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Attorney General William Tong

08/26/2019

ATTORNEY GENERAL TONG JOINS LAWSUIT OPPOSING TRUMP ADMINISTRATION’S RULE ALLOWING INDEFINITE DETENTION OF CHILDREN

Attorney General William Tong joined a coalition of attorneys general today, led by California and Massachusetts, in filing a lawsuit opposing the Trump Administration’s effort to subject immigrant children and their families to indefinite detention through a new rule circumventing the Flores Settlement Agreement, which has governed the treatment of children in immigration custody since 1997.

In the complaint before the U.S. District Court for the Central District of California, the coalition argues that the rule eliminates several critical protections guaranteed by the Flores Settlement Agreement. In particular, the indefinite detention risked by the rule would cause irreparable harm to children and their families, and the communities that accept them upon their release from federal custody.

"This rule will separate more children from their mothers and fathers, brothers and sisters, and family members, and will inflict lasting and lifelong trauma. The Trump Administration still has yet to reunite children they have already forcibly separated, and is now doubling down on the same cruel policy. The detention facilities are already overcrowded and under-resourced, with limited access to clean water, food and medical supplies. This policy is a guaranteed humanitarian nightmare. I stand with attorneys general nationwide in protecting the Flores Settlement Agreement and the health, welfare and rights of children," said Attorney General Tong.

In the complaint, the coalition argues that the Trump Administration’s final rule interferes with the states’ ability to help ensure the health, safety, and welfare of children by undermining state licensing requirements for facilities where children are held. The rule would result in the vast expansion of family detention centers, which are not state licensed facilities and have historically caused increased trauma in children. The rule will lead to indefinite detention for children with significant long-term negative health consequences. In addition, the attorneys general argue the rule violates both the Administrative Procedure Act and the due process clause of the Fifth Amendment to the U.S. Constitution.

The Flores Settlement Agreement stems from a class action lawsuit filed before the U.S. District Court for the Central District of California in 1985 in response to substandard conditions of confinement for unaccompanied immigrant children. The lawsuit sought to establish standards for how the federal government should handle the detention of minors, including plaintiff Jenny Lisette Flores.

In particular, the plaintiffs expressed significant concerns about the use of strip searches, forcing children to share living quarters and bathrooms with adults of the opposite sex, and that minors could not be released to non-guardian relatives, leading to indefinite and cruel detention of children.

Following litigation that moved through the U.S. Ninth Circuit Court of Appeals and the U.S. Supreme Court, the federal government eventually reached a settlement with class counsel in 1997 resulting, among other things, in:

  • Release of children “without unnecessary delay” to their parents, legal guardians, other adult relatives, another individual designated by the parents/guardians, or a licensed program willing to accept legal custody;
  • Placing children in the “least restrictive setting” appropriate to the minor’s age and special needs; and
  • Establishment of standards for safe and sanitary conditions of confinement for children in immigration detention.

Attorney General Tong in filing the lawsuit joins the Attorneys General of California, Massachusetts, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

Special Counsel for Civil Rights Joshua Perry is assisting the Attorney General with this matter.

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