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Post date: June 26 2018

A.G. Underwood Files Lawsuit Challenging Trump Administration Family Separation Policy

News from the New York Attorney General's Office

June 26, 2018

Attorney General's Office Press Office / 212-416-8060


18 AGs File Multistate Suit Against Unconstitutional Policy

NEW YORK  Attorney General Barbara D. Underwood filed a lawsuit today challenging the Trump Administration’s policy of forced family separation on the U.S. southern border. The multistate lawsuit was filed by a coalition of 18 Attorneys General in the U.S. District Court for the Western District of Washington.

“Keeping children separated from their parents is inhumane, unconscionable, and illegal – and we’re filing suit to stop it,” said Attorney General Underwood. “By tearing children away from their parents and sending them hundreds of miles away, the Trump administration has already caused unfathomable trauma to these children, while undermining New York’s fundamental interests in protecting their health, safety, and wellbeing. This is not who we are as a country, and we won’t stand by as the Trump administration undermines the Constitution and our rights.”

The lawsuit filed by the Attorneys General argues that the Trump Administration has violated the constitutional due process rights of the parents and children by separating them as a matter of course and without any finding that the parent poses a threat to the children. The policy is also irrationally discriminatory, in violation of the constitutional guarantee of equal protection, because it targets only people crossing our southwestern border, the majority of whom are from Latin America, and not anyone crossing the northern border or entering the United States elsewhere. The states also argue that this policy once again violates the Administrative Procedure Act, because it is arbitrary and capricious, and that the Administration has been violating U.S. asylum laws by turning people away at ports of entry without allowing them to request asylum.

New York has confirmed that at least 321 children who have been separated from their parents at the southwestern border are currently residing in New York State, in the care of 11 different provider agencies. Staff at one voluntary agency have informed local government officials that the ages of most children newly placed at their agency, many of whom were separated from family at the border, are between the ages of four and twelve.  The youngest child so far was a nine-month-old baby, in addition to multiple not-yet-verbal toddlers.

The children whom the Trump administration have separated from their parents and sent to New York are suffering extreme trauma. For example, a South American boy who was separated from his father at the Mexican border was rushed to the hospital because he was about to jump out of the second-story window of the group home where he was sent in early June after being forcibly separated from his family; the distraught child verbalized that he wanted to jump because he missed his parents. Twelve other young immigrant children who were separated from their parents at the border have been treated for physical and mental illnesses at New York City hospitals. One child was suicidal and others were treated for depression and anxiety.

Despite President Donald Trump’s previous claims that an executive order could not reverse his family separation policy, on Wednesday he issued an order purporting to do just that. However, the order does nothing to reunify families already torn apart by the Trump Administration’s policy. Moreover, the order is riddled with so many caveats it is essentially meaningless. Specifically, the order requires appropriations, although the total amount is unknown, as is the timeline for when or if such an appropriation would happen. It also relies on a federal judge approving a plan to indefinitely detain children.

The suit specifically cites a number of harms to New York, including:

  • Harming New York’s strong interest in family unity. It is a long-established policy and practice of the State to prioritize keeping a child with his or her parent or parents, which is key to child development.
  • Harming New York’s quasi-sovereign interests in ensuring the health, safety and well-being of all children within its borders and ensuring that children residing in the state who have been separated from their parents are quickly placed with family members if they cannot be reunified with their parents. The Trump administration’s separation policy directly undermines these interests, causing severe trauma to these children.
  • Harming New York’s strong interest in promoting and operating under non-discriminatory policies.
  • Harming New York’s proprietary interests, as children are entitled to a variety of services funded by the state – including education, early intervention, healthcare, child welfare, and more – once placed with a sponsor in New York.
  • Undermining New York’s licensing and oversight responsibilities over the facilities where immigrant children who are separated from their parents are placed.

The lawsuit was filed by the Attorneys General of Washington, Massachusetts, California, Delaware, Iowa, Illinois, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia. 

Policy History

On April 6, 2018, Attorney General Jeff Sessions announced a new “zero tolerance” policy on the United States’ southwestern border. Instead of making case-specific evaluations of individual cases, respecting due process rights and family integrity, the Trump Administration began prosecuting all possible immigration crimes and detaining all accused adults, even those with a legitimate asylum claim. The intended and acknowledged effect of this policy has been the separation of parents and children at the border.

The Trump Administration has been clear that the purpose of the forced separation policy is not to protect children, but rather to deter potential immigrants from coming to the United States. As Senior White House adviser Kellyanne Conway said recently: “Nobody likes seeing babies ripped from their mothers’ arms … but we have to make sure that [the Department of Homeland Security’s] laws are understood through the soundbite culture that we live in.”

Notably, there is no such “zero tolerance” policy at the northern border, and recent reporting indicates that the Border Patrol only tracks “family unit apprehensions” for immigrants from El Salvador, Guatemala, Honduras, and Mexico. 

The effects of this policy have been stark. The number of families from Latin America apprehended at the southwestern border increased dramatically, from 5,475 in February to 8,873 in March (a 62 percent increase) and 9,653 in April (a 76 percent increase from February). That’s more than nine times as many compared to April 2017.