Recent news outlets are reporting that a child died in the custody of the Immigrations and Customs Enforcement (ICE). In these reports, there were allegations that the child died due to negligent care. The short answer to the question of whether you can sue ICE for negligence or wrongful death is yes.
Our firm handles Federal Tort Claims Act cases against the United States and its agencies. The FTCA is the only way to bring a lawsuit against an agency like ICE, but it is a very specific area of law. There are many pitfalls when pursing a claim against ICE.
How do I sue ICE for negligence or wrongful death?
When filing suit against the United States for injuries caused in an ICE detention center, individuals must follow the strict rules of the Federal Tort Claims Act.
- A Standard Form 95 must be filed with the correct federal agency.
- The Form 95 must state the nature of your claim and what’s called a “sum certain.”
- The Form 95 must be filed within 2 years of accrual of the negligence.
- Once the Form 95 has been filed with the appropriate federal agency, then you must work with the agency to resolve your claim.
There are a lot of pitfalls if you do not know what you are doing. If you cannot successfully resolve the claim administratively, you have the option of filing suit so long as you file within the appropriate limitations period. Once you have filed your form 95, you must wait at least 6 months (maybe more depending on the course of your administrative claim) before you can file a federal lawsuit. And these deadlines may change based upon agency action.
Has ICE committed negligence in the detention of children?
The answer to this question is dependent on the particular facts of the case. If you are unsure, you should have a qualified federal tort attorney review your case to determine whether negligence or a wrongful death has occurred.
Within the last year, news outlets reported nearly 2,000 children were separated from their parents in ICE detention centers.
Suing ICE for negligence during imprisonment is a well-established cause of action under the FTCA.  In Texas, employees of ICE that take part in the detention of these children have the legal duty to act reasonably. That is, they should not be careless or negligent with health or lives of the children they are detaining. If they fail to meet their legal obligation, then the United States may have liability through the Federal Tort Claims Act.
What are the damages in a lawsuit against ICE?
This question also depends on the facts of the case and the state where the negligence occurred. The damages and compensation issue is one that involves both federal and state law.
For example, in Texas, individuals are allowed to seek personal injury recoveries for medical expenses, physical pain and mental anguish, loss of earning capacity, disfigurement, and physical impairment. Texas allows the parents of injured children to seek medical expenses paid on their behalf, both in the past and up to the age of 18.
If a child dies in detention due to the negligence of ICE, in Texas, the parents are allowed to seek what are known as “pecuniary loss.” That means the loss of the care, maintenance, support, services, advice, and counsel the parents would have received from their relationship with their child. Parents can also seek loss of “companionship and society.” This means the loss of the positive benefits flowing from the love, comfort, companionship, and society that flow from the relationship with their child, had he or she lived. And, finally, parents can seek mental anguish damages.
What should you do if you believe you or a family member are the victim of negligence?
Our firm offers several guides on what you can do in situations where you believe you are the victim of negligence.  The general take away is that you should contact a federal tort claim attorney as soon as possible. The Federal Tort Claims Act has a strict statute of limitations and other procedures that must be followed. If you wait too long, you could lose your right to bring ICE to justice.
: Mayorov v. United States, 84 F.Supp.3d 678 (N.D. Ill. 2015); Lyttle v. United States, 867 F.Supp.2d 1256 (M.D. Ga. 2012).