Trump family-separation policy battle heading to courts

Trump family-separation policy battle heading to courts

By Gary Gately   
Published
The SeaTac Federal Detention Center, the federal prison where mothers who crossed the border illegally were held and often separated from their children for lengthy periods. (Photo courtesy of SounderBruce)

WASHINGTON — The battle over the Trump administration’s policy of separating migrant parents from their children will soon play out in federal courts, with three new lawsuits planned and the ACLU moving ahead with a class-action suit.

Democratic attorneys general in 11 states and the District of Columbia say they plan to file a federal lawsuit challenging the Trump administration’s policy.

Meantime, New York Gov. Andrew Cuomo said Thursday the state would sue the Trump administration for the government’s treatment of children separated from parents detained after crossing the border illegally.

Cuomo, who said 700 children separated from their parents were being housed in New York, wrote in an op-ed Thursday for The New York Times: “The Trump administration’s inhumane treatment of immigrant children has left a dark stain on the history of our nation. It is a human tragedy and a threat to our values…. We cannot wash away this stain on American history.”

The state attorneys general, led by Washington state’s Bob Ferguson, assert that President Donald Trump’s executive order, which the president said would halt the border separations, does not resolve the issue.

“This is a rogue, cruel, and unconstitutional policy; we’re going to put a stop to it,” Ferguson said, standing alongside Democratic Washington Gov. Jay Inslee outside the SeaTac Federal Detention Center near Seattle.

The federal prison has housed at least 200 mothers, many separated from their children after crossing the border illegally, said Jorge Barón, the executive director of the Seattle-based nonprofit Northwest Immigrant Rights Project, who appeared with Ferguson and Insley.

The immigrant group, too, plans to file a federal suit on behalf of women detained, many of them  migrants seeking asylum who have been separated from their children.

“We’re ready to continue the legal fight, until those parents are reunited with their children, and to make sure they are released from detention and have the opportunity to go to court,” Barón said.

Because of Trump’s erratic shifts in stances on family separation, Inslee said: “We have no way to predict from one day to the next what this president’s policies or intentions are. These cruel policies and this executive order are un-American and create chaos, fear and uncertainty. Washington [state] continues to stand ready to ensure this president is held accountable.”

The AGs’ lawsuit will argue the Trump administration has violated the U.S. Constitution’s due process guarantee and equal protection clause.

Trump’s executive order, which the president signed Wednesday, sets no timetable for reuniting the parents and children. More than 2,300 children have been separated from their parents from early May to early June, according to government estimates (though immigration advocates say the number could be much higher).

And acting on the president’s executive order, Attorney General Jeff Sessions has asked a federal judge to lift a 20-day limit on detention of children who cross the border illegally with their parents. A federal consent decree in the 1997 Flores settlementrequires that children be released from detention within 20 days. The settlement also stipulates that the government must keep immigrant families together for 20 days, but does not say they are to be separated after 20 days.

Trump said he seeks to allow federal authorities to detain parents throughout the parents’ criminal proceedings, which often stretch months, raising questions about the fate of the parents and their children during extended detention.

Administration officials declined to comment on the pending and impending litigation.

Suit claims Trump policy violates Constitution

The states’ lawsuit will allege the administration has violated the constitutional due process rights of the parents and children by separating them routinely, and without any finding that the parent poses a threat to the children. The policy, the suit argues, is also discriminatory because it targets only people crossing the southern border, but not the northern border. And the policy violates the 1946 Administrative Procedure Act because it’s “arbitrary and capricious,” the suit says.

In a statement released after the public announcement about the litigation, Ferguson’s office said: “The states will ask the president to comply with the law and the Constitution — for starters, by correcting the egregious flaws in the executive order, starting by creating a process to reunify the thousands of families torn apart by a cruel and unconstitutional policy, and immediately halting the practice of refusing to accept asylum petitions at the border.”

Ferguson said the suit would document “horrific and inhumane conditions” at Border Patrol facilities where mothers had been detained, including some frigid facilities and others with little or no food and women  drinking water out of bathroom toilets or clogged sinks, and photos of young children being confined in wire cages.

Inslee, the Washington governor and state AG Ferguson said they have asked the Trump administration for information on its “zero-tolerance” policy of arresting and detaining all those caught crossing the U.S.-Mexico border illegally. The governor and attorney general said they have asked Trump administration officials in June 7 and June 18 letters to specify here children of mothers being detained at SeaTac are being held, who’s caring for the children, why women are being detained while asylum hearings proceed, when they will be released and when they will be reunited with their children.

But the governor and attorney general said Trump administration officials have not answered their questions.

Joining Washington as plaintiffs in the suit are California, the District of Columbia, Illinois, Iowa, Maryland,  Massachusetts, Minnesota, New Jersey, New Mexico, Oregon and Pennsylvania.

The suit will be filed by by early next week in the Seattle-based U.S. District Court for the Western District of Washington, Ferguson spokeswoman Brionna Aho told TMN.

Trump’s abrupt reversal on the family-separation policy came amid a firestorm of international outrage and public and political pressure to stop separating families.

But the president said the administration would continue its “zero tolerance” policy of arresting and detaining all those caught crossing the U.S.-Mexico border illegally.

ACLU proceeding with class-action suit

Meantime, the American Civil Liberties Union said Thursday it is continuing its class-action lawsuit asking a federal judge in San Diego to end the separation policy.

ACLU officials noted U.S. District Court Judge Dana M. Sabraw on June 6 had refused a Trump administration request to dismiss the group’s legal challenge to the policy.

Sabrow, a 2003 appointee of former President George W. Bush, wrote that the separation policy could violate the Constitution’s due process clause.

Referring to the ACLU’s claims, Sabraw wrote: “Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. The facts alleged are sufficient to show the government conduct at issue ‘shocks the conscience’ and violates Plaintiffs’ constitutional right to family integrity.”

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