On July 16, 2018, a group of minor children who recently came to the United States filed this lawsuit in the United States District Court for the Southern District of New York. The plaintiffs sued the Department of Health and Human Services, the Office of Refugee Resettlement (ORR), the Department of Homeland Security (DHS), and all relevant sub-agencies of DHS, including Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP). They brought the lawsuit under the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), the Immigration and Nationality Act, and the Administrative Procedure Act. They argued that the defendants’ policy of taking children away from their parents and then moving them across state lines without any notice to the children, their families, or counsel, violated their Due Process rights under the Fifth Amendment to the United States Constitution, their right to seek protection under the Asylum Statute, their rights as guaranteed by the Flores settlement, and the Administrative Procedures Act.

Specifically, the plaintiffs claimed that this policy harmed them by depriving them of the ability to seek counsel. The plaintiffs, represented by Legal Aid Society, sought an order enjoining the defendants from taking any action to remove children from New York state without providing 48 hours of advance notice to children, their families, and counsel in order to permit legal consultation so that they may make informed decisions concerning their rights and potential claims. “Notice” was to include the location to where the minor child would be moved, the location where the child’s parent(s) reside, and the purpose of the move.

The complaint also sought class certification for “all minor children within the New York State who enter the United States at or between designated ports of entry who have been or will be separated from a parent or parents absent a determination that the parent is unfit or presents a danger to the child who are detained in ORR custody, ORR foster care, or DHS custody.”

Given the urgency of the situation, this case moved very quickly. The day after the complaint was filed, Judge Laura Taylor Swain granted the plaintiffs limited injunctive relief. This relief restrained the defendants “from taking any action to remove minor children clients of the Legal Aid Society from New York State who are in ORR custody without providing 48 hours’ advanced notice.” The relief was to remain in effect until July 19, 2018, subject to extension.

On July 19, 2018, Judge Jesse M. Furman transferred the case to Southern District of California to be consolidated with Ms. L v. Immigration and Customs Enforcement, due to the similar nature of the cases. Updates concerning further litigation can be found there.

Nina Orteza - 10/16/2018


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