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AG Mark Herring Sues to Protect Safety of Immigrant Children in Civil Detention

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From Virginia Attorney General Mark Herring’s office:

ATTORNEY GENERAL HERRING SUES TO PROTECT SAFETY OF IMMIGRANT CHILDREN IN CIVIL DETENTION

~ Herring has filed a lawsuit opposing the Trump Administration’s new rule circumventing the Flores Settlement Agreement ~

RICHMOND (August 26, 2019) – Attorney General Mark R. Herring today filed suit against the Trump Administration’s new rule that attempts to circumvent the Flores Settlement Agreement, a landmark agreement that has guaranteed safe, humane treatment of children in immigration custody since 1997.

In the complaint before the U.S. District Court for the Central District of California, Attorney General Herring and a coalition of fellow attorneys general argue that the Trump Administration’s new rule eliminates several critical protections guaranteed by the Flores Settlement Agreement. In particular, the prolonged 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. Previously, Attorney General Herring and his colleagues were successful in helping to secure relief for children being held in these detention centers after filing an amicus brief urging the court to grant immediate relief to fix the conditions in these facilities and make sure the children who were detained there were provided basic personal hygiene products.

“The Trump Administration’s treatment of immigrant children has been inhumane and immoral,” said Attorney General Herring. “For more than two decades the Flores Settlement Agreement has guaranteed a basic level of health, security, and safety for immigrant children, but now the Trump Administration is seeking to simply circumvent the settlement and abandon the protections it includes. These children do not have the ability to stand up for themselves against the Trump Administration, so we must do it for them.”

In the complaint, Attorney General Herring and his colleagues 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 new rule will lead to prolonged detention for children with significant long-term negative health consequences. In addition, the coalition argues 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 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 Herring is joined by the attorneys general of California, Massachusetts, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

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