18 Attorneys General File Multistate Suit Against Unconstitutional Policy

Governor Andrew M. Cuomo and Attorney General Barbara D. Underwood Tuesday announced a lawsuit 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.

"The federal government's horrendous treatment of immigrant families arriving at our border is unconstitutional and in direct opposition to everything this state and this nation stand for," Governor Cuomo said. "In New York, we will challenge this policy every step of the way. It's time for this country to look in the mirror and remember who we are and what we are about. We must protect immigrant children and defend our principles, our rights, and our basic humanity."

"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."

Following Governor Cuomo's pledge on June 19 to file suit and challenge the zero tolerance policy, New York joined the multistate lawsuit which was filed today by the Attorneys General of Washington, Massachusetts, California, Maryland, Oregon, New Mexico, Pennsylvania, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, Virginia, Vermont, North Carolina, Delaware and the District of Columbia.

The multistate lawsuit 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 only targets people crossing the U.S. southern border, the majority of whom are from Latin America, and not anyone crossing the northern border or entering the United States elsewhere, which is discriminatory and violates the constitutional guarantee of equal protection.
  • The policy is arbitrary and unpredictable, and the Administration has been violating U.S. asylum laws by turning people away at ports of entry without allowing them to request asylum, the Immigration and Nationality Act and the Administrative Procedure Act.

The lawsuit is seeking the following relief:

  • Ordering that children be reunified with parents.
  • Declaring the family separation policy unconstitutional/unlawful and asking the court to enjoin family separation at borders and points of entry.
  • Seeking court order for the federal government to share critical information about child location and treatment with parents.
  • Enjoining government from refusing to accept asylum applications at ports of entry.

Despite President Donald Trump's previous claims that an executive order could not reverse his family separation policy, the President issued an executive order this week that does nothing to reunify families and 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 multistate suit specifically cites a number of damages 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.

After the Governor originally demanded information from HHS, the federal government revealed there are at least 1,292 unaccompanied minors currently being cared for in New York, but this information is not comprehensive and remains unverified. 

New York has confirmed that at least 321 children who have been separated from their parents at the southern 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, with the youngest being nine-months-old.

Yesterday, Governor Cuomo announced that personnel, resources, and medical support services have been dispatched to facilities caring for immigrant children in order to alleviate trauma and provide immediate support.

Policy history

On April 6, 2018, Attorney General Jeff Sessions announced a new "zero tolerance" policy on the United States' southern border. The intended and acknowledged effect of this policy has been the separation of parents and children at the border. 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 southern 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.

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