AG Grewal Files Lawsuit Challenging Federal Rule That Eliminates Critical Protections for Detained Immigrant Children

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TRENTON – Attorney General Gurbir S. Grewal joined a multistate lawsuit today challenging a new federal rule that allows for indefinite detention of immigrant families despite the social and physical harm such detention poses to immigrant children.

In the complaint, New Jersey alleges that the U.S. Department of Homeland Security’s rule violates a settlement agreement the federal government agreed to in 1997 in a case called Flores v. Reno, which established standards for the detention and release of children in immigration custody and limited detention periods for immigrant children.

“Indefinite detention of immigrant children and families is a profoundly cruel and harmful practice,” said Governor Phil Murphy. “The Trump Administration’s repeated punishment of immigrant children must end now. New Jersey is committed to preventing this rule from going into practice and fighting to end this shameful chapter of American history.”

“Protections and safeguards were put in place decades ago in this country to ensure that children don’t have to endure the physical and emotional harm that results from extended time in detention centers – to take away those necessary protections is dehumanizing and cruel,” said Lt. Governor Sheila Oliver, who serves as Commissioner of the Department of Community Affairs. “New Jersey is taking a stand against this regressive action today and we will continue to fight for migrants and their children in our state.”

“The Administration is once again treating immigrant families – and immigrant children in particular – in ways that are illegal and immoral,” said Attorney General Grewal. “For over two decades, across Administrations, the federal government followed legal protections to ensure detained immigrant children are released as quickly possible. The Department of Homeland Security’s new rule strips away those protections, allowing for the prolonged detention of children in conditions that are harmful to their mental and physical health. This new rule violates the law, and we’re going to court to stop it.”

“Immigrant family separation and detention is extremely traumatic for the children, especially since so many of them are being detained in conditions that are unsafe, unclean, and lack adequate social, medical, psychological, and scholastic resources,” said Christine Norbut Beyer, Commissioner of the Department of Children and Families.  “NJDCF is prepared to mobilize staff and resources to support and assist released or abandoned immigrant children.  We have the ability to license documented and undocumented families as resource homes, which offers real solutions and increased opportunities for immigrant families to ensure their children’s safe placement in the event of separation.”

“Our state law calls for all students, regardless of immigration status, to be provided a free public education. This is what we stand for in New Jersey,” said Dr. Lamont O. Repollet, Commissioner of the Department of Education. “Students who are held in detention centers are likely to suffer more harm and need more services. We must stand against policies that harm children and undermine their growth.”

“I applaud Attorney General Grewal for taking this critical step to protect immigrants, especially children, from cruel and inhumane indefinite detentions,” said Carole Johnson, Commissioner of the Department of Human Services. “The Murphy Administration has made clear that we believe in a stronger and inclusive America, as evidenced by our plan to create an Office of New Americans and advance immigrant and refugee integration initiatives. Harming children is never acceptable, and New Jersey is making clear that it must not be allowed.”

The Flores settlement agreement stems from a class action lawsuit filed two decades ago before the U.S. District Court for the Central District of California in response to conditions of confinement for detained immigrant children. At that time, the lawsuit sought to establish standards for how the U.S. government should handle the detention of minors. The federal government eventually reached a settlement in 1997 resulting, among other things, in the following commitments:

  • Release of children “without unnecessary delay” to parents, legal guardians, other adult relatives, another individual designated by the parents/guardians, or a licensed program willing to accept legal custody;
  • Placement of 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.

The lawsuit contends that the new rule violates these critical protections and standards of care.  Most alarming, the new final rule dictates that detained immigrant children can only be released to the parent or guardian, even when those individuals are themselves being detained and even though their parents want the minors released to another sponsor.  The rule thus effectively requires indefinite detention for any minors stopped at the border with a parent or apprehended with a parent.

The Flores settlement agreement, by contrast, requires placement of detained children in the least restrictive setting and calls for their prompt release from federal custody whenever possible, including to a range of individuals beyond parents or guardians.

As experts have found, children that are held in detention centers in violation of the Flores standards are likely to suffer more harm and require more services. That is of particular concern in New Jersey, where the State provides educational, psychological, medical, legal and other social services to minors. New Jersey is among the top states – often the top five – where unaccompanied immigrant children are released into the custody of sponsors.

In today’s lawsuit, Attorney General Grewal joins 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, Virginia, Washington, and the District of Columbia.

New Jersey is already participating in related family separation litigation in the Southern District of California and signed a comment letter in opposition to the changes to the Flores settlement terms in November 2018.  New Jersey also recently joined an amicus brief on the Flores settlement in support of the Plaintiffs’ application for a Temporary Restraining Order to compel the government to hold the children in its custody in safe and sanitary conditions.