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AG Mark Herring Seeks Preliminary Injunction to Block Trump Administration’s New Rule Circumventing Flores Settlement Agreement


From AG Mark Herring’s office:


~ Herring is seeking a preliminary injunction to block the Trump Administration’s new rule circumventing the Flores Settlement Agreement ~

RICHMOND (September 3, 2019) – Attorney General Mark R. Herring has joined a coalition of attorneys general in filing a motion for a preliminary injunction to block the Trump Administration’s new rule circumventing theFlores Settlement Agreement, which has governed the treatment of children in immigration custody since 1997. Last week, the coalition filed suit against the Trump Administration’s new rule arguing that it eliminates several critical protections guaranteed by the Flores Settlement Agreement. 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. 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 way the Trump Administration has held these children in disgusting, inhumane conditions for indefinite periods of time is inexcusable,” said Attorney General Herring. “No child should ever have to endure what these children are going through, which is why I am asking for the court to temporarily halt this new rule while my colleagues and I fight it in court. TheFlores Settlement Agreement has guaranteed a basic level of health, security and safety immigrant children for over two decades and I will do everything I can to make sure those protections remain in place.”

In the complaint filed earlier last week, 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 rule will also lead to prolonged detention for children, which could result in significant long-term negative health consequences. Based on these concerns, the coalition argues that 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 Herring is joined by the attorneys general of California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

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