K.O. v. Jefferson B. Sessions

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 20-5255 September Term, 2021 FILED ON: JULY 29, 2022 K.O., BY AND THROUGH THEIR PARENTS AND NEXT FRIENDS, E.O. AND L.J., ET AL., APPELLANTS v. JEFFERSON B. SESSIONS, III, FORMER ATTORNEY GENERAL OF THE UNITED STATES, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-00309) Before: WILKINS and RAO, Circuit Judges, and SILBERMAN*, Senior Circuit Judge. JUDGMENT This appeal was considered on the record, briefs, and oral arguments of the parties. The Court has accorded the issues full consideration and determined that they do not warrant a published opinion. See FED R. APP. P. 36; D.C. CIR. R. 36(d). For the reasons set out below, it is ORDERED AND ADJUDGED that the judgment of the District Court be AFFIRMED. Beginning in 2016 the former Attorney General, Jefferson B. Sessions, introduced the zero- tolerance policy whereby non-United States citizens who entered the United States without prior authorization would be immediately prosecuted under 8 U.S.C § 1325(a). See Memorandum for Federal Prosecutors Along the Southwest Border, OFFICE OF THE ATT’Y GEN. (Apr. 6, 2018), https://www.justice.gov/opa/press-release/file/1049751/download; see also News Release, U.S. DOJ, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (April 6, 2018), 2018 WL 1666622. According to the complaint before us, this practice prompted the separation of hundreds of migrant children from their parents. After parents were placed in * A separate concurring statement by Senior Circuit Judge Silberman is issued with this judgment and will be published. 1 criminal detention, their children were determined to be “unaccompanied minor[s]” under 8 U.S.C. § 1232(b)(1), were handed over to the Department of Health and Human Services (“HHS”) pursuant to 8 U.S.C. § 1232(b)(3), and were thereby separated from their parents. Following criticism of the practice, then-President Trump signed an Executive Order requiring the preservation of the “family unit” by keeping migrant families together during criminal and immigration proceedings to the extent permitted by law, while also maintaining “rigorous[]” enforcement of immigration laws. See Exec. Order No. 13,841, 83 Fed. Reg. 29,435 (June 20, 2018). In the ensuing years, numerous lawsuits have been filed in response to this family-separation practice, including this case. At the District Court, the Appellants alleged several constitutional violations and sought damages from various Executive Branch officials in their individual capacities; unnamed federal agents employed by Immigration and Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”), the Office of Refugee Resettlement (“ORR”), and HHS; and unnamed persons employed by “entities with which ORR and HHS contracted to provide services.” J.A. 8. The Appellants also alleged that these Executive Branch officials engaged in a conspiracy to infringe on their constitutional rights in violation of 42 U.S.C. §§ 1985(3) and 1986. For the reasons discussed in Part II, we affirm the judgment of the District Court dismissing the Appellants’ claims. I. A. Factual Background Appellants are children who entered the United States with their families and were subsequently detained and separated …

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