention in Tijuana, the mothers entered the U.S. and sought out U.S. Border Patrol agents. Those who had children traveling with them saw their children taken from them before they were taken to a hospital in the border town of Chula Vista.
Soon after the birth of their children, who are U.S. citizens, the mothers say they were quickly taken out of the hospital — sometimes only a day after giving birth — without their children’s birth certificates, reunited with their children at the hospital’s entrance, driven to the U.S.-Mexico border, and then told to walk across a pedestrian bridge to Tijuana.
In one case, a Haitian woman was dragged by agents to the U.S. side of the border, according to the lawsuit.
The women claim Border Patrol agents should have known that expelling them and their children to Tijuana put them in danger, adding that the agents expelled the children despite their U.S. citizenship and without taking into account that three of the moms feared harm in Mexico.
On Tuesday, attorneys for the government argued in San Diego federal court that the mothers’ claims should be dismissed because the Federal Torts Claims Act — which allows people to sue the federal government for injuries done by an employee of the government — has a carved-out exception for damages caused by the establishment of a quarantine, which they argued was established at the beginning of the Covid-19 pandemic.
Bardis Vakili of the Law Offices of Bardis Vakili, the moms’ attorney, argued that the laws enacted to close the border to migrants in March 2020 — such as Title 42, a public health measure from the 1940s that allows the federal government to suspend trade or immigration into the U.S. from a country where a communicable disease is present for any length of time deemed necessary to protect the country — didn’t amount to the definition of a quarantine, which is to isolate a sick person from healthy people.
What the U.S. government did to the moms and their kids was expulsion, Vakili added.
“It seems to me what happened in this case before me was not a quarantine,” said U.S. District Judge Andrew Schopler, a Joe Biden appointee, on Tuesday in the middle of a more-than-an-hour-long reading of his tentative ruling denying most of the government’s arguments for why the case should be dismissed.
The statutes the government relies on to claim that the laws and public health initiatives put into place during the pandemic were “quarantines” don’t define themselves like the dictionary definition of the word, Schopler said. Instead, they use words like “expulsion” and “administrative notice.”
None of the moms, nor their U.S. citizen children, tested positive for Covid-19, Schopler said. He added that if the government wanted to argue that undocumented migrants needed to be quarantined, not suspended or expelled, it could — but it didn’t.
Since there isn’t a lot of prior case law regarding public health quarantines, in its motion to dismiss, the government cited case law involving quarantines for cattle and livestock — which isn’t similar to laws applicable to human beings, Schopler added.
“The plaintiffs are not farm animals,” Schopler said. “It’s quite different from deporting postpartum mothers and children from this country.”
Vakili said the government’s claims that Title 42 and other initiatives to close the border during the pandemic were akin to a quarantine were not true because “not every public health order was a quarantine.”
Quarantine, he reiterated, is when people infected with a disease are isolated away from people who haven’t been infected.
The government also argued that the plaintiffs’ claim for negligence and an injury was based on an injury suffered in Mexico, not the U.S.
The plaintiffs argued that their injury was suffered when they were expelled from the U.S., which Schopler said had been established with similar prior court cases.
The only claim Schopler did allow the government to dismiss was the plaintiffs’ negligence claim that the moms were expelled without first being interviewed for a credible fear screening by the U.S. Citizenship and Immigration Services.
The government argued their claims didn’t have a parallel law mandating that people in the private sector, like private prison employees, should be liable for similar injuries, or what’s referred to as a “private analogue.”
Schopler agreed with the government’s argument and dismissed that part of the plaintiffs’ claims with leave to amend if they could find prior cases proving there is a private analogue.
“The plaintiffs alleged they were in custody and then taken out of, and I believe that’s an important distinction,” said Erin Dimbleby, a lawyer for the defense, while arguing that the federal government also shouldn’t be liable for the moms’ other negligence claims arising from the Border Patrol agents’ failure to uphold their duty of care not to cause harm or injury to the moms or their children.
Prisoners have a right to a continuum of care, while the migrant moms in custody proceedings were not awarded the same rights. Schopler did not buy that argument.
“It’s hard when the court takes the words out of my mouth,” Vakili said after the judge read out his tentative ruling.
After the hearing, Vakili said he’d discuss bringing the negligence claim for not giving the moms a fear screening back in an amended complaint, but the tenor of the judge’s ruling is that there are serious claims in the case that should be heard.