Settlement for US Citizen Minor Detained by Customs and Border Protection

Cleary Gottlieb secured a $32,500 settlement for the benefit of E.R., the daughter of pro bono client L.R.

E.R., a U.S. citizen, was detained by Customs and Border Protection (CBP) agents in March 2011 as she reentered the country from Guatemala. As alleged in the complaint, after the agents determined that then four year-old E.R.’s traveling companion (her grandfather) was not eligible to enter the United States, they detained her for more than twenty hours, deprived her of any contact with her parents, and ultimately sent her back to Guatemala rather than reuniting her with her parents, because the CBP agents believed her parents to be “illegals.”

During the Federal Tort Claims Act (FTCA) suit brought by L.R. on E.R.’s behalf, the government moved to dismiss the complaint, invoking the discretionary function exception to the FTCA that curtails a court’s subject matter jurisdiction where the government’s actions are the product of discretion grounded in considerations of public policy. The court rejected this argument, finding that, taking the allegations in the complaint as true, there were no “discernible social, economic, or political policy considerations in the regulatory or statutory regime that would explain the CBP Officers’ decisions” regarding E.R.

With the benefit of this ruling, and after engaging in discovery, Cleary was able to negotiate a settlement with the government, providing for a payment of $32,500 for E.R.’s benefit. In approving the settlement agreement, the court praised Cleary’s pro bono work on behalf of E.R.