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Attorney General William Tong

09/03/2019

ATTORNEY GENERAL TONG JOINS MULTISTATE COALITION IN SEEKING PRELIMINARY INJUNCTION TO HALT TRUMP ADMINISTRATION’S RULE ALLOWING INDEFINITE DETENTION OF CHILDREN

Attorney General William Tong today joined a coalition of attorneys general, led by California and Massachusetts, in filing a motion for a preliminary injunction to block the Trump Administration’s new rule circumventing the Flores Settlement Agreement, which has governed the treatment of children in immigration custody since 1997.

The Trump Administration’s 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, their families, and the communities that accept them upon their release from federal custody. The rule’s elimination of the states’ role in licensing care for vulnerable children is another serious concern. In the motion filed before the U.S. District Court for the Central District of California, the coalition urges the court to block the rule while litigation continues.

“This new rule will jeopardize the safety and well-being of countless immigrant children and inflict lasting trauma on them and their families. No child should be detained indefinitely in deplorable living conditions that fail to meet basic human needs. This cruel, inhumane, and illegal action is an attack on who we are as a nation. I stand with attorneys general across the country in taking on the Trump Administration to protect the welfare and safety of all children,” said Attorney General Tong.

In the complaint filed Aug. 26, the attorneys general argue 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 also lead to indefinite detention for children, which could result in significant long-term negative health consequences. Based on these concerns, the attorneys general argue the rule exceeds the agencies’ statutory authority and 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 described conditions that included 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 prolonged 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 seeking the preliminary injunction 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.

A copy of the complaint is available here. A copy of the motion is available here.

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

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