OPINION & ORDER This case arises from the separation of D.J.C.V., a minor child, from his father, G.C. (together, “plaintiffs”), at the hands of United States authorities, following the illegal entry of these noncitizens into the United States. That separation had two phases. The first began on May 2, 2018 — when, a few days after plaintiffs had crossed the U.S./Mexico border, Department of Homeland Security agents took D.J.C.V. away from G.C. and detained G.C. in secure detention — and lasted until October 10, 2018. The second began on October 10, 2018 — when G.C. was released from such detention — and lasted until October 15, 2018, when D.J.C.V. and G.C. were reunited, as a result of a successful habeas corpus petition filed by G.C. Plaintiffs bring claims of intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§1346, 1402, 2401, 2671 et seq., and torture, persecution, and inhumane acts under the Alien Tort Statute (“ATS”), 28 U.S.C. §1350, against the United States (the “Government”). These claims are based on both periods of separation. Pending now is the Government’s motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). It argues that this suit is barred by sovereign immunity and that plaintiffs’ complaint fails to state a viable claim. For the reasons that follow, the Court finds that, as to the first period of separation, jurisdictional discovery is necessary, to determine what policy formed the basis of the Government’s decision to separate G.C. from D.J.C.V. on May 2, 2018. That determines whether the Court has subject-matter jurisdiction over plaintiffs’ FTCA claims — or whether these are barred by exceptions to the FTCA’s waiver of sovereign immunity. As to the second period of separation, the Court denies the Government’s motions to dismiss plaintiffs’ FTCA claims both for lack of subject matter jurisdiction, because the Government has not met its burden to show that any exception to the waiver of sovereign immunity applies, and for failure to state a claim. Finally, the Court grants the Government’s motion to dismiss plaintiffs’ ATS claims for lack of subject matter jurisdiction. I. Background1 A. The Statutory and Regulatory Framework 1. Removal of Noncitizens and Withholding of Removal Any noncitizen present in the United States without having been admitted or paroled in is inadmissible and subject to removal. 8 U.S.C. §1182(a)(6)(A)(i). When a noncitizen has illegally reentered the country after having been removed, the earlier order of removal is “reinstated from its original date.” Id. §1231(a)(5). The reinstated order “is not subject to being reopened or reviewed”; the noncitizen thus “is not eligible and may not apply for any relief’ under the immigration laws. Id. Noncitizens who enter the United States unlawfully may also be subject to criminal prosecution. See, e.g., id. §§1325, 1326. Noncitizens, however, may not be removed to a country where they would face persecution or torture. Id. §1231(b)(3); 8 C.F.R. §§208.16-18. Therefore, notwithstanding §1231(a)(5)’s otherwise categorical bar on relief, such persons may be eligible for “withholding of removal,” through “withholding-only” proceedings, if they can establish a “reasonable fear” of persecution or torture. 8 C.F.R. §§208.31(a)-(b), (e), 241.8(e). A noncitizen who expresses such fear to immigration-enforcement officials is referred to U.S. Citizenship and Immigration Services (“USCIS”) for an interview with an asylum officer, who determines whether the person, in fact, possesses a “reasonable fear” of persecution or torture. Id. If the officer finds that the noncitizen has established such fear, the officer must refer the case to an immigration judge (“U”) to determine whether the person is entitled to withholding of removal. See 8 C.F.R. §208.31(e). 2. Detention Pending Removal Relevant here, two statutes authorize detention of noncitizens. First, 8 U.S.C. §1226(a) authorizes detention “pending a decision on whether the alien is to be removed from the United States.” Under that section, the Government may detain a noncitizen, although it may instead release him subject to parole or a bond. If the noncitizen is detained under §1226(a), he may request a bond hearing before an IJ. 8 C.F.R. §1236.1(d)(1). Under 8 U.S.C. §1231(a)(1), by contrast, a noncitizen subject to a final order of removal must be detained for the 90-day period after the order of removal becomes final. Thereafter, a person subject to a removal order who has not yet been removed may be released or further detained, depending on whether the Government determines that he is a “risk to the community or unlikely to comply with the order of removal.” Id. §1231(a)(6). Under §1231(a)(6), bond hearings are authorized to review this determination if removal is not “reasonably foreseeable.” See Guerra v. Shanahan, 831 F.3d 59, 62 (2d Cir. 2016).2 Under both provisions, the Government “shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C. §1231(g)(1). 3. Detention and Release of Minor Children Two statutes govern the custody and release of an unaccompanied alien child (“UAC”). Under the Homeland Security Act, the Office of Refugee Resettlement (“ORR”) within the Department of Health and Human Services (“HHS”) is responsible for “the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status.” 6 U.S.C. §279(b)(1)(A). A UAC is defined as any child who (1) “has no lawful immigration status in the United States”; (2) “has not attained 18 years of age”; and (3) either has no parent or legal guardian in the United States or has “no parent or legal guardian in the United States” who is “available to provide care and physical custody.” Id. §279(g)(2). And under the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), “[e]xcept in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to [HHS] not later than 72 hours after determining that such child is an unaccompanied alien child.” 8 U.S.C. §1232(b)(3). Once the UAC is transferred to HHS, ORR must place the UAC “in the least restrictive setting that is in the best interest of the child”; it cannot place UACs in a secure facility unless it determines that the child “poses a danger to self or others or has been charged with having committed a criminal offense.” Id. §1232(c)(2)(A). ORR cannot release a UAC to a person’s custody unless HHS first “makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being,” including by verifying the proposed custodian’s identity and making an “independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” Id. §1232(c)(3)(A). In addition, the United States is subject to “a bidding agreement incorporated into a judicial decree” governing the detention, release, and treatment of minors in immigration custody. See Flores v. Sessions, 862 F.3d 863, 866, 875 (9th Cir. 2017). The Flores Settlement Agreement, entered into in 1997, applies to both accompanied and unaccompanied minors. See Flores v. Lynch, 828 F.3d 898, 905 (9th Cir. 2016). It requires that “[w]ithin five days of arrest,” the Government “must transfer the minor to a non-secure, licensed facility[.]” Id. at 902. It is undisputed that D.J.C.V. is subject to that settlement agreement. See Compl. 76 n.75; Dkt. 22 (“Gov’t Mem.”) at 11. 4. The Trump Administration’s Enforcement Directives and Responses On January 25, 2017, then-President Trump issued Executive Order No. 13767 (“EO 13767″). It announced that “the policy of the executive branch” was to “detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations.” See Exec. Order No. 13767, 82 Fed. Reg. 8793, 8793 (Jan. 30, 2017). EO 13767 instructed the Department of Homeland Security (“DHS”) to “ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country as permitted by law.” Id. at 8795. In July 2017, “[i]n an effort to limit the number of individuals seeking asylum,” the Trump Administration established a family-separation “pilot program” in Western Texas and New Mexico. Compl. 23. Plaintiffs allege that the program targeted parents who unlawfully crossed the southern border with their children, and involved removing the children from their parents’ custody, designating the child a UAC, and referring the parent to the Department of Justice (“DOJ”) for criminal prosecution. Id.
23-24. Between July and November 2017, “the Government separated at least 281 individuals in families” via this pilot program. Id. 25. In December 2017, after the pilot program ended, the Administration circulated a memorandum titled, “Policy Options to Respond to Border Surge of Illegal Immigration.” Id. 26. That memorandum included, as two “short term” options, (1) “Increased Prosecution of Family Unit Parents,” which contemplated that “parents would be prosecuted for illegal entry…and the minors present with them would be placed in HHS custody as [UACs]“; and (2) “Separate Family Units,” which contemplated placing parents in adult-detention centers and children in ORR custody. Id.
