RICHMOND (June 26, 2018) – Attorney General Mark Herring today joined a multistate lawsuit challenging the Trump Administration’s policy of forced family separation on the U.S. southern border. A total of 17 other states and the District of Columbia joined the lawsuit, filed today in the U.S. District Court for the Western District of Washington.
“Deliberately separating children from their parents is wrong and goes against the hope and safety that America has represented for centuries,” said Attorney General Herring. “Right now there are traumatized, unaccompanied children who have been transported to Virginia, without any idea of when they will see their parents again. We cannot stand by while the Trump Administration continues to tear families apart, putting politics before moral and legal obligations and responsibilities.”
The states’ lawsuit alleges the 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 southern border, 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.
According to press accounts, more than a dozen immigrant children, who were separated from their families at the southern border, have been transported to and are being housed in federal detention centers in Virginia.
One element of Virginia’s complaint is the cost of education the Commonwealth will have to incur for these unaccompanied children if they are classified as homeless in Virginia without their parents. Under federal law, states and local educational agencies are obligated to provide all children with equal access to public education at the elementary and secondary level, including unaccompanied alien children who may be involved in immigration proceedings. Once these children are released to a sponsor, they have a right to enroll in Virginia schools regardless of their immigration status. In Virginia, some of these unaccompanied alien children under 18 will be classified as homeless under applicable state and federal law and Virginia school divisions are required to immediately enroll homeless students. The Virginia Department of Education provides the state share, and the enrolling local school division is responsible for paying the local share of the cost for educating students enrolled in public schools at a total per pupil statewide average expenditure in excess of $10,000.
Problems with executive order
Following a close review of the order, the states found two main problems with the executive order.
First, the order does nothing to reunify families already torn apart by the Trump Administration’s policy.
Second, the order is riddled with so many caveats as to be 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, a scenario Ferguson described at the press conference as unlikely
On April 6, 2018, Attorney General Jeff Sessions announced a new “zero tolerance” policy on the United States’ southern 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, 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. In March and April of 2018, 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 nearly nine times as many compared to March 2017, and more than nine times as many compared to April 2017.
The states joining the lawsuit include: Washington, Massachusetts, California, Delaware, Iowa, Illinois, Maryland, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia.