The Trump Administration’s zero-tolerance, family separation policy tore thousands of children from their parents. Federal law enforcement officers at the border have caged infants and returned traumatized teenagers to parents only after long periods of detention. The government frustrated family reunification efforts, perhaps indefinitely, by losing children in the social services system. The tort of intentional infliction of emotional distress (IIED) is a theory of liability that could vindicate these families’ claims for justice. Moreover, the Federal Tort Claims Act (FTCA) allows litigants to penetrate sovereign immunity and sue the government for compensatory damages.
This Comment argues that an IIED cause of action is the ideal litigation vehicle for restoring the personal and economic dignity for victims of the family separation policy. Contrary to some concerns, this Comment argues why an IIED cause of action is not barred by statutory exceptions to the waiver of sovereign immunity. It assesses the viability of asylum seekers’ IIED claims in federal court. And it explores how courts have historically undervalued the trauma of people of color who seek refuge within our borders.