State of Washington et al v. United States of America et al

Filing 1

COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Receipt # 0981-5372043) Attorney Laura K Clinton added to party Commonwealth of Massachusetts(pty:pla), Attorney Laura K Clinton added to party Commonwealth of Pennsylvania(pty:pla), Attorney Laura K Clinton added to party Commonwealth of Virginia(pty:pla), Attorney Laura K Clinton added to party State of California(pty:pla), Attorney Laura K Clinton added to party State of Delaware(pty:pla), Attorney Laura K Clinton added to party State of Illinois(pty:pla), Attorney Laura K Clinton added to party State of Iowa (pty:pla), Attorney Laura K Clinton added to party State of Maryland(pty:pla), Attorney Laura K Clinton added to party State of Minnesota (pty:pla), Attorney Laura K Clinton added to party State of New Jersey(pty:pla), Attorney Laura K Clinton added to party State of New Mexico(pty:pla), Attorney Laura K Clinton added to party State of New York(pty:pla), Attorney Laura K Clinton added to party State of North Carolina(pty:pla), Attorney Laura K Clinton added to party State of Oregon(pty:pla), Attorney Laura K Clinton added to party State of Rhode Island (pty:pla), Attorney Laura K Clinton added to party State of Vermont(pty:pla), Attorney Laura K Clinton added to party State of Washington(pty:pla), Attorney Laura K Clinton added to party The District of Columbia(pty:pla), filed by State of Minnesota, Commonwealth of Pennsylvania, State of Delaware, Commonwealth of Massachusetts, State of Washington, The District of Columbia, State of North Carolina, Commonwealth of Virginia, State of New Mexico, State of California, State of Iowa, State of Rhode Island, State of New York, State of Vermont, State of New Jersey, State of Maryland, State of Illinois, State of Oregon. (Attachments: #1 Exhibit Exhibits 1-40, #2 Exhibit Exhibits 41-80, #3 Exhibit Exhibits 81-100, #4 Exhibit Exhibits 101-110, #5 Exhibit Exhibits 111-131, #6 Civil Cover Sheet, #7 Summons, #8 Summons, #9 Summons, #10 Summons, #11 Summons, #12 Summons, #13 Summons, #14 Summons, #15 Summons, #16 Summons, #17 Summons, #18 Summons, #19 Summons)(Clinton, Laura)

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Noah G. Purcell, WSBA #43492
Solicitor General
Colleen M. Melody, WSBA #42275
Division Chief, Civil Rights Unit
Laura K. Clinton, WSBA #29846
Megan D. Lin, WSBA #53716
Assistant Attorneys General
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STATE OF WASHINGTON;
COMMONWEALTH OF
MASSACHUSETTS; STATE OF
CALIFORNIA; STATE OF MARYLAND;
STATE OF OREGON; STATE OF NEW
MEXICO; COMMONWEALTH OF
PENNSYLVANIA; STATE OF NEW
JERSEY; STATE OF IOWA; STATE OF
ILLINOIS; STATE OF MINNESOTA;
STATE OF RHODE ISLAND;
COMMONWEALTH OF VIRGINIA;
STATE OF NEW YORK; STATE OF
VERMONT; STATE OF NORTH
CAROLINA; STATE OF DELAWARE;
and THE DISTRICT OF COLUMBIA,

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NO.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

Plaintiffs,
v.
THE UNITED STATES OF AMERICA;
DONALD TRUMP, in his official capacity
as President of the United States of America;
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; U.S.
CUSTOMS AND BORDER
PROTECTION; U.S. CITIZENSHIP AND
IMMIGRATION SERVICES; U.S.
DEPARTMENT OF HEALTH AND

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

1

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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HUMAN SERVICES; OFFICE OF
REFUGEE RESETTLEMENT; KIRSTJEN
NIELSEN, in her official capacity as
Secretary of the U.S. Department of
Homeland Security; THOMAS HOMAN, in
his official capacity as Acting Director of
U.S. Immigration and Customs
Enforcement; KEVIN K. MCALEENAN, in
his official capacity as Commissioner of
U.S. Customs and Border Protection; ALEX
AZAR, in his official capacity as Secretary
of U.S. Department of Health and Human
Services; SCOTT LLOYD, in his official
capacity as Director of Office of Refugee
Resettlement; and JEFFERSON
BEAUREGARD SESSIONS III, in his
official capacity as the Attorney General of
the United States,
Defendants.

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I.

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1.

INTRODUCTION

The States of Washington, California, Maryland, Oregon, New Mexico, New

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Jersey, Iowa, Illinois, Minnesota, Rhode Island, New York, Vermont, North Carolina, and

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Delaware; the Commonwealths of Massachusetts, Pennsylvania, and Virginia; and the District

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of Columbia (collectively, the States) bring this action to protect the States and their residents

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against the Trump Administration’s practice of refusing entry to asylum applicants who present

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at Southwestern border ports of entry and its cruel and unlawful policy of forcibly separating
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families who enter the country along our Southwestern border.
2.

Widespread news reports, as well as interviews of detainees in Seattle and

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elsewhere, confirm that families fleeing violence and persecution in their home countries who

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try to present themselves at Southwestern ports of entry to seek asylum are being refused entry

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into the United States. Border officials are unlawfully turning away these families on the pretext
that the United States is “full” or no longer accepting asylum seekers. This unlawful practice

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

2

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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exacerbates the trauma already suffered by refugee families while simultaneously artificially
increasing illegal entry violations.

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3.

For those families that do enter the United States along the Southwestern border,

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immigration officials have implemented the Trump Administration’s policy of forcibly
separating parents from their children – regardless of the family’s circumstances or the needs of

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the children. As of June 20, 2018, the new policy had already resulted in the separation of over

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two thousand children from their parents at the Southwestern border, most recently at a rate of

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50-70 families separated every day. Defendants have taken children as young as infants from

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their parents, often with no warning or opportunity to say goodbye, and providing no information

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about where the children are being taken or when they will next see each other. The States’
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interviews of detainees in their respective jurisdictions confirm the gratuitous harm that this

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policy inflicts on parents and children and the immediate and deleterious impact it has on

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families and communities.

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4.

As of June 25, 2018, emerging reports suggest that immigration officials are now

using the children taken from their parents as leverage to coerce parents to withdraw their asylum
claims.

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5.

Defendants have repeatedly and publicly admitted that a policy of intentionally

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separating immigrant children from their parents would be “cruel, “horrible,” and “antithetical

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to child welfare.” But they have alternately claimed that they have no such policy, or that it is

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somehow mandated by federal law or prior court decisions.

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6.

In truth, however, Defendants have embraced a policy of separating parents from

their children for the express purpose of deterring immigration along the Southwestern border

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

3

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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(the “Policy”). No law or court decision requires such separation. Rather, Defendants have
chosen to adopt the Policy as part of their “zero tolerance” or “100 percent prosecution” approach
to individuals who enter the country unlawfully, irrespective of circumstances, and to then use

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such misdemeanor criminal charges to detain parents indefinitely in federal facilities that cannot
accommodate families.
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Hundreds of children are left to languish in makeshift detention facilities – where

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staff are sometimes told not to comfort them – until a placement is found for the child.

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Defendants have moved the children and parents to different locations all over the country. While

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the parents are held in federal facilities to await further immigration proceedings, their children

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are sent elsewhere to group shelters or family placements.
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8.

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Defendants have made clear that the purpose of separating families is not to

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protect children, but rather to create a public spectacle designed to deter potential immigrants

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from coming to the United States. As Counselor to the President Kellyanne Conway said

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recently: “Nobody likes seeing babies ripped from their mothers’ arms . . . but we have to make

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sure that DHS’ laws are understood through the soundbite culture that we live in.” KellyAnne

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Conway: ‘Nobody likes’ Policy Separating Migrant Kids at the Border (June 17, 2018) available

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at

https://www.nbcnews.com/politics/first-read/conway-nobody-likes-policy-separating-

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migrant-kids-border-n884016, attached hereto as Ex. 1. Defendants’ Policy is causing severe,

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intentional, and permanent trauma to the children and parents who are separated in furtherance

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of an illegitimate deterrence objective.

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9.

On June 20, 2018, President Trump signed an Executive Order purporting to

suspend the Policy, but any relief offered by the Order is illusory. The Order says nothing about

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

4

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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reuniting the families already ripped apart by the federal government, and Trump Administration
officials have made clear the Order will have no impact on the thousands of families who have
already been traumatized.

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10.

Moreover, based on its text and contemporaneous statements by Administration

officials, it is clear the Order does not require the end of family separation. In fact, the

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Administration currently lacks both the capacity and the legal authority to detain families

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together for indefinite periods of time, which is what the Order contemplates as the alternative

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to separating families.

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11.

On June 21, 2018, as required by the Order, Attorney General Sessions filed an

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Ex Parte Application for relief from the Flores Settlement (a 1997 agreement which sets national
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standards regarding the detention, release, and treatment of all children in DHS custody). That

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request seeks rescission of Flores’ protections so that families may be detained indefinitely

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during the pendency of any immigration proceedings involving their members, a plan that raises

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the specter of internment camps.

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12.

Moreover, the Flores application seeks a “determin[ation] that the Agreement’s

state licensure requirement does not apply to ICE family residential facilities.” The government’s

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attempt to modify the Flores settlement terms by removing States’ licensing authority and
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jurisdiction over such facilities is a direct attack on the States’ sovereign powers.
13.

Neither the Order nor the Administration’s Flores application offer any assurance

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that the Administration will not return to a family separation policy when its efforts to intern

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families together fail. In response to the public outcry against family separation, in recent days

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President Trump has proposed that Homeland Security simply deport immigrants without

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

5

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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hearing or legal process instead of, or perhaps in addition to, interning thousands of families in
military facilities.
14.

The Policy, and the Trump Administration’s subsequent attempt to shield their

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facilities from state licensing standards, is an affront to States’ sovereign interests in enforcing
their laws governing minimum standards of care for children, declaring the family unit to be a

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fundamental resource of American life that should be nurtured, and requiring the preservation of

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the parent-child relationship unless the child’s right to basic nurture, health, or safety is

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jeopardized. The Policy also adversely affects the States’ proprietary interests, forcing States to

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expend resources to remediate the harms inflicted by the Policy, some of which are likely to be

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permanent. State programs, including child welfare services, social and health services, courts,
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and public schools are all experiencing fiscal impacts due to family separation that will only

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increase. The Policy, and the Administration’s related conduct, has caused severe and immediate

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harm to the States and their residents, including parents who are detained, released, or otherwise

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reside in the States after being forcibly separated from their children; children who are placed in

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facilities, shelters, sponsor homes, foster care, or who otherwise reside in the States after being

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separated from their parents; extended families and sponsors in the States; and the States’

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immigrant communities.
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15.

The Court should declare the practice of refusing to accept asylum seekers who

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present at Southwestern points of entry and the related Policy of family separation illegal and

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order Defendants to stop implementing them immediately. The Court should order Defendants

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to reunite every family separated by these unlawful acts immediately, and to take such other

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actions as are warranted by the time of hearing. Defendants’ conduct has caused real harms to

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

6

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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the States and our residents, harms that will only increase unless Defendants are enjoined from
continuing.

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II.

JURISDICTION AND VENUE

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16.

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The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). The United

States’ sovereign immunity is waived by 5 U.S.C. § 702.
17.

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Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and

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1391(e)(1). Defendants are the United States of America and United States agencies or officers

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sued in their official capacities. The State of Washington is a resident of this judicial district, and

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a substantial part of the events or omissions giving rise to this Complaint occurred within the

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Western District of Washington. For example, as of June 18, 2018, parents who were recently
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refused entry and then victimized by the Policy were being detained at the Federal Detention

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Center – SeaTac, which is located in King County. At that time, a number of children who were

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separated from their parents pursuant to the Policy also were being detained in Seattle and other

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nearby locations.

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18.

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The States bring this action to redress harms to their sovereign, proprietary, and

parens patriae interests.

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III.

PARTIES

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A.

Plaintiffs
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The Plaintiff States of Washington, California, Maryland, Oregon, New Mexico,

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New Jersey, Iowa, Illinois, Minnesota, Rhode Island, New York, Vermont, North Carolina,

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Delaware, and the Commonwealths of Massachusetts, Pennsylvania, and Virginia, represented

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by and through their Attorneys General, are sovereign states of the United States of America.

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

7

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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The District of Columbia, represented by and through its Attorney General, is a municipal
corporation organized under the Constitution of the United States and the local government for
the territory constituting the permanent seat of the federal government.

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20.

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injuries to the States caused by the Policy, including immediate and irreparable injuries to their
sovereign, proprietary, and quasi-sovereign interests.

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The States are aggrieved and have standing to bring this action because of the

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Nothing in the June 20 Executive Order remedies these harms, and the June 21

application to modify Flores is a direct attack on the sovereign powers of the States.
B.

Defendant Federal Agencies and Officers

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22.

Defendant the United States of America includes government agencies and

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departments responsible for the implementation of the Immigration and Nationality Act (INA)

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and the admission, detention, and removal of non-citizens who are traveling or returning to the

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United States via air, land, and sea ports across the United States.

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23.

Defendant Donald Trump is the President of the United States, and he is sued in

his official capacity.
24.

Defendant Department of Homeland Security (DHS) is a federal cabinet agency

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responsible for implementing and enforcing the INA. DHS is a Department of the Executive
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Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 552(f).
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Defendant Immigration and Customs Enforcement (ICE) is the component

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agency of DHS that is responsible for carrying out removal orders; operating adult immigration

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detention facilities; and contracting for the detention of immigrants in removal proceedings,

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including with public and private operators of detention centers, jails, and prisons.

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

8

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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The U.S. Customs and Border Protection (CBP) is an Operational and Support

Component agency within DHS. CBP is responsible for detaining and/or removing non-citizens
arriving at air, land, and sea ports across the United States.

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27.

Defendant U.S. Citizenship and Immigration Services (USCIS) is a component

agency of DHS that, through its Asylum Officers, conducts interviews of certain individuals

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apprehended at the border to determine whether they have a credible fear of persecution and

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should be permitted to apply for asylum.

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28.

Defendant U.S. Department of Health and Human Services (HHS) is a

department of the executive branch of the U.S. government.

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29.

Defendant Office of Refugee Resettlement (ORR) is a component of HHS which

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provides care for and placement for unaccompanied noncitizen children.
30.

Defendant Kirstjen Nielsen is the Secretary of DHS. She is sued in her official

capacity.
31.

Defendant Thomas Homan is the acting Director of ICE and is sued in his official

capacity.
32.

Defendant Kevin K. McAleenan is the Commissioner of CBP and is sued in his

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official capacity.
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33.

Defendant Alex Azar is the Secretary of HHS and is sued in his official capacity.

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34.

Defendant Scott Lloyd is Director of ORR and is sued in his official capacity.

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35.

Defendant Jefferson Beauregard Sessions III is sued in his official capacity as the

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Attorney General of the United States.

In this capacity, he has responsibility for the

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

9

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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administration of the immigration laws pursuant to 8 U.S.C. § 1103 and oversees the Executive
Office of Immigration Review.

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IV.

ALLEGATIONS

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A.

Federal Immigration Policy Has Traditionally Emphasized Family Reunification,
Recognizing that Children Belong with their Families
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When DHS, typically through ICE or CBP, detains an undocumented child who

is traveling alone, i.e., unaccompanied by a parent, the relevant federal agencies follow an

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established process. Specifically, ICE or CBP may detain an unaccompanied alien child (UAC)
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for up to 72 hours, as other federal agencies locate an appropriate shelter facility for that child.

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8 U.S.C. § 1232(b)(3). ICE or CBP then must turn the child over to the ORR for shelter

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placement. Id.

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37.

Once in ORR custody, children are placed in ORR-funded and supervised

shelters, where staff must attempt to locate a parent and determine if family reunification is
possible. If ORR is unable to find a parent, ORR staff will try to locate another family member,

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relative, family friend, or caretaker in the United States to serve as a sponsor who can care for
the child during the pendency of any subsequent immigration proceeding.
38.

Unaccompanied children in ORR custody for whom no sponsor placement can

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be made are moved to secondary ORR-contracted and state-licensed group care facilities, which

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can be anywhere in the country. In such cases, if ORR assesses that the child has a pathway to

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legal immigration status, ORR will place the child in an ORR-contracted and state-licensed long

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term foster care program while the immigration process continues. If ORR determines that a
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pathway does not exist, the child may remain in a shelter or ORR-contracted and state-licensed
group care during removal proceedings.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

10

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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39.

Thus, unaccompanied children typically arrive in the individual states in three

ways: they may be placed initially in a state-licensed shelter located in the state while ORR
determines if a family member can be found in the country; they may arrive when ORR releases

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them to the care of an in-state sponsor while their immigration proceeding goes forward; or they
can be moved into a placement in an ORR-contracted and state-licensed long term foster care
program as they await their immigration proceeding.

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40.

While ORR’s initial shelter care placement and long term foster care programs

are largely federally funded, an unaccompanied child’s in-state placements impose burdens on
the receiving state, discussed below.

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After Almost a Year of Threats, Defendants Adopted an Official Policy of
Separating Families Who Cross the Southwestern Border, Creating a New Class of
“Unaccompanied” Children

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41.

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B.

For over a year, the Trump Administration has made clear in numerous public

statements that it was considering an official Policy to separate families at the Southwestern
border in an effort to deter immigrants from Latin America from coming to the United States.
42.

As early as March 2017, a senior DHS official stated that Defendants were

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considering a proposal to separate children from their parents at the Southwestern border. See
Mary Kay Mallonee, DHS Considering Proposal to Separate Children From Adults at Border

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(March 4, 2017) available at https://www.cnn.com/2017/03/03/politics/dhs-children-adults-

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border/, attached hereto as Ex. 2.

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43.

On March 7, 2017, John Kelly, the then-Secretary of DHS, confirmed that DHS

was considering a policy of separating children from their parents: “I am considering that. They

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will be well cared for as we deal with their parents.” See Daniella Diaz, Kelly: DHS Considering
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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

11

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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Separating Undocumented Children From Their Parents at the Border (March 7, 2017)
available at

https://www.cnn.com/2017/03/06/politics/john-kelly-separating-children-from-

parents-immigration-border/index.html, attached hereto as Ex. 3.

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44.

Then-Secretary Kelly publicly backed away from those statements after harsh

criticism from the press, human-rights advocates, and members of Congress. See Tal Kopan,

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Kelly Says DHS Won’t Separate Families at the Border (March 29, 2017) available at

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https://www.cnn.com/2017/03/29/politics/border-families-separation-kelly/index.html

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attached hereto as Ex. 4. An inside source, however, reported that the family separation proposal

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was still on the table for discussion at DHS as of August 2017. See Jonathan Blitzer, How the

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Trump Administration Got Comfortable Separating Immigrant Kids From Their Parents, The
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New Yorker (May 30, 2018) available at https://www.newyorker.com/news/news-desk/how-

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the-trump-administration-got-comfortable-separating-immigrant-kids-from-their-parents,

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attached hereto as Ex. 5.

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45.

In fact, DHS secretly piloted the Policy in the El Paso sector of the border in

western Texas from July to November 2017. See Dara Lind, Trump’s DHS is Using an
Extremely Dubious Statistic to Justify Splitting up Families at the Border, Vox (May 8, 2018)

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available

at

https://www.vox.com/policy-and-politics/2018/5/8/17327512/sessions-illegal-

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immigration-border-asylum-families, attached hereto as Ex. 6.
46.

It was later reported that between October 2017 and April 2018, 700 families

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were separated at the Southwestern border, including at least 100 children under the age of four.

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See Ex. 3.

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

12

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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47.

On February 12, 2018, 33 U.S. Senators also a letter to DHS Secretary Nielsen,

concerned that DHS was carrying out “a systematic and blanket policy to separate a child from
a parent” upon arrival to the United States—a policy the Senators condemned as “cruel” and

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“grotesquely inhumane.” The letter is attached hereto as Ex. 7. The letter notes that Secretary
Nielsen “failed to repudiate” such a policy during a recent Senate Judiciary Committee hearing,

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and points to “numerous [documented] cases in which parents have been separated from their

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children.” Id.

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48.

In the spring of 2018, an influx of families seeking to enter the United States may

have catalyzed the Administration to finally embrace the Policy. In March and April of 2018,

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the number of families from Latin America apprehended at the Southwestern border increased
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dramatically, going from 5,475 in February to 8,873 in March (a 62% increase) and 9,653 in

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April (a 76% increase from February). See Southwest Border Migration FY2018, U.S. Dept. of

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Homeland Security available at https://www.cbp.gov/newsroom/stats/sw-border-migration,

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attached hereto as Ex. 8 and Southwest Border Migration FY2017, U.S. Dept. of Homeland

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Security available

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at

https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017#,

attached hereto as Ex. 9 1.

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CBP tracks “apprehensions” and “inadmissibles” separately and adds these together to count
“total enforcement actions.” See CBP Enforcement Statistics FY2018, U.S. Customs and Border
Protection available at https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics, attached hereto
as Ex. 10. “Inadmissibles refers to individuals encountered at ports of entry who are seeking lawful
admission into the United States but are determined to be inadmissible, individuals presenting themselves
to seek humanitarian protection under our laws, and individuals who withdraw an application for
admission and return to their countries of origin within a short timeframe.” Id. “Apprehensions refers to
the physical control or temporary detainment of a person who is not lawfully in the U.S. which may or
may not result in an arrest.” Id.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

13

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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49.

The number of family units deemed to be inadmissible went from 3,941 in

February to 5,162 in March (a 31% increase) and 5,445 in April (a 38% increase from February).
See Ex. 8. These numbers include all persons who enter at ports of entry but are deemed to be

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inadmissible; asylum seekers; and individuals who apply for admission but subsequently return
to their countries of origin within a short time frame. See Ex. 9. The numbers reflected an

7

increase of 672% in March 2018 in comparison to March 2017, and 697% in April 2018 in

8

comparison to April 2017. Compare Exs. 8 and 9.

9
10

50.

According to at least one source, the President’s frustration with the rising

numbers of Latino immigrants at the Southwestern border in March and April of 2018 was the

11
impetus for publicly adopting the Policy. See Ex. 5. When asked what had changed since the
12
13

prior year – when the Administration backed away from adopting such a policy – the person

14

pointed to the President: “What you’re seeing now is a President’s frustration with the fact that

15

the numbers are back up.” Id.

16
17
18

51.

In early April 2018, President Trump reportedly expressed frustration with DHS

Secretary Nielsen for failing to stop or decrease immigration at the Southwestern border. Several
officials stated that one persistent issue was President Trump’s belief that Secretary Nielsen and

19
DHS were resisting his direction that parents be separated from their children when crossing
20
21

unlawfully at the US-Mexico border. See Shear and Pearlroth, Kirstjen Nielsen, Chief of

22

Homeland Security, Almost Resigned After Trump Tirade (May 10, 2018) available at

23

https://www.nytimes.com/2018/05/10/us/politics/trump-homeland-security-secretary-

24

resign.html, attached hereto as Ex. 11. The President and his aides had been pushing a family

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

14

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

separation policy for weeks as a way to deter families from crossing the Southwestern border
illegally. Id.

3

52.

On April 6, 2018, President Trump issued a memorandum directing Attorney

4
5
6
7

General Sessions and DHS Secretary Nielsen to detail all measures and identify any resources
or steps “needed to expeditiously end ‘catch and release’ practices” that allow undocumented
immigrants to be released into the community pending resolution of their immigration cases.

8
9
10

53.

That

same

day,

Attorney

General

Sessions

formally

announced

a

“zero-tolerance” policy “for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted
illegal entry and illegal entry into the United States by an alien.” See Attorney General

11
Announces Zero-Tolerance Policy for Criminal Illegal Entry, U.S. Department of Justice (April
12
13
14
15

6,

2018)

available

at

https://www.justice.gov/opa/pr/attorney-general-announces-zero-

tolerance-policy-criminal-illegal-entry, attached hereto as Ex. 12.
54.

In a memorandum also issued April 6, Attorney General Sessions “direct[ed] each

16

United States Attorney’s Office along the Southwest Border . . . to adopt immediately a

17

zero-tolerance policy for all offenses referred for prosecution under section 1325(a)” and made

18

clear that this directive “superseded any existing policy.” See Memorandum for Federal

19
Prosecutors Along the Southwest Border (April 6, 2018), attached hereto as Ex. 13.
20
21

55.

On May 7, 2018, DHS adopted an official Policy of “referring 100 percent of

22

illegal Southwest Border crossings to the Department of Justice for prosecution,” and Attorney

23

General Sessions publicized that children would be automatically separated from parents or other

24

adults with whom they were traveling. See Attorney General Sessions Delivers Remarks

25

Discussing the Immigration Enforcement Actions of the Trump Administration, Justice News

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

15

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

(May 7, 2018) available at https://www.justice.gov/opa/speech/attorney-general-sessionsdelivers-remarks-discussing-immigration-enforcement-actions, attached hereto as Ex. 14.
56.

With that, Attorney General Sessions and Secretary Nielsen carried out President

4
5
6

Trump’s directive: Under the new federal law enforcement priority, all undocumented adults
crossing the U.S.-Mexico border at unauthorized locations would be referred by DHS to the

7

Department of Justice. DOJ would then charge each adult with misdemeanor illegal entry or

8

reentry.

9

circumstances or asylum claims, and children would be automatically separated from their

10

Everyone so referred would be prosecuted and detained regardless of familial

parents and transferred to the custody of ORR for placement elsewhere.

11
57.

Accordingly, Defendants have thus created a new category of “unaccompanied”

12
13
14
15

children – those who came into the country with a parent but were, pursuant to the Policy,
forcibly separated by ICE or CBP immediately thereafter.
58.

Perhaps emboldened by the directive, DHS officers at ports of entry along the

16

Southwestern border have been refusing to let immigrants present themselves and request

17

asylum, turning people away because the United States is “full.” See Alfredo Corchado, Asylum

18

Seekers Reportedly Denied Entry at Border as Trump Tightens ‘Zero Tolerance’ Immigration

19
Policies

(June

6,

2018)

available

at

20
21

https://www.dallasnews.com/news/immigration/2018/06/06/reports-turning-back-asylum-

22

seekers-border-crossings-trump-tightens-grip-zero-tolerance-immigration-policies,

23

hereto as Ex. 15.

24

59.

25

attached

One report describes immigrants who were turned away on the bridge in El Paso

by CBP officers before they reached the border checkpoint, so they were unable to make their

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

16

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

asylum request at the port of entry. Id. Ruben Garcia, founder of a nonprofit that assists
immigrants in El Paso explains: “If you look indigenous and you look Central American, they
will stop you . . . They never ask why they are coming. They just say we can’t receive you.”

4
5
6

Id. When asked why they are refusing to allow immigrants to reach checkpoints to request
asylum, CBP officials state that centers are “full.” Id.
60.

7

Recent interviews with detained parents held in federal facilities in Seattle

8

confirm these reports. For example, one mother presented herself and her 15-year old son at the

9

Laredo, Texas port of entry and requested asylum for herself and safe passage for her American-

10

citizen son. Officials at the port of entry detained her, separated her from her son, and told her

11
that the United Sates “will not give [her] asylum” and that she “w[ould] not see [her] son again
12
13

until he turns 18” because he would be taken to a shelter or given to an American family for

14

adoption. Another mother claiming asylum was told, in front of her 14-year-old daughter, that

15

she would be “punished with jail time” for having come to the United States.

16
17
18

61.

The effect of this conduct is an increasing influx of entrants at locations other

than ports of entry, which Defendants construe as violations of 8 U.S.C. § 1325 and its
implementing regulations. The adults are then routed into the criminal system while the children

19
are turned over to ORR for placement – thereby separating the family and implementing the
20
21
22

Policy.
62.

Since announcing the Policy, Defendants have repeatedly acknowledged its

23

existence and cruelty. For example, President Trump, tweeting on May 26, 2018, referred to the

24

Policy as a “horrible law.” The May 26, 2018 tweet is attached hereto as Ex. 16.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

17

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

63.

On May 29, 2018, Devin O’Malley, a Justice Department spokesman, recapped

the Policy, telling reporters that suspected crossers “will not be given a free pass,” and will face
criminal prosecution and federal detention “irrespective of whether or not they have brought a

4
5
6
7
8
9
10

child with them.” See Ted Hesson, White House’s Miller blames Democrats for border crisis,
Politico (May 29, 2018) available at https://www.politico.com/story/2018/05/29/stephen-millerdemocrats-border-574537, attached hereto as Ex. 17.
64.

On June 16, 2018, it was reported that Senior Advisor to the President Stephen

Miller was a driving force in adoption and implementation of the Policy. See Chas Danner,
Separating Families at the Border Was Always Part of the Plan (June 17, 2018) available at

11
http://nymag.com/daily/intelligencer/2018/06/separating-families-at-border-was-always-part12
13

of-the-plan.html, attached hereto as Ex. 18. While others acknowledge the controversial nature

14

of the Policy, Mr. Miller unapologetically embraced it, calling it “a simple decision by the

15

administration . . . . The message is that no one is exempt from immigration law.” Id.

16
17
18

65.

On June 17, 2018, Counselor to the President Kellyanne Conway acknowledged

the existence of the Policy in an interview with NBC’s “Meet the Press,” stating, “As a mother,
as a Catholic, as somebody who has a conscience . . . I will tell you that nobody likes this policy.”

19
See Ex. 1. She continued, “Nobody likes seeing babies ripped from their mothers’ arms, from
20
21
22
23
24
25

their mothers’ wombs, frankly, but we have to make sure that DHS’ laws are understood through
the soundbite culture that we live in.” Id.
66.

On June 18, 2018, President Trump characterized the Policy as one of the United

States’ “horrible and tough” immigration laws. See Hains, Tim, President Trump: “The United
States Will Not be a Migrant Camp”, “Not On My Watch” (June 18, 2018) available at

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

18

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

https://www.realclearpolitics.com/video/2018/06/18/president_trump_the_united_states_will_n
ot_be_a_migrant_camp.html, attached hereto as Ex. 19.

3

67.

Also on June 18, 2018, in remarks before the National Sheriffs’ Association

4
5
6

(NSA), Attorney General Sessions promoted the deterrent effect of family separation: “We
cannot and will not encourage people to bring their children or other children to the country

7

unlawfully by giving them immunity in the process.” See Luis Sanchez, Sessions on separating

8

families: If we build a wall and pass legislation, we won’t have these ‘terrible choices’, The Hill

9

(June 18, 2018) available at http://thehill.com/homenews/administration/392785-sessions-on-

10

separating-families-if-we-build-a-wall-and-pass, attached hereto as Ex. 20.

11
68.

And in her remarks to the NSA, DHS Secretary Nielsen also confirmed the

12
13

existence of the Policy, stating: “Illegal actions have and must have consequences. No more

14

free passes, no more get out of jail free cards.” See Tal Kopan, ‘We will not apologize’: Trump

15

DHS

16

https://www.cnn.com/2018/06/18/politics/kirstjen-nielsen-immigration-policy/index.html,

17

attached hereto as Ex. 21.

18

chief

defends

immigration

policy

(June

18,

2018)

available

at

69.

The Policy has resulted in thousands of brutal familial separations.

70.

For example, during a briefing call on June 15, 2018, DHS officials admitted that

19
20
21

1,995 children were separated from 1,940 adults at the U.S.-Mexico border from April 19

22

through May 31, 2018. The adults were all referred for prosecution. See How Trump Family

23

Separation

24

https://www.pbs.org/newshour/nation/how-trumps-family-separation-policy-has-become-what-

25

Policy

Became

What

it

is

Today

(June

14,

2018)

available

at

it-is-today, attached hereto as Ex. 22.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

19

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

71.

According to DHS data released on June 18, 2018 by Senator Dianne Feinstein,

federal immigration officials separated 2,342 children from adults at the border between May 5
and June 9, 2018. See Louis Nelson, Defiant Trump refuses to back off migrant family

4
5
6

separations,

Politico

(June

18,

2018)

available

at

https://www.politico.com/story/2018/06/18/trump-immigration-child-separations-650875,

7

attached hereto as Ex. 23.

8

C.

9
10

The President’s Executive Order Does Not End Family Separation
72.

On June 20, 2018, President Trump issued an Executive Order entitled,

“Affording Congress an Opportunity to Address Family Separation” (the Order). The Order is

11
attached hereto as Ex. 24. While purporting to suspend the practice of separating families, the
12
13
14
15
16
17
18

Order offers illusory relief. Indeed, the language of the Order itself does not actually require an
end to family separation, and in fact, it implicitly recognizes that the Policy will continue.
73.

By its own terms, the Order states that it does not confer any enforceable right or

benefit on any person.
74.

The Order appears to direct the Secretary of Homeland Security to detain families

together “during the pendency of any criminal proceedings for improper entry or immigration

19
proceedings involving their members,” while continuing the practice of prosecuting and
20
21
22

detaining all unauthorized border crossers.
75.

At the same time, the Order acknowledges that Defendants do not have the

23

resources or facilities necessary to effectuate its terms. Indeed, every provision of the Order is

24

to be carried out only “where appropriate and consistent with law and available resources.”

25

These terms are undefined, leaving familial detention largely discretionary. Likewise, the Order

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

20

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

repeatedly affirms that family unity is “subject to the availability of appropriations,” but provides
no parameters on when appropriations will be sought or even how much funding is needed.
76.

Similarly, the Order directs the Secretary of Defense to provide existing available

4
5
6
7
8
9
10

facilities to house immigrant families, or to construct them, but again there is no indication that
appropriate federal facilities exist and are available, or that construction of new family
internment facilities is feasible.
77.

The Order also acknowledges that Defendants cannot lawfully carry out its terms

until they receive a court order “that would permit” the family detention scheme contemplated.
Because almost every provision in the Order is subject to the availability of non-existent

11
resources and legal authority for indefinite detention that is contrary to settled law, it fails to
12
13
14

provide any actual relief.
78.

The Order also is silent as to the thousands of families already separated by the

15

Policy. It does nothing to require their reunification or redress the harms inflicted on those

16

families. As a spokesperson for HHS’ Administration for Children and Families explained,

17

“There will not be a grandfathering of existing cases … I can tell you definitively that is going

18

to be policy.” See Michael D. Shear, Abby Goodnough and Maggie Haberman, Trump Retreats

19
on Separating Families, but Thousands May Remain Apart, (June 20, 2018) available at
20
21

https://www.nytimes.com/2018/06/20/us/politics/trump-immigration-children-executive-

22

order.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-

23

lede-package-region&region=top-news&WT.nav=top-news, attached as Ex. 25.

24
25

79.

Defendants have confirmed that the Order will not end family separation,

ostensibly because only Congress can reverse the Policy. Notably, the Order poses a striking

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

21

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

contrast with the Administration’s previous statements that Congressional legislation is the sole
means of ending family separation, including President Trump’s explicit statement that “You
can’t do it through executive order.”

See “Trump said only legislation could stop family

4
5
6

separation. He just issued an executive order,” the Washington Post (June 20, 2018) clip
available at https://www.washingtonpost.com/video/politics/trump-said-only-legislation-could-

7

stop-family-separation-hes-about-to-issue-an-executive-order/2018/06/20/c4f93aea-74a9-11e8-

8

bda1-18e53a448a14_video.html?utm_term=.d6843e5acc54, and Adam Edelman, Trump signs

9

order stopping his policy of separating families at border (June 20, 2018) available at

10

https://www.nbcnews.com/politics/immigration/trump-says-he-ll-sign-order-stopping-

11
separation-families-border-n885061, attached hereto as Ex. 26.
12
13

80.

Likewise, just days prior to issuance of the Order, Defendants stated numerous

14

times their position that only Congress could end a policy of separating families. For example,

15

on June 18, 2018, Secretary Nielsen announced: “Until these loopholes are closed by Congress,

16

it is not possible, as a matter of law, to detain and remove whole family units who arrive illegally

17

in the United States. Congress and the courts created this problem, and Congress alone can fix

18

it. Until then, we will enforce every law we have on the books to defend the sovereignty and

19
security of the United States.” See Matthew Nussbaum, Trump falsely claimed for days that he
20
21

couldn’t

end

family

separations

(June

20,

2018)

available

22

https://www.politico.com/story/2018/06/20/trump-false-claims-family-separations-656011,

23

at

attached hereto as Ex. 27.

24
25

81.

Also on June 18, 2018, White House Press Secretary Sarah Huckabee Sanders

stated: “There’s only one body here that gets to create legislation and it’s Congress. Our job is

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

22

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

to enforce it, and we would like to see Congress fix it. That’s why the President has repeatedly
called on them to work with him to do just that.” Id.

3

82.

And on June 20, 2018, contemporaneous with announcing the Order, Vice

4
5
6

President Pence claimed that changing the law was the only way to end family separation: “I
think the American people want the Democrats to stop the obstruction, to stop standing in the

7

way of the kind of reforms at our border that will end the crisis of illegal immigration. We can

8

solve this issue of separation.” See Vice President Mike Pence: Democrats Can Fix Family

9

Separation at Border (June 20, 2018) available at https://kdkaradio.radio.com/articles/vice-

10

president-mike-pence-democrats-can-fix-family-separation-border, attached hereto as Ex. 28.

11
83.

When President Trump signed the Order, Vice President Pence and Secretary

12
13

Nielsen again called on Congress to end separating families at the border; Vice President Pence

14

suggested that the Order is only applicable “in the immediate days forward” and “call[ed] on

15

Congress to change the laws” for a more permanent fix.

16

span.org/video/?447373-1/president-trump-signs-executive-order-halting-family-separation-

17

policy.

18

84.

See clip at https://www.c-

Later that day, at a briefing organized by the White House, Gene Hamilton, a

19
counselor to Attorney General Sessions, sidestepped a question about whether a family that
20
21

crosses the border now would be separated, stating that an “implementation phase” would occur,

22

but that he was not sure precisely what DHS or HHS would do in the immediate future. Mr.

23

Hamilton echoed President Trump’s, Nielsen’s, and Sessions’ statements that “Congress needs

24

to provide a permanent fix for this situation.” Mr. Hamilton stated that if Congress does not act,

25

it would be up to the Flores judge to decide whether the Administration could keep families

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

23

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

together. See Charlie Savage, Explaining Trump’s Executive Order on Family Separation, (June
20, 2018) available at https://www.nytimes.com/2018/06/20/us/politics/family-separationexecutive-order.html, attached hereto as Ex. 29.

4
5

D.

6

Pursuant to the Order, the Attorney General Has Launched an Attack on State
Sovereignty
85.

The Order directs the Attorney General to “promptly file a request with the U.S.

7
District Court for the Central District of California to modify the Settlement Agreement in Flores
8
9
10
11

v. Sessions,” making rescission of Flores’ protections a predicate to the maintenance of family
unity.
86.

The Flores Agreement, which has been in place since 1997, “sets out nationwide

12

policy for the detention, release, and treatment of minors in the custody of the INS,” including

13

both accompanied and unaccompanied minors. Stipulated Settlement Agreement, ¶ 9, attached

14

hereto as Ex. 30.

Among other things, Flores prevents the DHS from detaining children in

15
restricted facilities for long periods and it requires federal detention centers to meet state
16
17
18

licensing requirements for childcare facilities.
87.

As Vice President Pence previously conceded, the Flores agreement provides

19

only two options for the long term placement of families—(1) parental detention and family

20

separation, or (2) keeping families together, by releasing them into the community. See clip

21
22

available at https://www.c-span.org/video/?c4736625/pence-options-law).
88.

On June 21, 2018, Attorney General Sessions filed an ex parte application

23
24
25
26

seeking relief from the Flores Settlement Agreement to allow the federal government to detain
families indefinitely at non-licensed facilities. Flores, et al. v. Sessions, et al., Case No. CV 854544-DMG (C.D. Cal.), Dkt. 435-1 at 1, 13, attached hereto as Ex. 31.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

24

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

89.

In his application, Attorney General Sessions admits that mass internment of

families by the federal government is currently illegal: “this Court’s construction of the Flores
Settlement Agreement eliminates the practical availability of family detention across the nation

4
5
6
7
8
9
10

. .” Ex. 31 at 2. “Under current law and legal rulings, including this Court’s, it is not possible
for the U.S. government to detain families together during the pendency of their immigration
proceedings. It cannot be done.” Id. at 3.
90.

Nevertheless, Attorney General Sessions argues that indefinitely detaining

families is necessary for deterrence. Specifically, he asserts that, without family detention, there
is “a powerful incentive for aliens to enter this country with children.” Id. at 1. Attorney General

11
Session claims that, “[u]ndeniably the limitation on the option of detaining families together and
12
13

marked increase of families illegally crossing the border are linked.” Id. at 2. “‘[D]etaining

14

these individuals dispels such expectations, and deters others from unlawfully coming to the

15

United States.’” Id. at 13 (internal citations omitted).

16
17
18

91.

Attorney General Sessions also requests an exemption from state licensing

requirements, “because of ongoing and unresolved disputes over the ability of States to license
these types of facilities.” Ex. 31 at 17-18.

19
92.

The district court and the Ninth Circuit in Flores rejected almost identical

20
21

arguments advanced by the federal government in 2015. See Flores v. Lynch, 212 F. Supp. 3d

22

907, 913 (C.D. Cal. 2015), aff’d in part, rev’d in part and remanded, 828 F.3d 898 (9th Cir.

23

2016); Flores v. Lynch, 828 F.3d 898, 910 (9th Cir. 2016). At that time, the government

24

requested that the trial court modify the Flores agreement to allow DHS to hold female-headed

25

families with their children indefinitely in family detention centers in Texas and New Mexico.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

25

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Rather than grant that request, the district court confirmed that Flores requires that “Defendants
must house children who are not released in a non-secure facility that is licensed by an
appropriate state agency to care for dependent children.” Case No. CV 85-4544-DMG (C.D.

4
5
6

Cal.), Dkt. 177 at 12. The court stated: “The fact that the [Texas and New Mexico] family
residential centers cannot be licensed by an appropriate state agency simply means that, under

7

the Agreement, [children] … cannot be housed in these facilities except as permitted by the

8

Agreement.” Id. at 12-13.

9
10

93.

The district court also found that the alleged “influx” of immigrants crossing the

U.S.-Mexico border did not constitute changed circumstances warranting the requested

11
modification and rejected the government’s stated rationale that the “family detention policy
12
13

[would] deter[] others who would have come.” Case No. CV 85-4544-DMG (C.D. Cal.), Dkt.

14

177 at 23. The Ninth Circuit affirmed, stating: “The Settlement expressly anticipated an influx

15

. . . and, even if the parties did not anticipate an influx of this size, we cannot fathom how a

16

‘suitably tailored’ response to the change in circumstances would be to exempt an entire category

17

of migrants from the Settlement, as opposed to, say, relaxing certain requirements applicable to

18

all migrants.” Flores v. Lynch, 828 F.3d 898, 910 (9th Cir. 2016).

19
20
21
22

E.

Defendants’ Recent Statements Call Into Question the Administration’s
Commitment to the Rule of Law
94.

Neither the Order nor the Flores application offer any assurance that the

Administration will not once again return to a family separation policy when its efforts to inter

23
24
25
26

families together fail.
95.

To the contrary, on June 25, 2018, Attorney General Sessions told an audience in

Reno, NV that DOJ would continue carrying out President Trump’s “zero-tolerance” directive

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

26

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

because to do otherwise “would encourage more adults to bring more children illegally on a
dangerous journey.” The same day, CBP Commissioner Kevin McAleenan stated that his
agency would stop referring parents with children for prosecution but that this is a “temporary”

4
5
6

halt. See Shannon Pettypiece and Toluse Olorunnipa, Border Patrol Halts Prosecution of
Families

Crossing

Illegally

(June

25,

2018)

available

7

https://www.bloomberg.com/news/articles/2018-06-25/border-patrol-halts-prosecution-of-

8

at

families-crossing-illegally.

9
10

96.

Further, the Trump Administration’s statements from June 20, 2018-June 26,

2018 raise the specter of further unconstitutional and unlawful acts.

11
97.

For example, in response to the public outcry against family separation, the

12
13

Administration appears to be preparing to intern thousands of families in military facilities. As

14

Commissioner McAleenan explained, he is unable to refer parents for prosecution without

15

separating them from their children due to lack of resources, but that he and his agency are

16

working on a plan to resume criminal referrals. See Shannon Pettypiece and Toluse Olorunnipa,

17

Border Patrol Halts Prosecution of Families Crossing Illegally (June 25, 2018) available at

18

https://www.bloomberg.com/news/articles/2018-06-25/border-patrol-halts-prosecution-of-

19
families-crossing-illegally.
20
21

98.

On June 21, 2018, at DHS’s request, the Pentagon agreed to host up to 20,000

22

unaccompanied migrant children on military bases. See Dan Lamothe, Seung Min Kim and Nick

23

Miroff, Pentagon will make room for up to 20,000 migrant children on military bases, the

24

Washington

25

Post

(June

21,

2018)

available

at

https://www.washingtonpost.com/news/checkpoint/wp/2018/06/21/pentagon-asked-to-make-

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

27

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

room-for-20000-migrant-children-on-military-bases/?utm_term=.decab089f684,

attached

hereto as Ex. 32.

3

99.

Defense Secretary Jim Mattis confirmed on June 24, 2018, that the military is

4
5
6

preparing to construct camps for migrants on at least two military bases. See Phil Stewart,
Pentagon eyes temporary camps for immigrants at two bases, Reuters (June 24, 2018) available

7

at

8

camps-for-immigrants-at-two-bases-idUSKBN1JL015, attached hereto as Ex. 33. Moreover, a

9

planning document from the United States Navy details “temporary and austere” tent cities that

10

https://www.reuters.com/article/us-usa-immigration-military/pentagon-eyes-temporary-

would be able to house 25,000 migrants on abandoned airfields. See Philip Elliott, Exclusive:

11
Navy Document Shows Plan to Erect ‘Austere” Detention Camps, Time (June 22, 2018)
12
13
14
15

http://time.com/5319334/navy-detainment-centers-zerol-tolerance-immigration-familyseparation-policy/, attached hereto as Ex. 34.
100.

Emerging reports as of June 25, 2018, suggest that immigration officials are using

16

the children taken from their parents as leverage to coerce parents to withdraw their asylum

17

claims. The family reunification Fact Sheet released by the Department of Homeland Security

18

on June 23, 2018, provides for family reunification only for adults “who are subject to removal”

19
so that they may be “reunited with their children for the purposes of removal.” See Fact Sheet:
20
21

Zero Tolerance Prosecution and Family Reunification (June 23, 2018) available at

22

https://content.govdelivery.com/accounts/USDHS/bulletins/1f98ad8, attached hereto as Ex. 35.

23

In other words, parents who hope to be quickly reunited with their children must abandon their

24

own asylum claims and agree to withdraw their children’s claims to remain in the United States.

25

See Dara Lind, Trump will reunite separated families – but only if they agree to deportation,

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

28

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

Vox (June 25, 2018) available at https://www.vox.com/2018/6/25/17484042/children-parentsseparate-reunite-plan-trump, attached hereto as Ex. 36.

3

101.

Parents have felt compelled to act accordingly. On June 24, 2018, a DHS official

4
5
6

stated that parents separated from their children “were quickly given the option to sign
paperwork leading to their deportation. Many chose to do so.” The June 24, 2018 tweet is

7

available at https://twitter.com/jacobsoboroff/status/1010862394103328771, and attached

8

hereto as Ex. 37. This is consistent with other accounts of parents signing voluntary deportation

9

paperwork out of “desperation” because officials had suggested that it would lead to faster

10

reunification with their children. See, e.g., Jay Root and Shannon Najmabadi, Kids in exchange

11
for deportation: Detained migrants say they were told they could get kids back on way out of
12
13

U.S., Texas Tribune (June 24, 2018) available at https://www.texastribune.org/2018/06/24/kids-

14

exchange-deportation-migrants-claim-they-were-promised-they-could/?utm_campaign=trib-

15

social-buttons&utm_source=twitter&utm_medium=social, attached hereto as Ex. 38.

16
17
18

102.

Likewise, on June 24, 2018, a senior administrative official speaking on the

condition of anonymity confirmed that defendants do not plan to reunite families until after a
parent has lost his or her deportation case, effectively punishing parents who may otherwise

19
pursue an asylum claim or other relief request and creating tremendous pressure to abandon such
20
21

claims so that parents may be reunited with kids. See Maria Saccherri, Michael Miller and

22

Robert Moore, Sen. Warren visits detention center, says no children being returned to parents

23

there,

24

https://www.washingtonpost.com/local/immigration/desperate-to-get-children-back-migrants-

The

Washington

Post

(June

24,

2018)

available

at

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

29

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

are-willing-to-give-up-asylum-claims-lawyers-say/2018/06/24/c7fab87c-77e2-11e8-80be6d32e182a3bc_story.html, attached hereto as Ex. 39.

3

103.

In recent days, President Trump has proposed deporting immigrants without

4
5
6

hearing or legal process as his favored alternative. On June 21, 2018 President Trump stated:
“We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand,

7

we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people

8

come into our country based on the legal phrase they are told to say as their password.” See

9

https://mobile.twitter.com/realDonaldTrump/status/1009770941604298753.

10

104.

On June 24, 2018, President Trump again proposed that immigrants who cross

11
into the United States should be sent back immediately without due process or an appearance
12
13

before a judge: “We cannot allow all of these people to invade our Country. When somebody

14

comes in, we must immediately, with no Judges or Court Cases, bring them back from where

15

they came. Our system is a mockery to good immigration policy and Law and Order. Most

16

children come without parents...” See Katie Rogers and Sheryl Gay Stolberg, Trump Calls for

17

Depriving Immigrants Who Illegally Cross Border of Due Process Rights, The New York Times

18

(June

24,

2018)

available

at

https://www.nytimes.com/2018/06/24/us/politics/trump-

19
immigration-judges-due-process.html, attached hereto as Ex. 40.
20
21

105.

On June 25, 2018, President Trump continued: “Hiring manythousands [sic] of

22

judges, and going through a long and complicated legal process, is not the way to go – will

23

always be disfunctional [sic]. People must simply be stopped at the Border and told they cannot

24

come into the U.S. illegally. Children brought back to their country…..” The June 25, 2018

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

30

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

tweet is available at https://twitter.com/realDonaldTrump/status/1011228265003077632, and
attached hereto as Ex. 41.

3

106.

On June 25, 2018, White House press secretary Sarah Huckabee Sanders

4
5
6

confirmed that CPB’s halt of prosecution referrals “is a temporary solution. This isn’t going to
last. . . This will only last a short amount of time, because we’re going to run out of space, we’re

7

going to run out of resources to keep people together.” Secretary Sanders reiterated: “We’re

8

not changing the policy . . . We’re simply out of resources. And at some point, Congress has to

9

do what they were elected to do, and that is secure our border, that is stop the crime coming into

10

our country.” Secretary Sanders dodged questions regarding President Trump’s recent

11
suggestion that immigrants be afforded no due hearing or due process prior to deportation. See
12
13

Press Briefing by Press Secretary Sarah Sanders (June 25, 2018), available at

14

https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-

15

062518/.

16

F.

17
18
19

Defendants’ Policy Causes Devastating Harm To Children and Parents
107.

Separating families when a child’s safety is not at risk causes immediate, acute

trauma as well as foreseeable long term damage and harm to both the parents and the children.
The negative effects and consequences of the Policy are likely to be long-lasting and in some

20
21
22

cases debilitating.
108.

Unless required to protect a child’s safety, forced separation from their parents is

23

likely to cause immediate and extreme psychological harm to young children, and the resulting

24

cognitive and emotional damage can be permanent. Parental separation is a traumatic loss for

25

the child; as a result they are likely to experience post-traumatic symptoms such as nightmares,

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

31

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

and other manifestations of anxiety and depression, all of which are likely to increase in severity
the longer the separation lasts and lead to the potential development of problematic coping
strategies in both the near and long term. This trauma may be exacerbated for children who are

4
5

fleeing persecution or violence in their home countries.
109.

6

Observations by those who have seen children recently separated pursuant to

7

Defendants’ Policy suggest that conditions created by Defendants will further exacerbate the

8

separation trauma. By way of example, after touring a shelter along the Texas border to Mexico,

9

Dr. Colleen Kraft, President of the American Academy of Pediatrics, described a “screaming”

10

girl, “no older than 2” who could not be comforted because shelter workers had been told they

11
are not allowed to touch the children, not even to hold a crying child and convey some semblance
12
13

of compassion. See Immigrant children: What a doctor saw in a Texas shelter, The Washington

14

Post

15

nation/wp/2018/06/16/america-is-better-than-this-what-a-doctor-saw-in-a-texas-shelter-for-

16

migrant-children/?utm_term=.e1e5566675e9, attached hereto as Ex. 42.

17
18

(June

110.

17,

2018)

available

at

https://www.washingtonpost.com/news/post-

These reports are also consistent with the observations of State employees who

recently interviewed separated children living in Seattle. Every child displayed significant

19
distress when relaying their experience and broke down when describing their separation. Some
20
21
22
23
24
25

reported ongoing nightmares, others were so traumatized they could not continue the brief
interviews.
111.

Similarly, parents who arrive together with their children at the U.S. border and

then are separated from their children by the U.S. government are likely to experience immediate
and acute psychological injury as a result. Under the Policy, many parents are being separated

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

32

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

from their children suddenly without the chance to prepare the child or even say goodbye,
without knowing where they or their children will be taken, without any guarantee of
reunification, and often without contact with their children or with long gaps in that contact.

4
5
6

When parents and children are allowed to speak, it is only briefly – ten minutes or so – by
telephone.
112.

7

These otherwise fit parents are likely to experience deterioration of their mental

8

and physical health in the aftermath of the forcible separation from their children with symptoms

9

including anxiety, depression, PTSD, and other trauma-related disorders. In some cases, parental

10

trauma from separation from their children will become unbearable because their available

11
coping mechanisms may be overwhelmed by the sudden loss of the important role of parent and
12
13

protector of the child. Indeed, at least one parent, distraught after officials pried his 3-year-old

14

son from his arms, is reported to have committed suicide following the separation. See Nick

15

Miroff, A family separated at the border, and this distraught father took his own life, (June 9,

16

2018) available at https://www.washingtonpost.com/world/national-security/a-family-was-

17

separated-at-the-border-and-this-distraught-father-took-his-own-life/2018/06/08/24e40b70-

18

6b5d-11e8-9e38-24e693b38637_story.html?utm_term=.96a4606e47c7, attached hereto as Ex.

19
43.
20
113.

21

These general observations were confirmed by interviewers who recently spoke

22

with mothers detained in a federal facility in King County, Washington. The mothers were

23

visibly upset, with some expressing panic and desperation, because they lacked information

24

about their children’s safety and did not know whether or when they would see their children

25

again.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

33

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

G.

The Policy Is Expressly Intended to Use Traumatized Children and Families to
Deter Migration of Latina/o Immigrants and for Political Leverage
114.

Defendants have changed public positions on the Policy numerous times over the

4

last few weeks, but what has remained consistent throughout is Defendants’ unambiguous

5

adoption of a policy at the Southwestern border that uses trauma as deterrence, and their

6

insistence that Congress overhaul immigration laws to codify President Trump’s immigration

7

agenda, including building a wall at the U.S.-Mexico border. See JM Rieger, The Trump

8
Administration Changed its Story on Family Separation no Fewer than 14 Times Before Ending
9
10

the Policy (June 20, 2018) available at https://www.washingtonpost.com/news/the-

11

fix/wp/2018/06/20/the-trump-administration-changed-its-story-on-family-separation-no-fewer-

12

than-14-times-before-ending-the-policy/?utm_term=.6719a188344f,

13

contradictory statements). Confirmation of these two goals is reflected in statements from a year

14
15

Ex.

44

(collecting

ago and continued even after issuance of the Executive Order.
115.

As early as March 7, 2017, then-Secretary of DHS John Kelly confirmed that the

16
17
18

Policy was intended to “to deter movement” along the Southwestern border. See Ex. 3. Later
that year, a source who attended a DHS meeting to discuss ways to “deter immigrants from

19

coming to the U.S. illegally” reported that the Policy was still being considered, but kept getting

20

“bogged down” because of how “difficult and controversial it was.” See Ex. 4.

21
22

116.

On December 5, 2017, Kirstjen Nielsen replaced John Kelly as DHS Secretary.

117.

On February 8, 2018, 75 members of Congress wrote a letter to DHS Secretary

23
Nielsen expressing “deep[] concern that the Department of Homeland Security (DHS) is
24
25
26

separating families, including parents and their minor children . . . along the U.S.-Mexico
border.” DHS’ “reported justification of this practice as a deterrent to family migration suggests

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

34

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

a lack of understanding about the violence many families are fleeing in their home countries”
and “[m]ore pointedly, the pretext of deterrence is not a legally sufficient basis for separating
families.” The letter is attached hereto as Ex. 45.

4
5
6

118.

The letter details two complaints filed in December 2017 that confirmed DHS

was “intentionally separating families for purposes of deterrence and punishment.” In particular,

7

the second complaint documented “instances of infants and toddlers as young as one and two

8

years old separated from their parents and rendered ‘unaccompanied’”—among these was “a

9

father separated from his one-year-old son, Mateo, despite presenting appropriate documents to

10

establish their relationship.” Id.

11
119.

Attorney General Sessions has confirmed that the Policy is intended to deter other

12
13

families from entering the United States. For example, on April 6, 2018, he issued a warning to

14

immigrants crossing the Southwestern border that “illegally entering this country will not be

15

rewarded, but instead will be met with the full prosecutorial powers of the Department of Justice”

16

and children “will be separated from [their parents].” See Ex. 12.

17
18

120.

In May 2018, DHS announced the results of its pilot at the El Paso border sector

from July to November 2017. Its report—later found to be inaccurate—further confirms that

19
deterrence is the primary purpose of the Policy. When asked about the Policy, DHS reported that
20
21

“[t]he number of illegal crossings between ports of entry of family units dropped by 64 percent.

22

This decrease was attributed to the prosecution of adults amenable to prosecution for illegal entry

23

while risking the lives of their children. Of note, the numbers began rising again after the

24

initiative was paused.” See Ex. 6. Notably, public reporting suggests that, based on DHS’ own

25

statistics, these numbers are wrong and that there was, in fact, a 64% increase in apprehensions.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

35

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Id.; see also US Border Patrol Southwest Border Apprehensions by Section FY2017, U.S.
Customs and Border Protection available at https://www.cbp.gov/newsroom/stats/usbp-swborder-apprehensions-fy2017#field-content-tab-group-tab-9, attached hereto as Ex. 46 and US

4
5
6
7
8
9
10

Border Patrol Southwest Border Apprehensions by Section FY2018, U.S. Customs and Border
Protection

available

at

https://www.cbp.gov/newsroom/stats/usbp-sw-border-

apprehensions#field-content-tab-group-tab-1, attached hereto as Ex. 47.
121.

On May 11, 2018, White House Chief of Staff John Kelly was interviewed by

National Public Radio. When asked whether he was in favor of the Policy, he acknowledged that
“the vast majority of the people that move illegally into United States are not bad people.

11
They’re not criminals. They’re not MS-13. . . . They’re not bad people. They’re coming here
12
13

for a reason. And I sympathize with the reason. . . . But a big name of the game is deterrence.”

14

See White House Chief of Staff John Kelly’s Interview with NPR (May 11, 2018) available at

15

https://www.npr.org/2018/05/11/610116389/transcript-white-house-chief-of-staff-john-kellys-

16

interview-with-npr, transcript attached hereto as Ex. 48. He noted that the Policy “would be a

17

tough deterrent” but that “this is a technique that no one hopes will be used extensively or for

18

very long.” Id.

19
122.

On June 5, 2018, Attorney General Sessions was asked whether it was “absolutely

20
21

necessary” to “separate parents from children when they are detained or apprehended at the

22

border.” He responded, “yes” and “[i]f people don’t want to be separated from their children,

23

they should not bring them with them. We’ve got to get this message out.” See Hugh Hewitt,

24

US Attorney General Jeff Sessions on Children Separated From Parents at Border, F-1 Visas For

25

PRC Students, and Masterpiece Cakeshop Decision (June 5, 2018) available at

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

36

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

http://www.hughhewitt.com/attorney-general-jeff-sessions-on-the-immigration-policiesconcerning-children-apprehended-at-he-border-and-f-1-visas/, transcript attached hereto as Ex.
49.

4
123.

5
6

On June 14, 2018, Attorney General Sessions quoted a Bible verse ostensibly to

justify the Policy to leaders of the faith community and added: “Having children does not give

7

you immunity from arrest and prosecution.” See Adam Edelman, Sessions Cites Bible in Defense

8

of Breaking up Families, Blames Migrant Parents (June 14, 2018) available at

9

https://www.nbcnews.com/politics/immigration/sessions-cites-bible-defense-breaking-

10

families-blames-migrant-parents-n883296, attached hereto as Ex. 50.

11
124.

Public statements suggest that the Trump Administration intends to use the

12
13

Policy as a negotiating tool to force congressional acquiescence to its proposed immigration

14

legislation. For example, President Trump tweeted on May 26, 2018 that Democrats should “end

15

the horrible law that separates children from there [sic] parents once they cross the Border.” The

16

May

17

https://twitter.com/realDonaldTrump/status/1000375761604370434, and attached hereto as Ex.

18

26,

2018

tweet

is

available

at

51.

19
125.

On May 29, 2018 Senior Advisor to the President Stephen Miller confirmed that

20
21

families are intentionally being traumatized for political gain: “If we were to have those

22

[Republican sponsored] fixes in federal law, the migrant crisis emanating from Central America

23

would largely be solved in a very short period of time,” and “[f]amilies would then therefore be

24

able to be kept together and could be sent home expeditiously and safely.” See Ted Hesson,

25

White House’s Miller Blames Democrats for border crisis, Politico (May 29, 2018) available at

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

37

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

https://www.politico.com/story/2018/05/29/stephen-miller-democrats-border-574537, attached
hereto as Ex. 52.
126.

On June 16, 2018, President Trump confirmed that he is using the Policy to push

4
5
6

lawmakers to enact immigration legislation more in line with his own agenda: “Democrats can
fix their forced family breakup at the Border by working with Republicans on new legislation.”

7

See Kate Sullivan, Trump suggests separation of families at border is a negotiating tool (June

8

16, 2018) available at https://www.cnn.com/2018/06/16/politics/trump-separation-families-

9

negotiating-tool/index.html, attached hereto as Ex. 53.

10

127.

On June 18, 2018, President Trump complained that “[w]e have the worst

11
immigration laws in the entire world. Nobody has such sad, such bad and actually, in many
12
13

cases, such horrible and tough – you see about child separation, you see what’s going on there.”

14

See Ex. 19. He suggested, “[i]f the Democrats would sit down, instead of obstructing, we could

15

have something done very quickly, good for the children, good for the country, good for the

16

world. It could take place quickly.” Id. But in the meantime, he stated, “The United States

17

will not be a migrant camp and it will not be a refugee holding facility, it won’t be.” Id.

18

128.

On June 18, 2018, in remarks before the National Sheriffs’ Association, Attorney

19
General Sessions also suggested that if lawmakers would simply acquiesce to President Trump’s
20
21

demands to fund a wall on the Southwestern border, Defendants would stop separating families:

22

“We do not want to separate parents from their children,” “[i]f we build the wall, if we pass

23

legislation to end the lawlessness, we won’t face these terrible choices.” See Ex. 20.

24
25

129.

DHS Secretary Nielsen also linked the Policy with demands the Administration

has made on Congress: “We are enforcing the laws passed by Congress, and we are doing all

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

38

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

that we can in the executive branch to protect our communities. It is now time that Congress act
to fix our broken immigration system.” See Ex. 21.

4

Defendants’ Family Separation Policy Targets Immigrant Families Based on Their
National Origin

5

130.

6
7

H.

Defendants’ Policy is directed only at “Southwest Border crossings” (see Ex. 13),

the majority of which consist of immigrants from Latin America. Indeed, in its reports on recent
“Southwest Border Apprehensions,” CBP only tracks family unit apprehensions for immigrants

8
from El Salvador, Guatemala, Honduras, and Mexico. See U.S. Border Patrol Southwest Border
9
10

Apprehensions by Sector FY2018, available at https://www.cbp.gov/newsroom/stats/usbp-sw-

11

border-apprehensions, attached hereto as Ex. 54. Defendants do not track whether the Policy is

12

impacting family unit migration from any other countries.

13
14
15

131.

Defendants’ stated rationale for adopting the Policy—i.e., to deter migration—is

ineffective and not a legitimate law enforcement tactic. Rather than deter migration, the number
of families and unaccompanied children apprehended has steadily increased since Defendants

16
17
18

have implemented the Policy. According to Defendants’ own statistics, in March 2018, the
number of families apprehended at the Southwestern border was 37,385; in April 2018, 38,278;

19

and in May 2018, 40,344. See Ex. 8. The number of family units arriving at ports of entry

20

determined to be inadmissible also stayed relatively stable; in March 2018, the number was

21

5,162, in April, 5,445, and in May 4,718. Id.

22

132.

Defendants also report that U.S. border agents made more than 50,000 arrests in

23
each of the months of March, April and May 2018—“an indication that escalating enforcement
24
25
26

tactics by the Trump Administration—including separating immigrant parents from their
children—has not had an immediate deterrent effect.” See Nick Miroff, Border arrests exceed

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

39

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

50,000

for

third

month

in

a

row

(June

6,

2018),

available

at

https://www.washingtonpost.com/world/national-security/border-arrests-exceed-50000-forthird-month-in-a-row/2018/06/06/db6f15a6-680b-11e8-bea7-

4
5
6

c8eb28bc52b1_story.html?utm_term=.72b8f43a7470, attached hereto as Ex. 55.
133.

On May 23, 2018, Steven Wagner, Acting Secretary of the Administration for

7

Children and Families testified before a Senate committee, stating: “In FY 2017, 84 percent of

8

[unaccompanied alien minors] referred to ORR came from Honduras, Guatemala, and

9

El Salvador. To date in FY 2018, 93 percent of referred children come from those countries.” A

10

copy of the Wagner Statement is attached as Ex. 56.

11
134.

On April 6, 2018, President Trump signed a memorandum ordering agencies to

12
13

“expeditiously end” the practice of “catch and release,” a pejorative phrase that refers to the

14

practice of allowing immigrants to be released into the community pending resolution of their

15

immigration cases. See Jesse Byrnes, Trump signs memo ordering end to ‘catch and release”

16

practices, The Hill, available at http://thehill.com/homenews/administration/382054-trump-

17

signs-memo-ordering-end-to-catch-and-release-practices, attached hereto as Ex. 57. For

18

example, the memo orders DHS to submit a report within 45 days “detailing all measures that

19
their respective departments have pursued or are pursuing to expeditiously end ‘catch and
20
21

release’ practices.” Id. It also requests “a detailed list of all existing facilities, including military

22

facilities, that could be used, modified, or repurposed to detain aliens for violations of

23

immigration law” and specifically directs Attorney General Sessions and DHS Secretary

24

Nielsen to identify any resources “that may be needed to expeditiously end ‘catch and release’

25

practices.” Id.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

40

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

135.

The Policy—announced shortly thereafter—targets only the immigrants at the

Southwestern border, the vast majority of whom are from Latin American countries. See Ex. 12.
136.

In stark contrast to Defendants’ Southwestern border actions, DHS’ updated

4
5
6

Northern Border Strategy, announced on June 12, 2018, aims “to facilitate the flow of lawful
cross-border trade and travel, and strengthen cross-border community resilience.” Although the

7

Northern Border Strategy is intended, in part, to “safeguard our northern border against terrorist

8

and criminal threats,” the strategy does not demand prosecution and family separation for all

9

unauthorized entrants at the northern border of the United States. See Department of Homeland

10

Security

Northern

Border

Strategy

available

at

11
https://www.dhs.gov/sites/default/files/publications/18_0612_PLCY_DHS-Northern-Border12
13
14
15
16
17
18

Strategy.pdf, attached hereto as Ex. 58.
137.

The Policy is intended to target immigrants by their country of origin and is

consistent with the demonstrated anti-Latina/o bias repeatedly shown by President Trump.
138.

Members of the Trump Administration repeatedly disparaged Latin American

countries during the presidential campaign and during the Trump presidency. When Mr. Trump
announced his campaign at Trump Tower in June 2015, he announced: “When Mexico sends its

19
people, they’re not sending their best. . . . They’re bringing drugs. They’re bringing crime.
20
21

They’re rapists.” See Z. Byron Wolf, Trump basically called Mexicans rapists again, available

22

at https://www.cnn.com/2018/04/06/politics/trump-mexico-rapists/index.html, attached hereto

23

as Ex. 59. In that same speech, he first proposed the idea of building a wall along the

24

Southwestern border and “mak[ing] Mexico pay for that wall.”

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

41

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

139.

During the first Republican presidential debate, then-candidate Trump again

stated his distaste for immigrants from Mexico: “The Mexican government is much smarter,
much sharper, much more cunning. And they send the bad ones over because they don’t want

4
5
6

to pay for them. They don’t want to take care of them.” See Andrew O’Reilly, At GOP debate,
Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News (Aug. 6, 2015) available

7

at

http://www.foxnews.com/politics/2015/08/06/at-republican-debate-trump-says-mexico-is-

8

sending-criminals-because-us.html, attached hereto as Ex. 60.

9
10

140.

Soon after, on August 25, 2015, then-candidate Trump refused to answer questions

about immigration posed by Jorge Ramos, a Mexican-American and the top news anchor at

11
Univision, a Spanish-language news network. After sending his bodyguard to physically remove
12
13

Mr. Ramos, then-candidate Trump derisively told Mr. Ramos to “Go back to Univision.” See Phillip

14

Rucker, First, Trump booted Univision anchor Jorge Ramos out of his news conference. Then things

15

got

16

https://www.washingtonpost.com/news/post-politics/wp/2015/08/25/first-trump-booted-

17

univision-anchor-jorge-ramos-out-of-his-news-conference-then-things-got-

18

interesting,

The

Washington

Post,

(Aug.

25,

2015)

available

at

interesting/?utm_term=.33965c195aca, attached hereto as Ex. 61.

19
141.

In May 2016, then-candidate Trump referred to anti-Trump protestors who

20
21

carried the Mexican flag as “criminals” and “thugs.” Donald Trump, “The protestors in New

22

Mexico were thugs who were flying the Mexican Flag.” The May 25, 2016 tweet is attached

23

hereto as Ex. 62. Donald Trump, “Many of the thugs that attacked peaceful Trump supporters

24

in San Jose were illegals.” The June 4, 2016 tweet is attached hereto as Ex. 63.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

42

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

142.

In June 2016, then-candidate Trump impugned the integrity of a federal judge

presiding over a lawsuit against one of his businesses. Trump commented that Judge Gonzalo
Curiel’s rulings against him “[H]as to do with perhaps that I’m very, very strong on the border.

4
5
6

. . . Now, he is Hispanic, I believe. He is a very hostile judge to me.” See Jose A. DelReal and
Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts,

7

The

8

https://www.washingtonpost.com/politics/2016/06/01/437ccae6-280b-11e6-a3c4-

9

0724e8e24f3f_story.html?utm_term=.c82ec7177a13, attached hereto as Ex. 64.

10

Washington

143.

Post

(June

1,

2016)

available

at

U.S. House Speaker Paul Ryan publicly rebuked his own party’s presumptive

11
presidential nominee, stating: “Claiming a person can’t do the job because of their race is sort
12
13

of like the textbook definition of a racist comment. I think that should be absolutely disavowed.

14

It’s absolutely unacceptable.” See Tom Kertscher, Donald Trump’s racial comments about

15

Hispanic judge in Trump University case, Politifact (June 8, 2016) available at

16

http://www.politifact.com/wisconsin/article/2016/jun/08/donald-trumps-racial-comments-

17

about-judge-trump-un/, attached hereto as Ex. 65.

18

144.

In an interview with CBS News on June 5, 2016, then-candidate Trump reiterated

19
his views, noting that “[Judge Curiel]’s a member of a club or society very strongly, pro-Mexican,
20
21

which is all fine. But I say he’s got bias.” See CBS News, Transcript of Face the Nation (June

22

5, 2016) available at https://www.cbsnews.com/news/face-the-nation-transcripts-june-5-2016-

23

trump/, attached hereto as Ex. 66. Judge Curiel is a member of the San Diego Chapter of the La

24

Raza Lawyers Association. See Michelle Ye Hee Lee, Trump Supporters’ False Claim That

25

Trump U Judge Is a Member of a Pro-immigrant Group, The Washington Post (June 7, 2016)

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

43

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

available

at

https://www.washingtonpost.com/news/fact-checker/wp/2016/06/07/trump-

supporters-false-claim-that-trump-u-judge-is-a-member-of-a-pro-immigrantgroup/?utm_term=.07b5b0148791, attached hereto as Ex. 67.

4
145.

5
6

On August 21, 2015, two men urinated on a sleeping Latino man and then beat him

with a metal pole. They later told police that “Donald Trump was right; all these illegals need to

7

be deported.” When asked about the incident, then-candidate Trump failed to condemn the men,

8

instead describing them as “passionate.” See Adrian Walker, ‘Passionate’ Trump fans behind

9

homeless

10

man’s

beating?

(Aug.

21,

2015)

available

at

https://www.bostonglobe.com/metro/2015/08/20/after-two-brothers-allegedly-beat-homeless-

11
man-one-them-admiringly-quote-donald-trump-deporting12
13

illegals/I4NXR3Dr7litLi2NB4f9TN/story.html, attached hereto as Ex. 68. Specifically, Trump

14

stated, “[i]t would be a shame . . . I will say that people who are following me are very passionate.

15

They love this country and they want this country to be great again. They are passionate.” Id.

16
17
18

146.

In October 2016, during a presidential debate, then-candidate Trump responded

to a question about immigration by stating: “We have some bad hombres here and we’re going
to get them out.” See Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the

19
United

States,

The

Washington

Post

(Aug.

30,

2017)

available

at

20
21

https://www.washingtonpost.com/news/post-politics/wp/2016/10/19/trump-on-immigration-

22

there-are-bad-hombres-in-the-united-states/?utm_term=.e24f12fed08a, attached hereto as Ex.

23

69.

24
25

147.

On January 27, 2017, newly-inaugurated President Trump and Mexico’s

President Peña Nieto discussed President Trump’s proposal for a border wall over the phone.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

44

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

During that transcribed conversation, President Trump again referred to “hombres” stating:
“You have some pretty tough hombres in Mexico that you may need help with, and we are
willing to help you with that big-league. But they have to be knocked out and you have not done

4
5
6

a good job of knocking them out.” See Greg Miller et. al., Full Transcripts of Trump’s Calls
with Mexico and Australia, The Washington Post (Aug. 3, 2017) available at

7

https://www.washingtonpost.com/world/national-security/you-cannot-say-that-to-the-press-

8

trump-urged-mexican-president-to-end-his-public-defiance-on-border-wall-transcript-

9

reveals/2017/08/03/0c2c0a4e-7610-11e7-8f39-

10

eeb7d3a2d304_story.html?utm_term=.85f36aa7a876, attached hereto as Ex. 70.

11
148.

In August 2017, President Trump pardoned Joe Arpaio, the former Arizona

12
13

sheriff who oversaw operations that consistently targeted and harassed Latino residents in

14

Maricopa County. After a thorough investigation, the U.S. Department of Justice issued a report

15

in 2011 finding that Mr. Arpaio’s office had committed numerous civil rights violations by, inter

16

alia, conducting immigration sweeps that routinely violated the Fourth Amendment; detaining

17

Latino residents based on fabricated charges; placing Spanish-speaking inmates in solitary

18

confinement as punishment for not speaking English; refusing to accept requests for basic

19
services written in Spanish; pressuring Latino inmates to sign deportation forms; and referring
20
21

to Latino inmates as “wetback,” “Mexican bitches,” and “stupid Mexicans.” See Letter/Report,

22

attached hereto as Ex. 71. The report found that Mr. Arpaio’s own actions “promoted a culture

23

of bias in his organization and clearly communicated to his officers that biased policing would

24

not only be tolerated, but encouraged.” Id.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

45

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

149.

A federal judge ruled twice that Mr. Arpaio’s deputies unlawfully deprived

detainees of food and medical care, and tortured inmates by locking them in unbearably hot
solitary confinement cells in violation of the Eighth Amendment. See Mark Joseph Stern, White

4
5
6

Nationalist Rule is Already Here (Aug. 15, 2017), available at http://www.slate.com/news-andpolitics/2018/06/district-court-judge-rules-that-trump-administration-child-separations-would-

7

be-unconstitutional.html, attached hereto as Ex. 72. The vast majority of individuals jailed by

8

Mr. Arpaio’s office were Latinos detained on suspicion of being undocumented. Id. In issuing

9

the pardon, President Trump stated that Mr. Arpaio “has done a lot in the fight against illegal

10

immigration. He’s a great American patriot and I hate to see what has happened to him.” Id.

11
150.

In February 2018, President Trump referred to nations such as El Salvador as

12
13

“shithole countries” in a meeting with lawmakers, and suggested that the U.S. preferred to

14

receive immigrants from countries like Norway. See David Boddiger, Trump falsely links

15

Central American Immigrants to Drug Trafficking, Again (Feb. 3, 2018) available at

16

https://splinternews.com/trump-falsely-links-central-american-immigrants-to-drug-

17

1822692216, attached hereto as Ex. 73.

18

151.

That same month, President Trump said of undocumented immigrants from

19
Mexico and Central America, “You know they’re bad. They’re pouring in from El Salvador,
20
21
22

Honduras, Mexico, all over.” See Ex. 73. He added, “These countries are not our friends.” Id.
152.

In April 2018, President Trump expressed repeated frustration with immigration

23

numbers at the Southwestern border, and made a number of racially charged comments around

24

the time he issued the memorandum directing DHS Secretary Nielsen and Attorney General

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

46

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

Sessions to end catch-and-release practices. For example, President Trump again insinuated that
Mexican immigrants are rapists. See Ex. 59.

3

153.

President Trump also commented multiple times about a “caravan” of Central

4
5
6

American immigrants aiming to reach the Southwestern border, many of whom planned on
seeking asylum. He stated that “Mexico has the absolute power to not let these large ‘Caravans’

7

of people enter our country.” See Edgard Garrido, Migrant ‘caravan’ that angers Trump nears

8

U.S.-Mexico border, Reuters (April 23, 2018), available at https://www.reuters.com/article/us-

9

usa-immigration-caravan/migrant-caravan-that-angers-trump-nears-u-s-mexico-border-

10

idUSKBN1HU2ZB, attached hereto as Ex. 74. The “caravans” are an apparent reference to a

11
contingent of Latin American immigrants traveling through Mexico. Id. President Trump stated:
12
13

“If it reaches our border, our laws are so weak and so pathetic . . . it’s like we have no border.”

14

See Klein, Starr, Shoichet, Trump: ‘We’re going to be guarding our border with the military’

15

until

16

https://www.cnn.com/2018/04/03/politics/trump-border-wall-military/index.html,

17

hereto as Ex. 75. He added, “[t]he caravan makes me very sad that this could happen to the

18

wall

complete

(April

3,

2018)

available

at
attached

United States.” Id.

19
154.

After expressing frustration regarding the “caravan,” President Trump announced

20
21

that he planned to dispatch U.S. troops to guard the U.S.-Mexico border because “we have very

22

bad laws for our border” so “we’re going to do some things militarily, until we can have a wall

23

and proper security—we’re going to be guarding our border with the military.” See Ex. 75.

24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

47

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

155.
“illegal

On June 19, 2018, President Trump tweeted that without strong border policies

immigrants”

would

“pour

into

and

infest

our

Country.”

See

https://twitter.com/realDonaldTrump/status/1009071403918864385.

4
156.

5
6

On June 20, 2018, shortly after signing the Executive Order, at a rally in Duluth,

Minnesota amid chants of “Build the Wall,” President Trump repeated: “They’re not sending

7

their finest. We’re sending them the hell back. That’s what we’re doing.” See Katie Rogers and

8

Jonathan Martin, ‘We’re Sending them the Hell Back,’ Trump Says of Securing the County’s

9

Borders,

10

The

New

York

Times

(June

20,

2018)

available

at

https://www.nytimes.com/2018/06/20/us/politics/trump-minnesota-rally.html, attached hereto

11
as Ex. 76.
12
13

I.

The Policy Has Been Widely Denounced by the United Nations, Professional
Organizations, Public Figures, and Religious Leaders

14
15

157.

The United Nations High Commissioner for Human Rights has called for an end

to the Policy, saying, “The thought that any state would seek to deter parents by inflicting such

16
17
18

abuse on children is unconscionable. I call on the United States to immediately end the practice
of forcible separation of these children.” See Stephanie Nebehay, U.N. rights boss calls for an

19

end

20

https://www.reuters.com/article/us-un-rights/un-rights-boss-calls-for-end-to-trumps-policy-of-

21

family-separation-idUSKBN1JE0NA, attached hereto as Ex. 77. A spokesperson for the U.N.

22

to

Trump’s

policy

of

family

separation,

(June

18,

2018)

available

at

also said that the Policy “amounts to arbitrary and unlawful interference in family life, and is a

23
serious violation of the rights of the child.” See Nick Cumming-Bruce, Taking Migrant Children
24
25

From

Parents

Is

Illegal,

U.N.

Tells

U.S.,

available

at

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

48

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

https://www.nytimes.com/2018/06/05/world/americas/us-un-migrant-children-families.html,
attached hereto as Ex. 78.
158.

Numerous professional and religious organizations have also denounced the

4
5
6

Policy. On June 12, 2018, the American Bar Association (ABA) expressed “strong opposition”
to Defendants’ “separation of children from their parents when arriving at the southern border,”

7

calling the practice “unfair, inhumane, and, in the end, ineffective.” See ABA letter attached

8

hereto as Ex. 79 (noting “that the primary purpose of the ‘zero tolerance’ Policy is to serve as a

9

deterrent for migrant parents” at the Southwestern border, and “that family separation is not a

10

collateral consequence of regular law enforcement” but “an explicitly intentional goal.”).

11
159.

The Policy has also been widely condemned by the medical community. For

12
13

example, the American Association of Pediatrics (AAP) recently denounced Defendants’ Policy,

14

writing:

15

pediatricians – protecting and promoting children’s health. In fact, highly stressful experiences,

16

like family separation, can cause irreparable harm, disrupting a child’s brain architecture and

17

affecting his or her health. This type of prolonged exposure to serious stress - known as toxic

18

“Separating children from their parents contradicts everything we stand for as

stress - can carry lifelong consequences for children.” See AAP Statement Opposing Separation

19
of Mothers and Children at the Border (March 4, 2017), available at https://www.aap.org/en20
21

us/about-the-aap/aap-press-room/Pages/immigrantmotherschildrenseparation.aspx,

attached

22

hereto as Ex. 80; See also AAP Statement Opposing Separation of Children and Parents at the

23

Border (May 8, 2018), available at https://www.aap.org/en-us/about-the-aap/aap-press-

24

room/Pages/StatementOpposingSeparationofChildrenandParents.aspx, attached hereto as Ex.

25

81; The American Academy of Family Physicians also released a statement in opposition, urging

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

49

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

the federal government to “withdraw its policy” and “instead, give priority to supporting families
and protecting the health and well-being of the children within those families.” See American
Academy of Family Physicians Statement Regarding the United States Department of Homeland

4
5
6

Security’s

Policy

to

Separate

Children

from

Adult

Caregivers

available

at

https://www.aafp.org/dam/AAFP/documents/advocacy/prevention/equality/ST-

7

DHSPolicyChild-AdultSeparation-061618.pdf, attached hereto as Ex. 82. Further, the American

8

Medical Association “strongly urge[d]” the Defendants to withdraw the Policy, writing, “It is

9

well known that childhood trauma and adverse childhood experiences created by inhumane

10

treatment often create negative health impacts that can last an individual’s entire lifespan.” See

11
AMA Urges Administration to Withdraw “Zero Tolerance” Policy (June 20, 2018) available at
12
13
14

https://www.ama-assn.org/ama-urges-administration-withdraw-zero-tolerance-policy, attached
hereto as Ex. 83.
160.

15

On June 13, 2018, Daniel Cardinal DiNardo of the United States Conference of

16

Catholic Bishops (USCCB) “join[ed] Bishop Joe Vásquez, Chairman of USCCB’s Committee

17

on Migration, in condemning the continued use of family separation at the U.S./Mexico border:

18

“Families are the foundational element of our society” and separating parent from child “is not

19
the answer” to “protecting our borders.” See A Statement from Daniel Cardinal DiNardo, United
20
21
22
23
24
25

States

Conference

of

Catholic

Bishops,

(June

13,

2018)

available

at

http://www.usccb.org/news/2018/18-098.cfm, attached hereto as Ex. 84.
161.

Likewise, the Southern Baptist Convention recently passed a resolution affirming

that immigrants be treated “with the same respect and dignity as those native born,” and
emphasizing “maintaining the priority of family unity.” See Sasha Ingber, Faith Leaders Oppose

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

50

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Trump’s Immigration Policy of Separating Children From Parents, available at
https://www.npr.org/2018/06/16/620651574/faith-leaders-oppose-trumps-immigration-policyof-separating-children-from-paren, attached hereto as Ex. 85.

4
162.

5
6

Prominent figures from both political parties have denounced the Policy. For

example, on June 17, 2018, former First Lady Laura Bush wrote: “Our government should not

7

be in the business of warehousing children in converted box stores or making plans to place them

8

in tent cities in the desert outside of El Paso. These images are eerily reminiscent of the Japanese

9

American internment camps of World War II, now considered to have been one of the most

10

shameful episodes in U.S. history.” See Laura Bush: Separating Children from Their Parents at

11
the

Border

Breaks

my

Heart,

The

Washington

Post,

available

at

12
13

https://www.washingtonpost.com/opinions/laura-bush-separating-children-from-their-parents-

14

at-the-border-breaks-my-heart/2018/06/17/f2df517a-7287-11e8-9780-

15

b1dd6a09b549_story.html?utm_term=.84b533c697a8, attached hereto as Ex. 86. Likewise, Jeb

16

Bush, former Florida Governor, recently stated: “Children shouldn’t be used as a negotiating

17

tool.” The June 18, 2018 tweet is attached hereto as Ex. 87.

18

163.

At least one federal court has found that Defendants’ practice of separating

19
immigrant families “arbitrarily tears at the sacred bond between parent and child” and “is brutal,
20
21

offensive, and fails to comport with traditional notions of fair play and decency.” Ms. L. v. U.S

22

Immigration & Customs Enf’t, No. 18-cv-0428 DMS, 2018 WL 2725736, at *12 (S.D. Cal.

23

June 6, 2018).

24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

51

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

J.

Defendants’ Policy Harms the States’ Sovereign Interests
164.

Defendants’ Policy and subsequent actions harm the States’ sovereign interests

by interfering with their licensing authority and rendering the States unable to honor their own

4
5
6

policies favoring family unity.
165.

Even for residential facilities that are federally funded, States have sovereign

7

responsibility for the licensing, inspection, and monitoring of out-of-home care providers (i.e.,

8

providers who care for children away from their parents). The States conduct periodic licensing

9

monitoring visits to these facilities, meeting with the staff and children in their care, to ensure

10

that these facilities meet minimum safety standards, including background check approvals,

11
facility safety standards, and ensuring the facilities provide necessary and appropriate care to the
12
13
14

children.
166.

For example, in Washington State, any agency that cares for children on a 24-hour

15

basis away from their parents must be licensed. See, e.g. RCW 74.15.020, 74.15.090. Under

16

RCW 74.15.030(7) and .080, the state’s department of social and health services has the

17

authority and duty to access and inspect the facility’s records for the purpose of determining

18

whether or not there is compliance with state licensing requirements. See also ch. 388-145 WAC

19
(the licensing requirements for group homes and youth shelters). These licensing requirements
20
21

apply to all private facilities, even those operated by a private agency contracting with the federal

22

government.

23

167.

24
25

In the Commonwealth of Massachusetts, no “agency or institution of the federal

government” may operate a “[foster care] placement agency, group care facility, or temporary
shelter facility” for children unless licensed by the Department of Early Education and Care

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

52

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

(EEC). Mass. Gen. Laws Ch. 15D, § 1A, 6. EEC “may, at any reasonable time, visit and inspect
any facility” subject to such licensure. Id, § 9.
168.

Likewise, New York State has licensing and oversight responsibilities over the

4
5
6

facilities where immigrant children who are separated from their parents are placed. Specifically,
the Bureau of Child Welfare and Community Services (“CWCS”) of the New York State Office

7

of Children and Family Services (“OCFS”) has regulatory, licensing, inspection and supervisory

8

authority over residential programs that care for foster children. N.Y. Soc. Serv. Law §§ 460-b,

9

460-c, 462-a. OCFS issues operating certificates to non-profit agencies in New York State that

10

provide residential care in a congregate setting to UACs, including the children who have been

11
separated from their parents at the border. OCFS, as the licensing state agency of child residential
12
13

programs in New York, retains the authority to conduct building, equipment, fire and safety

14

inspections of these facilities. Also, OCFS has the statutory authority to establish regulatory

15

standards for the certification or approval of foster homes, and the authority of an agency to

16

certify or approve foster homes. N.Y. Soc. Serv. Law §§ 378, 460-a, N.Y. Not-for-Profit Corp.

17

Law § 404(b). Provider agencies in New York that contract with ORR place UACs in foster

18

homes that the agency has approved or certified pursuant to this authority from the state.

19
169.

In the State of North Carolina, “[n]oTo s person shall operate, establish or provide

20
21

foster care for children or receive and place children in residential care facilities, family foster

22

homes, or adoptive homes without first applying for a licensure to the Department” of Health

23

and Human Services]. N.C. Gen. Stat. § 131D-10.3. In addition to other powers and duties, the

24

North Carolina Department of Health and Human Services also has the authority to “[i]nspect

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

53

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

facilities and obtain records, documents, and other information necessary to determine
compliance with” North Carolina law and regulations. Id. § 131D-10.6(6).
170.

Likewise, Delaware licenses, registers, and monitors all residential and

4
5
6

nonresidential childcare facilities including . . . child placement and adoption agencies . . .”
29 Del. C. § 9003 (7). Delaware’s monitoring scheme includes the right of entrance, inspection,

7

and access to the papers of childcare facilities operating within Delaware and entities that operate

8

within Delaware and place children in other states. 31 Del. C. §§ 343, 344.

9

circumstances, a violation of Delaware’s childcare licensing requirements may constitute a

10

In certain

criminal act. 31 Del. C. § 345.

11
171.

Other States have similar licensing authority and statutory regimes. These

12
13
14
15

provisions are intended to protect children from substandard housing and care, and are essential
to the wellbeing of minors placed in facilities located in the States.
172.

The United States’ Ex Parte Application for relief from the Flores Settlement is

16

a frontal attack on that sovereign interest. That request seeks rescission of Flores’s protections

17

and a “determin[ation] that the Agreement’s state licensure requirement does not apply to ICE

18

family residential facilities.” The United States has thus sought to extinguish state licensing

19
powers over federally contracted out-of-home care providers, leaving those facilities wholly
20
21

unregulated at the local level. The government’s attempt to modify the Flores settlement terms

22

by removing States’ licensing authority and jurisdiction interferes with the States’ sovereign

23

powers.

24
25

173.

Moreover, each of the States is required to respect family integrity absent a

finding that a parent is unfit or unavailable to care for a child. Here, the federal government has

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

54

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

intentionally separated parents from children and is leaving it to the States’ court systems to
establish alternative guardianships for them, or relying on state-licensed foster care facilities to
care for the children, rendering the States unable to enforce the legal mandates and public

4
5
6
7

policies that require keeping families together unless the best interests of the child dictate
otherwise.
174.

For example, the State of Washington has a longstanding public policy affirming

8

the importance of family integrity and the primacy of the parent-child relationship. Wash. Rev.

9

Code § 13.34.020 “declares that the family unit is a fundamental resource of American life which

10

should be nurtured” and mandates “that the family unit should remain intact unless a child’s right

11
to conditions of basic nurture, health, or safety is jeopardized.” Wash. Rev. Code § 26.09.002
12
13

likewise “recognizes the fundamental importance of the parent-child relationship to the welfare

14

of the child” and requires “that the relationship between the child and each parent [] be fostered

15

unless inconsistent with the child’s best interests.” Similarly, Washington’s child abuse and

16

neglect law, contained in chapter 26.44 RCW, enshrines the state’s policy that “[t]he bond

17

between a child and his or her parent . . . is of paramount importance[.]” RCW 26.44.010. Under

18

Washington law, the state is justified to intervene in that relationship only when a child is

19
deprived of the right to conditions of minimal nurture, health, and safety.
20
21

175.

Washington also has recognized that children in government custody have

22

substantive due process rights under the U.S. Constitution. See Braam v State of Washington,

23

150 Wn.2d 689, 81 P.3d 851 (2003) (foster children possess substantive due process rights).

24

While these rights are not coextensive with parental rights in every context, Washington

25

recognizes a child’s constitutional rights “to be free from unreasonable risk of harm, including a

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

55

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

risk flowing from the lack of basic services, and a right to reasonable safety.” Id. The intentional
exposure of a child to an unreasonable risk of harm, including physical or mental injury, violates
these rights.

4
5
6

176.

Washington has also declared that practices that discriminate against any of its

inhabitants because of race, creed, color, or national origin are matters of public concern that

7

threaten the rights and proper privileges of the State and harm the public welfare, health, and

8

peace of the people. See Wash. Rev. Code § 49.60.010.

9
10

177.

The Commonwealth of Massachusetts has long committed itself to the

promotion and safeguarding of the family unit. Massachusetts law, for example, notes that “the

11
family is the best source of child rearing,” 110 C.M.R. 1.02, and holds that “the policy of this
12
13

commonwealth [is] to direct its efforts, first, to the strengthening and encouragement of family

14

life for the care and protection of children.” Mass. Gen. Laws c. 119, § 1. Normally, therefore,

15

“the interest of the child is best served by a stable, continuous environment with his or her own

16

family.” Adoption of Frederick, 405 Mass. 1, 4 (1989). As a result, the Commonwealth allows

17

“state intervention into a family unit [to] be used only when it is clearly needed to protect a

18

child.” 110 C.M.R. 1.02.

19
178.

The Commonwealth of Massachusetts has also long protected the civil rights and

20
21

liberties of its residents, outlawing practices that harm or discriminate individuals based on race,

22

color, religious creed, or national origin. See, e.g., Mass. Gen. Laws c. 151B, § 4; c. 151C, § 2;

23

c. 76, § 5; and c. 272, § 98.

24
25

179.

The State of Oregon has statutorily codified a number of deeply-rooted public

concerns that are grossly undermined by defendants’ unlawful actions, thus harming Oregon’s

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

56

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

sovereign interests. Oregon recognizes the intrinsic value of family relationships and prioritizes
protecting them. For example, Or. Rev. Stat. § 419B.007 states the policy of Oregon is to
“preserve family life” by “stabilizing the family.” In addition, Oregon has declared there is a

4
5
6

“strong preference” that children live “with their own families.” Or. Rev. Stat. § 419B.090(5).
Similarly, custody determinations are based on the best interest of the child, including “[t]he

7

emotional ties between the child and other family members” as well as “[t]he desirability of

8

continuing an existing relationship.” Id. Oregon thus places great value on the parent-child

9

relationship, on “interaction, companionship, interplay and mutuality, that fulfilled the child’s

10

psychological needs for a parent” in addition to a child’s physical needs. Or. Rev. Stat. § 109.119

11
(10)(a).
12
13

180.

Oregon further recognizes that children are individuals who have legal rights.

14

Among those rights are “freedom from…emotional abuse or exploitation.” Or. Rev. Stat. §

15

419B.090(1). To that end, Oregon has enacted laws and policies to protect children’s rights. For

16

example, “[i]t is the policy of the State of Oregon to safeguard and promote each child’s right to

17

safety, stability and well-being and to safeguard and promote each child’s relationships with

18

parents, siblings, grandparents, other relatives and adults with whom a child develops healthy

19
emotional attachments.” Or. Rev. Stat. § 419B.090(3).
20
21

181.

Moreover, Oregon acknowledges the importance of due process rights afforded

22

to parents facing “interference” with their right to “direct the upbringing of their children”

23

because the policy of Oregon is to “guard the liberty interest of parents protected by the

24

Fourteenth Amendment to the United States Constitution and to protect the rights and interests

25

of children.” Or. Rev. Stat. § 419B.090(4). Oregon requires appointment of legal counsel for

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

57

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

parents whenever due process so requires, and courts must consider “[t]he duration of and degree
of invasiveness of the interference with the parent-child relationship” that could result from legal
proceedings as well as the “effects” the proceedings may have on later proceedings or events

4
5
6

that may interfere with the parent-child relationship. Or. Rev. Stat. § 419B.205(1). Pursuant to
Or. Rev. Stat. § 419B.165, a child taken into custody must be released to a parent unless a court

7

order prevents it or there is probable cause to believe the child may be endangered by immediate

8

release.

9
10

182.

When parents and children are separated, Oregon prioritizes a child’s existing

relationships in considering placement alternatives. For example, “there shall be a preference

11
given to placement of the child or ward with relatives and persons who have a caregiver
12
13

relationship with the child.” Or. Rev. Stat. § 419B.192(1). Oregon law also recognizes the value

14

of sibling relationships and requires state social agencies to make “diligent efforts” to keep

15

siblings together when they have been separated from their parents.

16

419B.192(2).

17
18

183.

Or. Rev. Stat. §

Children separated from families in Oregon are entitled to participate in age and

developmentally appropriate activities. Specifically, this includes activities that are reflective

19
of and promote “development of cognitive, emotional, physical and behavioral capacities that
20
21

are typical for an age or age group.”

Or. Rev. Stat. § 419B.194(a)(A). Moreover, Oregon

22

requires appropriate activities for a specific child separated from family “based on the

23

developmental stages attained by the child.” Or. Rev. Stat. § 419B.194(a)(B). In making these

24

determinations, the “reasonable and prudent parent standard” applies.

25

Or. Rev. Stat. §

419B.194(b). The standard is characterized by “careful and sensible parental decisions that

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

58

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

maintain the health, safety and best interests of a child or ward while encouraging the emotional
and developmental growth of the child or ward…” Id.
184.

Oregon has also codified anti-discrimination policies that protect all Oregon

4
5
6

residents from disparate treatment based on race, color, religion, sex, sexual orientation, national
origin, marital status or age. Or. Rev. Stat. § 659A.403(1). Further, it is unlawful for any person

7

to deny another full and equal accommodations, advantages, facilities, and privileges of any

8

place of public accommodation. Or. Rev. Stat. § 659A.403(3).

9
10

185.

The State of California similarly has a long history of preserving the integrity of

the family unit and the parent-child relationship.

For example, California Welfare and

11
Institutions Code section 11205 declares “the family unit is of fundamental importance to society
12
13

in nurturing its members,” and states “[e]ach family has the right and responsibility to provide

14

sufficient support and protection of its children.” California’s policy to “preserve and strengthen

15

a child’s family ties whenever possible” and to remove a child from the custody of his or her

16

parents “only when necessary for his or her welfare or for the safety and protection of the public”

17

is delineated in California Welfare and Institution Code section 201, subdivision (a), and section

18

16000, subdivision (a).

19
186.

California’s interests in protecting the physical, emotional and psychological

20
21

health of minors and in preserving and fostering the parent-child relationship “are extremely

22

important interests that rise to the level of ‘compelling interests’ for purposes of constitutional

23

analysis.” American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 348 (1997).

24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

59

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

187.

It is California policy that social services programs must prevent or reduce

inappropriate institutional care by providing community-based care, home-based care, or other
forms of less intensive care. Cal. Welf. & Inst. Code § 13003(4).

4
5
6
7
8
9
10

188.

In California, per statute, any out-of-home placement of children must be in the

“least restrictive family setting,” and should promote “normal childhood experiences that [are]
suited to meet the child's or youth's individual needs.” Cal. Welf. & Inst. Code § 16000(a).
189.

California also has robust constitutional and statutory protections against

discrimination. For example, the California Constitution protects against discrimination on the
basis of race, creed, color or national or ethnic origin. Cal. Const. art. I, § 8. California law also

11
protects against discrimination on the basis of ancestry, citizenship, primary language, and
12
13

immigration status. Cal. Civ. Code § 51. California is also committed to developing strategic

14

polices and plans regarding health issues affecting immigrants and refugees. Cal. Health & Saf.

15

Code § 131019.5.

16
17
18

190.

The State of New Mexico’s laws embody a public policy dedicated to the

preservation of the family unit. NMSA 1978, Sec. 32A-1-3 (2009). To “the maximum extent
possible, children in New Mexico shall be reared as members of a family unit.” Id. See also

19
NMSA 1978, Section 40-15-3 (2005) (“It is the policy of the state that its laws and programs
20
21

shall: support intact, functional families and promote each family's ability and responsibility to

22

raise its children; strengthen families in crisis and at risk of losing their children, so that children

23

can remain safely in their own homes when their homes are safe environments and in their

24

communities…help halt the breakup of the nuclear family[.]”). Further, New Mexico’s Family

25

Preservation Act clearly indicates the purpose of the Act is to “confirm the state’s policy of

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

60

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

support for the family” as a “institution” and that the Act is “intended to serve as a benchmark
against which other legislation may be measured to assess whether it furthers the goals of
preserving and enhancing families in New Mexico.” NMSA 1978, Section 40-15-2 (2005). New

4
5
6
7

Mexico case law affirms there is a clearly established right to familial integrity embodied in the
Fourteenth Amendment. Oldfield v. Benavidez, 1994-NMSC-006, ¶ 14, 116 N.M. 785.
191.

The New Mexico Children’s Code also ensures that New Mexican parents have

8

substantial due process protections prior to losing the right to care of and custody of their own

9

children. See NMSA 1978, Section 32A-4-28. The sole fact that a parent is incarcerated is not

10

a basis for terminating parental rights. Id. A parent's fundamental liberty interest in the care,

11
custody, and management of their children is well established. See State ex rel. Children, Youth
12
13

& Families Dep't v. Mafin M., 2003–NMSC–015, ¶ 18, 133 N.M. 827, 70 P.3d 1266; State ex

14

rel. Children, Youth & Families Dep't v. Joe R., 1997–NMSC–038, ¶ 29, 123 N.M. 711, 945

15

P.2d 76. “[T]he parent-child relationship is one of basic importance in our society ... sheltered

16

by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or

17

disrespect.” State ex rel. Children, Youth & Families Dep't v. Anne McD., 2000–NMCA–020, ¶

18

22, 128 N.M. 618, 995 P.2d 1060 (alteration in original) (internal quotation marks and citation

19
omitted). Thus, we have recognized that process is due when a proceeding affects or interferes
20
21

with the parent-child relationship. State ex rel. Children, Youth & Families Dep't v. Stella P.,

22

1999–NMCA–100, ¶ 14, 127 N.M. 699, 986 P.2d 495; State ex rel. Children, Youth & Families

23

Dep't v. Rosa R., 1999–NMCA–141, ¶ 13, 128 N.M. 304, 992 P.2d 317 (recognizing that

24

constitutionally adequate procedures must be in place before the State can investigate or

25

terminate the parent-child relationship).

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

61

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

192.

New Mexico custody determinations are also driven by the best interests of the

child. See Schuermann v. Schuermann, 1980-NMSC-027, ¶ 6, 94 N.M. 81 (“In any proceeding
involving custody, the courts' primary concern and consideration must be for the child's best

4
5
6

interests.”) (citing NMSA 1978, Section 40-4-9(A) (1977)). “In any case in which a judgment
or decree will be entered awarding the custody of a minor, the district court shall, if the minor is

7

under the age of fourteen, determine custody in accordance with the best interests of the child.”

8

Id.

9
10

193.

The laws of the State of New Mexico dictate that the best interests of a child, if

not properly within the custody of their parents, then lies in the custody of other family members.

11
This policy is not only rooted in the best interests of children generally, but is designed to protect
12
13

both family unity as well as unique cultural heritage. Under the State’s Kinship Guardianship

14

Act, family members have a protected interest in raising a child when neither parent is available.

15

NMSA 1978, Section 40-10B-2 (2001). Where the United States’ policy of family separation

16

does not provide a meaningful opportunity for children who are separated from their parents to

17

unite with other members of their family, it is direct contravention of the laws of this state and

18

the policy principles that underlying those laws. Further, because “a kinship guardian possesses

19
the same legal rights and responsibilities of a biological parent,” members of separated children’s
20
21

families should be afforded the opportunity to seek custody of their relatives. State ex rel.

22

Children, Youth & Families Dep’t v. Djamila B., 2015-NMSC-003. To reiterate, any policy or

23

practice of the federal government that would serve to deny or otherwise disrupt any family

24

member’s ability to take custody of their child relative is an affront to the laws of a sovereign

25

state and the views of the people therein.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

62

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

194.

New Mexico’s Children’s Code is structured to promote child safety, recognize

cultural diversity, and to ensure that civil and criminal justice systems are coordinated. NMSA
1978, Section 32A-1-3 (2009). All children are to be provided services sensitive to their cultural

4
5
6

needs. Id.; see also NMSA 1978, Section 32A-18-1 (2009) (requiring cross-cultural training
for all caregivers and service-providers under the children’s code). Families seeking asylum do

7

not face allegations of abuse, neglect, or a crime that allows children to be removed from the

8

custody of their parents under New Mexico law. In New Mexico, the mental and physical

9

wellbeing of children is paramount. NMSA 1978, Section 32A-1-3(A)(2009). Children removed

10

from the home in New Mexico because of a parent’s criminal behavior are afforded due process

11
and representation of counsel in every proceeding other than probation. State v. Doe, 197712
13

NMCA-234, 91 N.M. 232, 572 P.2d 960,cert. denied 91 N.M. 249, 572 P.2d 1257 (1978). See

14

also NMSA 1978, § 32A–1–7. State ex rel. Children, Youth & Families Dept. v. Lilli L., 1996-

15

NMCA-014, ¶ 14, 121 N.M. 376.“[F]ailure to appoint either counsel or a guardian ad litem to

16

protect the interests of a minor may constitute a denial of due process, thereby invalidating such

17

proceedings.”

18

195.

The State of New Jersey has a longstanding public policy confirming the

19
importance of family integrity and the primacy of the parent-child relationship. New Jersey law
20
21

declares that “the preservation and strengthening of family life is a matter of public concern as

22

being in the interest of the general welfare.” N.J. Stat. Ann. § 30:4C-1(a). It also includes a

23

mandate “to make reasonable efforts … to preserve the family in order to prevent the need for

24

removing the child” from his or her parents, and to return the child safely to his or her parents if

25

possible. N.J. Stat. Ann. § 30:4C-11.1. In determining whether removal of a child is required,

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

63

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

“the health and safety of the child shall be of paramount concern to the court.” N.J. Stat. Ann.
§ 30:4C-11.2. Moreover, any proceeding which may result in even a temporary loss of custody
of a child implicates a parent’s state constitutional right to appointed counsel.

In re

4
5
6

Guardianship of Dotson, 72 N.J. 112, 123 (1976).
196.

New Jersey has also long protected the civil rights and civil liberties of its

7

residents, including by prohibiting discrimination on the basis of race, creed, color, or national

8

origin. See, e.g., N.J. Stat. Ann. § 10:5-12.

9
10

197.

The State of Rhode Island has a longstanding public policy affirming the

importance of family integrity and the primacy of the parent-child relationship. For example,

11
R.I. Gen. Law § 42-72-2 (1979) declares that “the state has a basic obligation to promote,
12
13

safeguard and protect the social well-being and development of the children of the state through

14

a comprehensive program providing for” such items as “the strengthening of the family unit”

15

and “making the home safe for children by enhancing the parental capacity for good child care

16

and services to children and their families to prevent the unnecessary removal of children from

17

their homes”. See R.I. Gen. Laws § 42-72-2 (1979).

18

198.

Rhode Island has declared that practices that discriminate against any of its

19
persons within the state on the basis of race, color, religion, sex, disability, age, or country of
20
21

ancestral origin are matters of public concern that threaten the rights and proper privileges of the

22

State and harm the public welfare, health, and peace of the people. See. R.I. Gen. Laws § 42-

23

112-1 (1990).

24
25

199.

The State of Vermont has a fundamental, sovereign interest in the welfare of

children and families. Vermont has the authority and obligation to intervene where children are

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

64

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

“without proper parental care or subsistence, education, medical, or other care necessary for
[their] well-being.” 33 V.S.A. § 5102(3)(B). That duty includes bearing “such expenses for the
proper care, maintenance, and education of a child, including the expenses of medical, surgical,

4
5
6

or psychiatric examination or treatment” as deemed necessary in connection with juvenile care
proceedings. 33 V.S.A. § 5116(a). Vermont authorities owe a corollary duty “to preserve the

7

family and to separate a child from his or her parents only when necessary to protect the child

8

from serious harm or in the interests of public safety.” 33 V.S.A. § 5101(a)(3).

9
10

200.

Where children require foster care, Vermont strives to ensure their placement in

a healthy, loving environment through strict licensing requirements. See 33 V.S.A. § 4905; Vt.

11
Admin. Code § 12-3-501. The Vermont Department of Children and Families closely regulates
12
13
14
15

not only the child’s physical environment but also the individuals who may be entrusted to care
for the child. See Vt. Admin. Code §§ 12-3-501:20; 12-3-501:40.
201.

Vermont has long protected its residents from discrimination on the basis of race,

16

color, and national origin — irrespective of their citizenship status. See, e.g., 9 V.S.A. §§ 4502-

17

4503 (public accommodations and housing); 21 V.S.A § 495 (employment); and 13 V.S.A. §

18

1455 (bias-motivated crimes).

Vermont continues to reaffirm this commitment through

19
legislation. See, e.g., Vermont Act. 5 (S. 79) (March 28, 2017) (“In Vermont, we celebrate the
20
21

rich cultural heritage and diversity of our residents. . . . All Vermont residents should be free

22

from discrimination on the basis of their sex, sexual orientation, gender identity, marital status,

23

race, color, religion, national origin, immigration status, age, or disability.”).

24
25

202.

The State of Minnesota’s public policy also affirms the importance of family

integrity. For example, Minnesota Statutes section 252.32 declares that it is the State’s policy

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

65

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

“that all children are entitled to live in families that offer safe, nurturing, permanent relationships,
and that public services be directed toward preventing the unnecessary separation of children
from their families.” Minn. Stat. § 252.32, subd. 1. In addition, Minnesota Statutes section

4
5
6
7

260C.001 recognizes the importance of “preserv[ing] and strengthen[ing] the child’s family ties
whenever possible and in the child’s best interests . . . .” Minn. Stat. § 260C.001, subd. 1(b)(3).
203.

Minnesota has also declared that the State’s public policy is that persons be free

8

from discrimination in employment, housing and real property, public accommodations, public

9

services, and education on the basis of, among other things, race, color, creed, or national origin.

10

Minn. Stat. § 363A.02, subd. 1(a). “Such discrimination threatens the rights and privileges of

11
the inhabitants of this state and menaces the institutions and foundations of democracy.” Id.
12
13
14

subd. 1(b).
204.

The State of Iowa has a longstanding policy that favors the protection of the

15

family unit. The State of Iowa only separates parents and children in the most exceptional of

16

circumstances because when we do so we “inflict[] a unique deprivation of a constitutionally

17

protected liberty interest[.]”In re M.S., 889 N.W.2d 675, 677-78 (Iowa Ct. App. 2016). “An

18

innocent man can be set free. The landowner can be justly compensated. The childless parent

19
has no recourse.” Id. To that end, Iowa’s child welfare system strives to ensure that every child
20
21

receives the care, guidance, and control she needs in her own home, with her own parents,

22

whenever possible. Iowa Code § 232.1. “[T]he custody, care, and nurture of the child reside

23

first in the parents” and it is presumed to be in a child’s best interest to remain in parental custody.

24

In re M.S., 889 N.W.2d 675, 677-78 (Iowa Ct. App. 2016); In re N.M., 528 N.W.2d 94, 96 (Iowa

25

1995). Under Iowa law, a family cannot be broken up simply upon proof that a parent has

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

66

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

“engaged in immoral or illegal conduct[.]” In re M.S., 889 N.W.2d 675, 677-78 (Iowa Ct. App.
2016). “Indeed, due process would be violated if the State ‘attempt[ed] to force the breakup of
a natural family, over the objections of the parents and their children, without some showing of

4
5
6
7
8
9
10

unfitness’” as a parent. Id.
205.

The State of Iowa prohibits discrimination based on race, creed, color, national

origin, or religion. See Iowa Code chapter 216.
206.

The State of Illinois has a longstanding policy recognizing the importance of

maintaining the family relationship.
207.

The Illinois Juvenile Court Act of 1987, for example, declares that the State

11
should “secure for each minor subject hereto such care and guidance, preferably in his or her
12
13

own home, as will serve the safety and moral, emotional, mental, and physical welfare of the

14

minor and the best interests of the community; [and] preserve and strengthen the minor’s family

15

ties whenever possible, removing him or her from the custody of his or her parents only when

16

his or her safety or welfare or the protection of the public cannot be adequately safeguarded

17

without removal.” 705 ILCS 405/1-2.

18

208.

The Illinois Abused and Neglected Child Reporting Act likewise instructs the

19
Department of Children and Family Services to “protect the health, safety, and best interests of
20
21

the child in all situations in which the child is vulnerable to child abuse or neglect, offer

22

protective services in order to prevent any further harm to the child and to other children in the

23

same environment or family, stabilize the home environment, and preserve family life whenever

24

possible.” 325 ILCS 5/2(a).

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

67

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

209.

In addition, the State of Illinois has a longstanding policy affirming the

importance of assisting the state’s immigrant population.
210.

The Illinois Attorney General Act declares that “[i]t is imperative that State

4
5
6

government is aware of the needs of the State’s immigrant community and sensitive to the
barriers that may prevent them from seeking and obtaining services.” 15 ILCS 205/6.6(a). The

7

Act further directs the Office of the Illinois Attorney General to “assist immigrants by increasing

8

accessibility to the Office and providing outreach services to the community, which will serve

9

to educate immigrants as to their rights and responsibilities as residents of the State.” Id.

10

211.

New York State has a strong interest in family unity. It is the long-established

11
policy and practice of the State to prioritize keeping a child with his or her parent or parents.
12
13

OCFS operates under the principal that families staying together is the most desired outcome for

14

children. Children are some of the most vulnerable residents in New York State and they best

15

develop their unique potential in a caring and healthy family environment with their birth parents

16

or other relatives. The State’s first obligation is to help the family with services to prevent its

17

break-up, or to quickly reunite the family if the child has already been separated from his parents.

18

That is because the child’s need for a normal family life will usually best be met with his or her

19
birth parent, and parents are entitled to bring up their own children unless the best interests of
20
21
22

the child would thereby be endangered. N.Y. Soc. Serv. Law § 384-b(1); N.Y. Exec. Law § 990.
212.

New York State has a strong interest in promulgating and operating under non-

23

discriminatory policies. In fact, the legislature has declared that non-discrimination is a guiding

24

principal of policy in New York State. New York’s legislature has found that “the state has the

25

responsibility to act to assure that every individual within this state is afforded an equal

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

68

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

opportunity to enjoy a full and productive life and that the failure to provide such equal
opportunity, whether because of discrimination, prejudice, intolerance or inadequate education,
training, housing or health care not only threatens the rights and proper privileges of its

4
5
6

inhabitants but menaces the institutions and foundation of a free democratic state and threatens
the peace, order, health, safety and general welfare of the state and its inhabitants.” N.Y. Exec.

7

Law § 290. Thus, it is unlawful to discriminate against any person in New York State on the

8

basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability,

9

predisposing genetic characteristics, familial status, marital status, domestic violence victim

10

status, gender identity, transgender status, and gender dysphoria. N.Y. Exec. Law § 296; 9 N.Y.

11
Comp. Codes R. & Regs. Tit. 9 § 466.13(c)(2)-(3).
12
13

213.

This principal of non-discrimination is also applied at the agency level. For

14

example, OCFS promulgates regulatory standards that expressly prohibit discrimination or

15

harassment of adults or children involved in child welfare programs and services based on race,

16

creed, color, national origin, age, sex, religion, sexual orientation, gender identity or expression,

17

marital status or disability. N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 421.6, 423.4, 441.24

18

214.

The State of Maryland has longstanding policies affirming the importance of

19
family integrity and of protecting the wellbeing of children to the greatest extent
20
21

possible. Maryland’s Legislature has declared that “it is the policy of this State to promote

22

family stability, [and] to preserve family unity[.]” Md. Code Ann., Fam. Law § 4-

23

401(1). Maryland’s statute governing custody proceedings for children in need of assistance is

24

intended to “conserve and strengthen the child’s family ties and to separate a child from the

25

child’s parents only when necessary for the child’s welfare,” and to “provide for the care,

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

69

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

protection, safety, and mental and physical development of” children. Md. Code Ann., Cts. &
Jud. Proc. § 3-802(a)(3), (1). And under state law, various social programs must be administered
to “preserve family unity” or “preserv[e] family integrity.” Md. Code Ann., Health-Gen. § 7-

4
5
6

702(b); Code of Md. Regs. 07.02.01.01; Code of Md. Regs. 11.02.13.01.
215.

Maryland also has a public policy prohibiting discrimination against any of its

7

inhabitants because of their race, age, color, creed, or national origin, and has enacted anti-

8

discrimination laws in a wide array of contexts, ranging from public accommodations, see Md.

9

Code Ann., State Gov’t §§ 20-304, to employment, id. § 20-602, to residential housing, id. § 20-

10

702. Maryland law also prohibits any person from retaliating against any person because he or

11
she has exercised or enjoyed the rights granted or protected by Maryland’s anti-discrimination
12
13
14

laws, id. § 20-708(2).
216.

It is the policy of the State of Maryland, “in the exercise of its police power for

15

the protection of the public safety, public health, and general welfare, for the maintenance of

16

business and good government, and for the promotion of the State’s trade, commerce, and

17

manufacturers,” to “assure all people equal opportunity in receiving employment” regardless of

18

race, color, religion, age, ancestry, or national origin. Md. Code Ann., State Gov’t § 20-602.

19
217.

The Commonwealth of Pennsylvania has a longstanding public policy

20
21

recognizing the significance of family integrity and the parent-child relationship. For example,

22

Pennsylvania law declares that “[t]he family is the basic institution in society in which our

23

children’s sense of self-esteem and positive self-image are developed and nurtured” and that

24

“[t]hese feelings and values are essential to a healthy, productive and independent life during

25

adulthood.” 62 P.S. § 2172(a)(1). Similarly, Pennsylvania’s Domestic Relations Act states that

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

70

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

“[t]he family is the basic unit in society and the protection and preservation of the family is of
paramount public concern.” 23 Pa.C.S. § 3102(a).
218.

Pennsylvania law further recognizes that children who are separated from their

4
5
6

parents are deprived “of the unique bond which exists in the parent-child relationship, leaving
emotional scars on such children which may never fully heal” because “children are better off

7

emotionally when their needs can be met by their biological parents.” 62 P.S. § 2172(a). This

8

reality is recognized throughout Pennsylvania law. For instance, the Commonwealth’s Juvenile

9

Act seeks to “preserve the unity of the family whenever possible” and to separate “the child

10

from parents only when necessary for his welfare, safety or health or in the interests of public

11
safety.” 42 Pa.C.S. § 6301(b).
12
13

219.

To separate a child from her family is among the most intrusive acts that the

14

government can initiate. North Carolina has long committed itself to separating families only as

15

a last resort, and only after exhausting other options, and taking all appropriate measures to

16

ensure the safety of children. In North Carolina, protection of the family unit is guaranteed not

17

only by the U.S. Constitution but also by North Carolina law. Adams v. Tessner, 354 N.C. 57,

18

60 (N.C. 2001). As a result, taking a child away from its parent requires “a showing that the

19
parent is unfit to have custody.” Id. at 62.
20
21

220.

Parents of children in North Carolina have due process rights that require

22

“reasonable efforts [to be] made to prevent or eliminate the need for removal of the child” from

23

her parents, but only to allow removal when “necessary to protect the safety and health of the

24

child.” In re Dula, 143 N.C. App. 16, 17 (N.C. Ct. App. 2001). A parent’s “right to retain

25

custody of their child and to determine the care and supervision suitable for their child is a

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

71

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

fundamental liberty interest which warrants due process protection.” In re Montgomery, 311
N.C. 101, 106 (N.C. 1984).
221.

The people of North Carolina, in their Declaration of Rights, have stated that

4
5
6

“[n]o person . . . shall be subjected to discrimination by the State because of race, color, religion,
or national origin.” N.C. Const. Art. I, § 19. The State of North Carolina reiterates this

7

commitment in numerous statutes that make it unlawful to discriminate on the basis of, inter

8

alia, race, color, religion, or national origin. See, e.g., N.C. Gen. Stat. §§ 75B-2, 41A-4, 95-151,

9

126-16, 143-422.2.

10

222.

In the State of Delaware, “parents have the primary responsibility for meeting

11
the needs of their children and the State has an obligation to help them discharge this
12
13

responsibility . . .” 29 Del. C. § 9001. Delaware law explicitly declares that “the State has a

14

basic obligation to promote family stability and preserve the family as a unit….” Id. Delaware

15

law also recognizes that preservation of the family as a unit is “fundamental to the maintenance

16

of a stable, democratic society.” 10 Del. C. § 902(a). To that end, the state has directed its

17

courts, when possible consistent with the safety of family members, to ensure that homes

18

“remain unbroken.” Id. The express statutory child welfare policy of the State is to “serve to

19
advance the interests and secure the safety of the child, while preserving the family unit
20
21
22

whenever the safety of the child is not jeopardized.” 16 Del. C. § 901.
223.

The State of Delaware has comprehensively prohibited discrimination based on

23

race and national origin in its laws, including the areas of public accommodations (6 Del. C. §

24

4501, housing (6 Del. C. § 4601), and employment (19 Del. C. § 711). While children forcibly

25

separated from their parents pursuant to the Trump Administration’s policy are not presently

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

72

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

located within any facility within the State of Delaware, a business entity that has facilitated such
placements has a business location within the State of Delaware. Upon information and belief,
this entity has assisted in placing children forcibly separated from their parents in other co-

4
5
6

plaintiff States. Should separated children ultimately be placed within Delaware, its education
and child welfare systems may be saddled with unanticipated fiscal and operational burdens due

7

to the need to provide care for children who have been psychologically traumatized by

8

involuntary separation from their parents. In order to ensure a complete injunction, to eliminate

9

the chilling effect on the exercise of the fundamental rights of documented and undocumented

10

immigrants presently residing in the State of Delaware, to protect the sovereignty of the State of

11
Delaware by protecting its obligation to assist parents in meeting the needs of children, and to
12
13
14
15

maintain the appropriate licensure and supervision of childcare facilities within the State,
Delaware joins this action.
224.

The District of Columbia is uniquely situated among the Plaintiff States, as it

16

has no sovereign interest to claim as against the Federal Government. See Const. art. I, § 8, cl.

17

17; N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 (1982); District of

18

Columbia ex rel. Am. Combustion, Inc. v. Transamerica Ins. Co., 797 F.2d 1041, 1046 (D.C.

19
Cir. 1986) (Congress acts “as sovereign of the District of Columbia”). Rather, the District asserts
20
21

its quasi-sovereign interests and its authority to enforce its laws and uphold the public interest

22

under its Attorney General Act, which was intended to incorporate the common law authority of

23

states’ attorneys general. D.C. Code. § 1-301.81. See also Alfred L. Snapp & Son, Inc. v. Puerto

24

Rico ex rel. Barez, 458 U.S. 592, 608 n.15 (1982) (recognizing that Puerto Rico “has a claim to

25

represent its quasi-sovereign interests in federal court at least as strong as that of any State”).

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

73

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

K.

Defendants’ Policy Harms the States’ Proprietary Interests
225.

The Policy also harms the States’ proprietary interests. ORR places thousands of

unaccompanied minors with sponsors (adults who can care for the child during the pendency of

4
5
6

immigration proceedings) in the States every year. In FY 2016, ORR placed 52,147 individual
children in such placements nationwide. In FY 2017, there were 42,497 placements, and so far

7

there have been almost 20,000 in FY 2018 (October-April). See Unaccompanied Alien Children

8

Released

9

https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-released-to-sponsors-by-

10

to

Sponsors

by

State

(June

30,

2017)

available

at

state, attached hereto as Ex 88. These ORR data are inclusive of children who were separated

11
as a result of the Policy.
12
13

226.

The States are receiving and will continue to receive an increasing number of

14

separated immigrant parents and children if Defendants are allowed to continue implementing

15

their Policy. The federal government’s separation of these families and transfer of separated

16

persons into the States places increased burdens on state resources, particularly because of the

17

acute trauma that children and parents have experienced due to Defendants’ unlawful policy.

18

Children who have been separated from their parents and are awaiting immigration proceedings

19
(for example the adjudication of an asylum application or adjustment of status) are entitled to
20
21

access a variety of state-funded programs. Providing the necessary services to address the legal,

22

educational, physical, and psychological needs of parents and children who have been separated

23

will burden the state systems. The following are non-exclusive examples of state systems that

24

are impacted.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

74

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

227.

Courts. Many of the sponsors of these children will need to obtain guardianship

through the States’ juvenile and family courts. This is not discretionary: ORR’s agreement with
sponsors requires “best efforts” to establish such guardianships, and sponsors in many states

4
5
6

would be unable to access medical and educational records and make important decisions for the
children in their care without such court-ordered guardianships. See Sponsor Care Agreement

7

available

8

https://www.acf.hhs.gov/sites/default/files/orr/frp_4_sponsor_care_agreement_05_14_18.pdf,

9

and attached hereto as Ex. 89.

10

228.

at

Children who have been separated from their parents will also access the State

11
courts to obtain orders necessary for their immigration proceedings. For example, some such
12
13

children are eligible for Special Immigrant Juvenile Status (SIJS), pursuant to federal law. See

14

Immigration and Nationality Act (INA) §203(b)(4); INA §101(a)(27)(j); Trafficking Victims

15

Protection Reauthorization Act of 2008 (TVPRA), P.L. 110-457 §235. In these proceedings, the

16

federal immigration system relies on the expertise of state courts in making determinations

17

regarding a child’s welfare, requiring SIJS-eligible children to seek SIJS predicate findings from

18

a state’s juvenile court.

19
229.

Education. Public elementary and secondary schools have a constitutional

20
21

obligation to educate students irrespective of immigration status. See Plyler v. Doe, 457 U.S.

22

202 (1982), and various statutory obligations to provide particularized services to high needs

23

students, such as through the Individuals with Disabilities Education Act (IDEA). Children

24

separated from their parents and placed with sponsors will attend the States’ public schools and

25

receive a variety of educational services, including special education, ESL programs, mental

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

75

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

health services, and other programs delivered within the school district. Such programs are
funded in large part through local levy funds and state dollars. Indeed, state funding for general
education delivered in public schools is calculated in part on a per-student basis.

4
5
6

230.

The trauma of forcible separation from a parent renders public schooling more

difficult and expensive for the States to provide. Research shows that the experience of trauma

7

may severely undercut a child’s ability to learn and function in the classroom. See Helping

8

Traumatized

9

content/uploads/2013/06/Helping-Traumatized-Children-Learn.pdf, attached hereto as Ex. 90.

10

Children

Learn,

available

at

https://traumasensitiveschools.org/wp-

Children may require additional mental health services through school guidance counselors and

11
social workers; they may have behavioral problems and trauma-related learning disabilities that
12
13

would need to be addressed; and they lack the critically important educational advocacy and

14

partnership that parents can provide. Students without parents to care for them are also more

15

likely to arrive at school with housing and food insecurity and require additional attention and

16

resources to address hunger, exhaustion, and increased levels of stress and anxiety.

17
18

231.

Healthcare. Such children are also often eligible for State-funded healthcare

programs, including mental health care treatment. Health care costs will be exacerbated for the

19
states because of the Policy, as children who suffer prolonged and unexpected separation from
20
21

their parents experience particular health effects, including higher levels of anxiety, more

22

susceptibility to physical and emotional illness, and decreased capacity to manage their

23

emotions. These health effects may result in higher levels of care and increase costs to the state.

24

See Burke and Mendoa, At Least 3 tender age shelters set up for child migrants, the AP (June

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

76

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

20, 2018) available at https://apnews.com/dc0c9a5134d14862ba7c7ad9a811160e, attached
hereto as Ex. 91.
232.

Other programs.

Many States also have programs that provide services

4
5
6
7

specifically directed at helping immigrants and refugees, as well as programs designed to address
the consequences of trauma. Some have limited available group care facilities that they stand to
lose to ORR placements because of the increase in separated families.

8

233.

The plaintiff States are already experiencing some of these proprietary harms.

9

234.

Washington. For example, ORR places hundreds of unaccompanied minors with

10

sponsors in the state of Washington every year. For FY 2017, the last year for which complete

11
data are available, ORR placed almost 500 children with Washington resident sponsors. As of
12
13

April 30, 2018, ORR’s available data show that Washington has already received 278

14

unaccompanied

15

https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-released-to-sponsors-by-

16

state. See Ex. 88.

17
18

235.

children

during

this

fiscal

year.

See

Washington has almost 300 public school districts and serves well over a million

children. Per pupil expenditures for 2016-17, for example, were more than $11,800 per

19
child. Of this total, slightly more than 90% of school funding came from state and local
20
21

resources.

See

Statewide

Average

Financial

Tables

and

Charts

available

at

22

http://k12.wa.us/safs/PUB/FIN/1617/1617Section1Full.pdf, attached hereto as Ex. 92. For the

23

2017-19 biennium, state spending for basic education will total over $22 billion, with over $16

24

billion allocated to basic general education services.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

77

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

236.

Washington State children residing in households with an income less than 312

percent of the federal poverty level are eligible for the Apple Health program, regardless of
citizenship and/or documented status. Qualifying children receive access to the full scope of

4
5
6

health care coverage including medical, dental, behavioral health, vison, hearing and
pharmaceutical benefits. Of the $7.3 billion that Washington state spent in state fiscal year 2017

7

to support the entire Apple Health program, the cost to cover minor children was $1.6 billion. In

8

state fiscal year 2017, the cost to cover undocumented immigrant children was $31 million. The

9

average cost per undocumented child in state fiscal year 2017 was $1,552 per year.

10

237.

Washington’s Office of Refugee and Immigrant Assistance (ORIA) is part of the

11
State of Washington, Department of Social and Health Services (DSHS). ORIA coordinates and
12
13

facilitates the provision of services for people who are refugees and immigrants to enable them to

14

achieve economic stability and integrate into Washington communities. To do this, ORIA braids

15

federal funding from the ORR with other federal and state dollars, for a total annual budget of

16

$27,925,874. This funding provides services to more than 10,000 refugees and immigrants each

17

year through contracts with more than 60 different organizations across the state to offer 11 distinct

18

programs and services. National immigration policies affect the state’s access to federal funding.

19
For example, around August of 2014, the nation experienced an influx of unaccompanied
20
21

immigrant children being apprehended by immigration officials, and ORR reduced

22

Washington’s federal funding to provide refugee social services to cover an increase in costs at

23

the national level.

24
25

238.

Massachusetts. Since 2014, ORR has placed 3,803 unaccompanied children

with sponsors in Massachusetts. See Ex. 88. These numbers are particularly high in part because

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

78

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

of Massachusetts’ large population of residents from which UACs most often come (Honduras,
Guatemala, and El Salvador, in particular). See Office of Refugee Resettlement Facts & Data,
available at https://www.acf.hhs.gov/orr/about/ucs/facts-and-data, attached hereto as Ex. 93. For

4
5
6

example, Massachusetts has the eighth largest Salvadoran population in the country. See Profiles
of Boston’s Latinos available at http://www.bostonplans.org/getattachment/e0019487-138b-

7

4c73-8fe5-fbbd849a7fba, attached hereto as Ex. 94. These residents are more likely than the

8

general population to become sponsors of UACs because sponsors are often family members.

9
10

239.

A non-profit foster care agency in Massachusetts, which is licensed by the

Massachusetts Department of Early Education and Care, also provides long term foster care

11
services to UACs in Massachusetts foster homes. See Office of Refugee Resettlement Division
12
13

of Children Services Legal Resource Guide – Legal Service Provider List for UAC in ORR Case,

14

available

15

https://www.acf.hhs.gov/sites/default/files/orr/legal_service_provider_list_for_uac_in_orr_care

16

_english_092016.pdf, attached hereto as Ex. 95.

17
18

240.

at

In Massachusetts, all children regardless of immigration status are entitled to a

free public education. On average, per pupil expenditures amount to more than $16,000. See

19
Massachusetts Department of Elementary and Secondary Education School Finance Statistical
20
21

Comparisons

FY13-FY17

Per

Pupil

Expenditures

All

Funds,

available

at

22

http://www.doe.mass.edu/finance/statistics/ppx13-17.html, attached hereto as Ex. 96. Of this

23

total, over 95 percent comes from state and local funding resources, with 39 percent from the

24

state alone. See https://www.census.gov/data/tables/2016/econ/school-finances/secondary-

25

education-finance.html.

In Massachusetts’ Gateway Cities, where a higher population of

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

79

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

immigrants live, state funding amounts to an even higher percent of total per pupil spending.
See http://www.doe.mass.edu/finance/chapter70/chapter-17.html. For Fiscal Year 2017, state
spending

on

education

programs

totaled

more

than

$7

billion.

See

4
5
6

http://massbudget.org/browser/index.php.
241.

All undocumented children in Massachusetts are eligible for state-funded health

7

insurance through the Children’s Medical Security Plan, MassHealth Limited, or the Health

8

Safety Net. Immigrant children with SIJS and other statuses may be eligible for more robust

9

state-funded health insurance. See Understanding the Affordable Care Act: Non-Citizens’

10

Eligibility for Mass Health & Other Subsidized Health Benefits (March 2018) available at

11
https://www.masslegalservices.org/system/files/library/Understanding%20eligibility%20of%2
12
13
14

0non-citizens_0.pdf, attached hereto as Ex. 97.
242.

Children separated from their parents pursuant to the Policy will require

15

determinations from the Massachusetts Probate and Family Court or Juvenile Court for purposes

16

of SIJS, see Recinos v. Escobar, 473 Mass. 734 (2016), and determinations about guardianship

17

in the best interests of children. Mass. Gen. Laws c. 190B, § 5-206.

18

243.

Undocumented children and other immigrant children who are not eligible for

19
mental health services through state-funded health insurance programs may qualify for mental
20
21

health services through the state’s Department of Mental Health (“DMH”). Under its statutory

22

mandate, DMH provides or arranges for the provision of services to residents who meet certain

23

clinical criteria. Mass. Gen. Laws c. 19 § 1. For Massachusetts youth to meet DMH’s clinical

24

criteria, they must have a “serious emotional disturbance…that has lasted or is expected to last

25

at least one year [and] has resulted in functional impairment that substantially interferes with or

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

80

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

limits the child's [or] adolescent’s role or functioning in family, school or community
activities….”. 104 CMR 20.04(2)(b). Many if not all children separated from their parents under
the Policy may suffer from such disturbances.

4
5
6

244.

Oregon. Defendants’ Policy also harms Oregon’s proprietary interests, because

it forces Oregon to expend resources and incur costs that would otherwise not be required. For

7

example, unaccompanied minors detained in Oregon have often suffered severe trauma in their

8

home countries. Children separated from their parents under this Policy have suffered additional

9

trauma from Defendants’ actions. Counsel for these minors can and do file petitions with the

10

juvenile court departments of the Oregon Circuit Courts on their behalf to obtain Special

11
Immigrant Juvenile status. This allows the court to transfer custody to the Oregon Department
12
13

of Human Services, where they can be placed in foster care and receive other necessary services,

14

such as healthcare, education, and other support. This process employs the financial and other

15

resources of the state of Oregon.

16
17
18

245.

Children in Oregon, including those separated from parents, are entitled to a

public education. The cost of that education as of 2016-17 was $11,715 per student, with 92%
from state and local resources.

19
246.

Children in Oregon, including those separated from parents, may be eligible for

20
21

health care funded in part by the state of Oregon. Children separated from parents who may

22

become wards of the state due to forced separation would become eligible for state-funded

23

healthcare at a cost of approximately $664 per-member per-month. Federal reimbursement is

24

not available for healthcare recipients in this population due to their immigration status. Some

25

children may not become wards of the state and would not have access to any state-funded

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

81

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

healthcare. The average cost of hospitalization for a child in Oregon is $9,370. Oregon bears
the entire cost of providing healthcare and/or emergency-related care to children separated from
their families.

4
5
6

247.

California. ORR places more unaccompanied minors with resident sponsors in

California than any other State in the country. For FY 2017, ORR placed 6,268 children with

7

California resident sponsors. As of April 30, 2018, California has already received 2,807

8

unaccompanied children during this fiscal year. See Ex. 88.

9
10

248.

In California, any child, including children who have been separated from their

parents, is entitled to a free public education. Per pupil expenditures in 2017-18 exceeded

11
$14,000 per child from all fund sources. Of this total, over 91% came from state and local
12
13
14
15

resources.

California has also dedicated educational funds to meeting the needs of

unaccompanied immigrant children.
249.

In California, undocumented children receive healthcare coverage paid for

16

entirely by the State. See Cal. Welf. & Inst. Code § 14007.8. These children are also eligible

17

for and benefit from other state funded public health programs.

18

250.

Children separated from their parents because of the Policy may require

19
determinations by California courts in order to obtain a guardianship or a predicate order
20
21
22
23
24
25

enabling the child to apply for Special Immigrant Juvenile Status. See Cal. Prob. Code § 1514;
Cal. Civ. Proc. Code § 155.
251.

The federal government has already placed a number of children separated from

their parents pursuant to the Policy at nonprofit facilities in California, including facilities that
also serve children in the State child welfare system. In California, both state and county

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

82

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

personnel license and approve homes and facilities for the placement of vulnerable children.
Community Care Licensing (CCL) is the division within the California Department of Social
Services that has regulatory oversight of the residential facilities for children in California, and

4
5
6

is responsible for the health, safety, and welfare of children in out-of-home care facilities,
including those facilities who have contacts with ORR to house unaccompanied immigrant

7

children in California. In its role, CCL has three main functions: prevention, compliance, and

8

enforcement.

9
10

252.

California’s Refugee Programs Bureau is part of the Immigration and Refugee

Programs Branch of the California Department of Social Services (CDSS). This Bureau

11
provides assistance to newly arrived refugees to support long term social and economic
12
13

integration. In FY 2017, at least 12,058 refugees arrived in the state of California, and received

14

assistance from the State in the form of nutrition aid, cash assistance, employment services,

15

immigration legal services, medical services, and educational support. The Bureau administers

16

the Unaccompanied Refugee Minors (URM) Program, the Refugee School Impact Grant (RSIG),

17

and the California Newcomer Education and Well-Being (CalNEW), three programs exclusively

18

for minors. The URM provides foster care, case management, mental health, and medical

19
services to certain unaccompanied minors. Through RSIG and CalNEW, the RPB funds
20
21

programs in schools to provide supplementary educational and social adjustment support

22

services including academic, English-language acquisition, and mental and well-being supports.

23

The CalNEW is funded exclusively by the State. Combined, these programs help ensure that

24

immigrants coming to California are prepared to be full participants in California society and

25

culture, and that they are able to thrive in their new surroundings.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

83

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

253.

California’s Immigration Services Unit is also a part of the Immigration and

Refugee Programs Branch of the CDSS. The California Legislature has authorized this program
to provide assistance to “persons residing in, or formerly residing in, California," including

4
5
6

“[s]ervices to obtain . . . immigration remedies." Cal. Welf. & Inst. Code § 13303(b)(1)(B). The
program awards funding to California-based legal services organizations to assist in the

7

representation of undocumented immigrants in their immigration proceedings, including

8

targeted funding for unaccompanied undocumented minors present in California after release

9

from the care and custody of ORR pursuant to Cal. Welf. & Inst. Code § 13300. The State has

10

invested $12,000,000 in services for unaccompanied minors since State FY 2014-2015. Legal

11
services providers have provided representation to 2,147 minors.
12
13

254.

New Jersey. ORR released a total of 2,268 Unaccompanied Children (UAC) to

14

sponsors in New Jersey in FY 2017 (October 2016 – September 2017), and an additional 1,053

15

between

16

https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-released-to-sponsors-by-

17

state. This is more than any other state except Virginia, Texas, New York, Maryland, Florida

18

October

2017

and

April

2018.

See

and California.

19
255.

Rhode Island. In Rhode Island, all children regardless of immigration status are

20
21

entitled to free public education. Rhode Island has over 300 public schools that serve over

22

142,000 children. Per-pupil expenditures for 2013-14 were more than $15,000 per child. The

23

majority of these funds come from state and local funding resources. As forcible separation from

24

a parent renders public schooling more difficult and expensive for Rhode Island, Rhode Island

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

84

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

will experience harm. See InfoWorks! Rhode Island Education Data Reporting, Rhode Island
Public Schools, available at http://infoworks.ride.ri.gov/state/ri.

3

256.

Vermont. In Vermont, all children, regardless of immigration status, are entitled

4
5
6

to a free public education. On average, Vermont spends over $18,000 per pupil each year. See
Vermont Agency of Education, Per Pupil Spending: FY 2017 Report (2018), available at

7

http://education.vermont.gov/documents/data-per-pupil-spending-fy2017, attached hereto as

8

Ex. 98.

9
10

257.

Many immigrant children are also eligible to receive free or low-cost health care

through Vermont’s children’s health insurance program, known as Dr. Dynasaur. See generally

11
Vt. Health Benefits Eligibility and Enrollment Rules §§ 2.03(b), 7.02(b), 7.03(a)(3), 17.02,
12
13

17.03, available at http://humanservices.vermont.gov/on-line-rules/hbee/hbee-all-parts-1-8-

14

adopted-with-toc.pdf. The program includes mental health services, which may face increased

15

demand in cases of family separation.

16
17
18

258.

Since 2014, ORR has placed four unaccompanied minors in Vermont. See Ex.

88. However, the Policy has seen increasingly large numbers of children scattered across the
nation, often in conditions of secrecy. See Exs. 23 & 25.

19
259.

Vermont’s responsibility to protect the welfare of all children living in the State

20
21

includes those children who are separated from their parents and moved to Vermont pursuant to

22

the Policy. That responsibility includes, when appropriate, commencing juvenile judicial

23

proceedings and incurring significant costs to ensure that children are receiving safe and

24

adequate care. See generally 33 V.S.A. §§ 5102, 5103, and 5116.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

85

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

260.

The Policy’s negative impact upon immigrants also threatens Vermont’s

economic interests. For example, in 2014, immigrant households paid $57.9 million in state and
local taxes. Of that amount, undocumented immigrants paid an estimated $2.9 million in state

4
5
6

and local taxes that year. Immigrants also greatly contributed to the economy with over $462.5
million in spending power.

See The Contributions of New Americans in Vermont, New

7

American Economy (2016), available at https://research.newamericaneconomy.org/report/the-

8

contributions-of-new-americans-in-vermont/, attached hereto as Ex. 99.

9

Immigrants’ State & Local Tax Contributions, Institute of Tax and Public Policy (2017),

10

Undocumented

available at https://itep.org/undocumented-immigrants-state-local-tax-contributions-2/, attached

11
hereto as Ex. 100.
12
13

261.

Minnesota. For FY 2017, the last year for which complete data are available,

14

ORR placed over 300 children with Minnesota resident sponsors. As of April 30, 2018, ORR’s

15

available data show that Minnesota has already received 164 unaccompanied children during

16

this fiscal year. See Ex. 88.

17
18

262.

In Minnesota, any child, including children who have been separated from their

parents, is eligible to a free public education. On average, per pupil expenditures for the current

19
fiscal year is $12,251 per child. Of this total, approximately 96% comes from state and local
20
21

resources. If, as may be expected, an immigrant child requires services through the English

22

Learners program, the state funds an additional $700 or $950 per child. Children in Minnesota

23

may also require special education, mental health services, and other programs delivered within

24

the school district. Unaccompanied children, including those who are separated from their

25

parents, may also receive child care assistance in certain settings.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

86

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

263.

In addition, unaccompanied children residing in Minnesota, including those who

are separated from their parents, are also eligible to receive health care through Minnesota’s
Emergency Medical Assistance program and support through the Women, Infants, and Children

4
5
6

program. They may also receive services through the state’s child protection system.
264.

Unaccompanied children in Minnesota, including those who are separated from

7

their parents, may also be involved in state court proceedings related to the unaccompanied

8

child’s immigration status or the child’s sponsor’s legal authority.

9
10

265.

Iowa. Likewise, since 2014, ORR has placed 980 unaccompanied children with

sponsors in Iowa. See Ex. 93.

11
266.

In Iowa, all children regardless of immigration status are entitled to a free public

12
13

education. On average, per pupil expenditures amounted to nearly $13,000 in federal FY2015.

14

See Revenues and Expenditures for Public Elementary and Secondary Education: School Year

15

2014-15 (Fiscal Year 2015) available at https://nces.ed.gov/pubs2018/2018301.pdf, attached

16

hereto as Ex. 101.

17

coming from the state alone. Id.

18

267.

Of this total, 93% came from state and local funding sources, with 53%

Illinois. Illinois’s commitment to supporting its immigrant communities is also

19
evidenced by certain state expenditures.
20
21

268.

In FY 2018, for example, the Illinois Department of Human Services (DHS) was

22

appropriated approximately $13,779,400 for various refugee and immigration services. These

23

funds came from General Revenue Funds and other state funds. See Pub. Act 100-21, at 15, 450

24

(2017), available at http://ilga.gov/legislation/publicacts/100/PDF/100-0021.pdf, attached

25

hereto as Ex. 102. In FY 2019, DHS, the Illinois Office of the Secretary of State, and the Illinois

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

87

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Department of Public Health were appropriated approximately $37,477,900 for various refugee
and immigration services. See Pub. Act 100-586, at 335, 343–44, 402–03, 433 (2018), available
at http://ilga.gov/legislation/publicacts/100/PDF/100-0586.pdf, attached hereto as Ex. 103.

4
5
6

269.

Services provided by DHS through the Bureau of Refugee and Immigrant

Services include helping newly arrived refugees achieve self-sufficiency in the United States

7

and providing outreach and interpretation services to low-income and limited English-proficient

8

individuals requiring supportive services.” See Refugee & Immigrant Services, ILL. DEP’T OF

9

HUMAN SERVS., available at http://www.dhs.state.il.us/page.aspx?item=30363 (last visited June

10

22, 2018), and attached hereto as Ex. 104.

11
270.

Similarly, within the Illinois Department of Children and Family Services

12
13

(DCFS) exists the Office of the DCFS Guardian. This Guardian serves as the legal parent of

14

every child in the custody of DCFS, “monitor[ing] and mak[ing] critical decisions based on the

15

child’s best interests regarding major medical treatment, … and all other decisions requiring

16

parental consent.” See ILL. DEP’T OF CHILDREN & FAMILY SERVS., BUDGET BRIEFING FY 2019,

17

at 34 (2018), https://www2.illinois.gov/dcfs/aboutus/newsandreports/Documents/FY19_Budget

18

Briefing.pdf, attached hereto as Ex. 105. To that end, the DCFS Guardian, with assistance from

19
the DCFS Special Counsel and the Immigration Services Unit, acquires adjustment of legal
20
21
22

status for foreign-born youth who are under its guardianship. Id.
271.

Children reunited with a family member residing in Illinois will likely be entitled

23

to access certain state-funded programs. This is also true for children currently sheltered outside

24

of Illinois who are later reunited with a family member residing in Illinois.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

88

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

272.

For example, every child residing in Illinois, including children who have been

separated from their parents, is entitled to a free public education. In school year 2015–16,
Illinois per-pupil expenditures exceed $12,900 per child. Of this total, over 92% comes from

4
5
6
7

state and local resources. See ILL. STATE BD. OF EDUC., ILLINOIS STATE REPORT CARD 3 (2017),
http://webprod.isbe.net/ereportcard/publicsite/getReport.aspx?year=2017&code=2017StateRep
ort_E.pdf, attached hereto as Ex. 106.

8
9
10

273.

Moreover, separated children enrolled in Illinois schools may receive bilingual

support services through Transitional Bilingual Education (TBE) Programs and/or Transitional
Programs of Instruction (TPI). These programs help English Learners achieve academically,

11
and provide classroom and other forms of support.

In FY 2018 and FY 2019, Illinois

12
13

appropriated approximately $65,540,700 and $48,600,000, respectively to support bilingual

14

education programs in Illinois school districts. See Pub. Act 100-21, at 636–37 (Ex. 102); Pub.

15

Act 100-586, at 491 (Ex. 104). Currently, Illinois school districts receive funding on a per-pupil

16

allocation by level of service ranging from $304–758 per pupil. See ILL. STATE BD. OF EDUC.,

17

FISCAL

18

YEAR

2018

PROPOSED

BUDGET

14,

58

(2017),

available

at

https://www.isbe.net/Documents/fy2018-budget-book.pdf, attached hereto as Ex. 107. Children

19
who are reunited with family members located in Illinois who attend Illinois schools are likely
20
21
22

to receive such services as English Learners.
274.

As well, each child who qualifies is entitled to receive free breakfast and lunch

23

pursuant to the Illinois Free Lunch and Breakfast Program, 105 ILCS 125/1. Through this

24

program, the Illinois State Board of Education reimburses all public schools, nonprofit private

25

schools, and residential child care institutions that provided breakfast and lunch to children who

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

89

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

meet the income-level guidelines. In FY 2018 and FY 2019, the Board of Education received
$9,000,000 in state funding to provide reimbursements. See Pub. Act 100-21, at 435, 634–35
(Ex.

102);

See

Pub.

Act.

100-587,

at

39,

450

(2018),

available

at

4
5
6

http://ilga.gov/legislation/publicacts/100/PDF/100-0587.pdf, attached hereto as Ex. 108.
Heartland Alliance is a participant in the Free Lunch and Breakfast Program and receives

7

reimbursement from the State of Illinois for breakfasts and lunches provided to unaccompanied

8

children in Illinois.

9

275.

10

Separated children may also be eligible for healthcare programs that are partially

or fully funded by the State of Illinois, including Medicaid. In FY 2014, for example, Illinois

11
spent an average of approximately $2,108 per Medicaid-eligible child. See Medicaid Spending
12
13

Per

Enrollee

(Full

or

Partial

Benefit),

KAISER

FAMILY

FOUND.,

14

https://www.kff.org/medicaid/state-indicator/medicaid-spending-per-enrollee/ (last visited June

15

22, 2018).

16
17
18

276.

In addition, children who have been separated from their parents may access state

courts in Illinois in order to obtain Special Immigrant Juvenile Status (SIJS). In order to petition
the U.S. Customs and Immigration Services for a SIJS, a child must first obtain an order from a

19
state court finding that it is not in the child’s best interests to return to her home country or to
20
21

the country she last lived in, and that the child cannot be reunited with a parent because of abuse,

22

abandonment, or neglect. As additional children are brought to Illinois as a result of Defendants’

23

child separation policy, Illinois courts will see an increase in the number of orders being sought.

24
25

277.

New York. In FY 2017, ORR placed 3,938 children with New York resident

sponsors. ORR placed another 1,577 UACs with New York resident sponsors from October 2017

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

90

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

through April 30, 2018. See Unaccompanied Alien Children Released to Sponsors by State,
available at Ex. 88.

3

278.

Once a UAC is placed with a sponsor who resides in New York State, the child

4
5
6

is entitled to a variety of services funded by the state, including educational services, early
intervention services, and access to healthcare, among others. New York State makes these

7

services available to such children in support of the State’s interest in ensuring the health, safety,

8

and well-being of all residents.

9
10

279.

New York State will incur expenses to educate UACs placed within the state

because under state law, children ages six through sixteen who reside in New York must attend

11
school and are entitled to attend school up until age twenty-one. Moreover, the IDEA requires
12
13

the state to provide special education services to students with learning or emotional disabilities.

14

Under this federal law, children aged three to twenty-one are entitled to special education

15

services when clinically warranted. 20 U.S.C. § 1411. New York State law also entitles

16

qualified students to English Language Learner (ELL) services. N.Y. Comp. Codes R. & Regs.

17

Tit. 8, § 154. There are 692 public school districts in New York that serve approximately 2.6

18

million students. While costs will vary depending on the school district’s location and the child’s

19
needs, the statewide average to educate a student in New York is approximately $22,000 per
20
21
22

year.
280.

New York State also provides a robust early intervention program which UACs

23

utilize when placed in New York State communities. The Part C Early Intervention Program

24

(EIP) was created by Congress in 1986 as part of the IDEA. The IDEA authorizes the

25

discretionary EIP for infants and toddlers with disabilities and requires states to provide a free

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

91

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

appropriate education for all students with disabilities, ages three to twenty-one. 20 U.S.C. §§
1411, 1419. Each year, New York’s EIP serves over 60,000 children ages zero to three who have
moderate to severe developmental delays. The EIP includes 1,279 providers that contract with

4
5
6

New York State to bill for EI services. Total annual expenditures for New York’s EIP total more
than $644 million across all payers—45% is covered by Medicaid, 2% by commercial insurance,

7

26% by state funds, and 27% by county funds. While EIP costs and services vary based on the

8

child’s needs and the intensity of services offered, for the 2017 program year the average cost of

9

services delivered ranged from $5,820 to $22,000 per child.

10

281.

New York State also incurs significant medical expenses for each UAC placed in

11
state.

UACs who are placed with sponsors in the community are eligible to enroll in the

12
13

Children’s Health Insurance Program (CHIP) operated by New York’s Office of Health

14

Insurance Programs. The yearly cost of CHIP per child is $2,607.36 and is financed exclusively

15

by New York State.

16

282.

17
18

An influx of UACs also carries with it increased costs for the New York State

child welfare system. After a UAC is placed with a sponsor in the community, that placement
may be disrupted for a number of reasons. If the child becomes at risk of entering foster care—

19
for example, because of allegations of abuse or neglect by the person now legally responsible
20
21

for the child—the child welfare system will provide preventive services to attempt to keep the

22

child safely in the new home; such services are funded, in part, by New York State. If those

23

services are unsuccessful and the child must be removed from the new home, New York State

24

will also partly fund the child’s placement and needed services while in the foster system.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

92

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

283.

Maryland. For FY 2017, the last year for which complete data are available,

ORR placed almost 3,000 children with Maryland resident sponsors—the fifth most of any state.
As of April 30, 2018, ORR’s available data show that Maryland has already received 901

4
5
6

unaccompanied children during this fiscal year. See Ex. 88. Maryland is one of the states that is
receiving children separated from their parents under the Trump Administration’s “zero

7

tolerance” policy. See Theresa Vargas, “I will kiss their boo-boos” Foster Families provide

8

small comforts (June 22, 2018), attached hereto as Ex. 109; I really miss my mom: What becomes

9

of a 5-year-old in Maryland and the other separated children now?, The Washington Post (June

10

21, 2018) available at https://www.washingtonpost.com/local/i-really-miss-my-mom-what-

11
becomes-of-a-5-year-old-in-maryland-and-other-the-separated-children12
13

now/2018/06/21/28afbd54-759d-11e8-9780-

14

b1dd6a09b549_story.html?utm_term=.383bb9cc8a01, attached hereto as Ex. 110; “Bethany

15

Continues to Work to Reunify Families Separated at the Border,” available at

16

https://www.bethany.org/campaigns/refugee, attached hereto as Ex. 111.

17
18

284.

The Office of Licensing and Monitoring within Maryland’s Department of

Human Services licenses several organizations that operate shelters at which unaccompanied

19
children—including children separated from their parents under the federal government’s
20
21

policy—are being placed. At least one such organization receiving children in Maryland is under

22

contract with ORR to provide services for unaccompanied immigrant minors, including children

23

separated from their parents under the policy.

24
25

285.

As the separated children are placed in foster homes, many will enter the

Maryland’s public school system. Maryland’s 24 public school districts served nearly 900,000

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

93

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

students during the 2016-17 school year. Per pupil expenditures for 2016-17 were over $13,000
per child. Of this total, approximately 95% of school funding came from state and local
resources. For the 2016-17 school year, state and local spending for basic education totaled over

4
5
6

$12 billion, with nearly $5 billion allocated to general instructional expenditures. See Selected
Financial

Data

Maryland

Public

Schools

2016-2017

7

at

http://marylandpublicschools.org/about/Documents/DBS/SFD/2016-

8

available

2017/SFD20162017Part3.pdf., attached hereto as Ex. 112.

9
10

286.

Virginia. More than one hundred traumatized, unaccompanied alien children

have been transported and are being housed at federal detention centers in Virginia. More than

11
a dozen of those children were separated from their parents at the southern border. See Nick
12
13

Anderson and Marissa J. Lang, Sen. Tim Kaine tours Virginia shelter housing about 15 separated

14

migrant

15

https://www.washingtonpost.com/local/immigration/sen-tim-kaine-tours-virginia-shelter-

16

housing-about-15-separated-migrant-children/2018/06/22/7bc1e8f2-763b-11e8-b4b7-

17

308400242c2e_story.html?utm_term=.5be4b43f307c, attached hereto as Ex. 113.

18

children,

287.

the

Washington

Post

(June

22,

2018)

available

at

ORR reports that they have placed hundreds of unaccompanied alien children

19
with sponsors in the Commonwealth of Virginia every year. For FY 2017, the last year for which
20
21

complete data are available, ORR placed 2,888 children with Virginia resident sponsors. As of

22

April 30, 2018, ORR’s available data show that Virginia has already received 931

23

unaccompanied alien children during this fiscal year. See Ex. 88.

24
25

288.

Under federal law, states and local educational agencies are obligated to provide

all children – regardless of immigration status – with equal access to public education at the

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

94

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

elementary and secondary level. This includes 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

4
5
6

these unaccompanied alien children under 18 will be classified as homeless under applicable
state and federal law. See Va. Code Ann. § 22.1-3. Virginia school divisions are required to

7

immediately enroll homeless students. The Virginia Department of Education provides the state

8

share, and the enrolling local school division is responsible for paying the local share of the cost

9

for educating students enrolled in public schools at a total per pupil statewide average

10

expenditure in excess of $10,000.

11
289.

Unaccompanied alien children may seek a variety of health services in Virginia.

12
13

For example, they need childhood immunizations and may seek testing and treatment when they

14

present with symptoms of a communicable disease. In Virginia, school divisions are required to

15

help any child classified as homeless obtain necessary physical examinations and

16

immunizations. Va. Code § 22.1-271.2. Moreover, if an unaccompanied alien child needed to be

17

hospitalized for emergency care, including psychiatric care, then Virginia would provide and

18

bear the cost of that care in part by absorption of costs by state-owned hospitals.

19
290.

ORR places hundreds of unaccompanied minors with sponsors in the State of

20
21

North Carolina every year. For FY 2017, ORR placed approximately 1,290 children with North

22

Carolina-resident sponsors. As of April 30, 2018, ORR’s available data show that North

23

Carolina has already received 565 unaccompanied children during this fiscal year. See Ex. 88.

24
25

291.

North Carolina. The State of North Carolina has 11 State Refugee and Health

Coordinators that are coordinated and organized through the State’s Department of Health and

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

95

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Human Services Refugee Services program. North Carolina’s Refugee Services program
integrates federal funding from ORR with other federal and state funding. The program services
thousands of refugees across the State of North Carolina.

4
292.

5
6

District of Columbia. ORR places hundreds of unaccompanied minors with

sponsors in the District of Columbia every year. For FY 2017, the last year for which complete

7

data are available, ORR placed almost 300 children with District of Columbia resident sponsors.

8

As of April 30, 2018, ORR’s available data show that the District of Columbia has already

9

received more than 80 unaccompanied children during this fiscal year. See Ex. 88.

10

293.

In the District of Columbia, any child, including children who have been

11
separated from their parents, is entitled to a free public education. The District spends almost
12
13

$10,000 per child in D.C Public Schools. The overwhelming share of the money spent on public

14

education in the District comes from local taxes, fees, and resources. See, e.g.,

15

https://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/DCOCFO_FY17_Bu

16

dget_vol_3.pdf.

17
18

294.

The District of Columbia offers comprehensive health insurance coverage to

eligible children who have been separated from their parents through the Immigrant Children’s

19
Program, which provides coverage equal to that offered by Medicaid, including: doctor visits,
20
21

immunizations, mental health services, dental, vision, and prescription drugs. See Department of

22

Health

Care

Finance

–

DHCF

Immigrant

Children’s

Program

available

23

at

https://dhcf.dc.gov/service/immigrant-childrens-program, attached hereto as Ex. 114.

24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

96

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

L.

Defendants’ Policy Harms the States’ Quasi-Sovereign Interests
295.

States have a quasi-sovereign interest in protecting the health, safety, and well-

being of their residents, including protecting their residents from harms to their physical,

4
5
6

psychological, emotional, or economic health. The States’ interests in preventing and remedying
injuries to the public’s health, safety, and well-being extends to all of their residents who will be

7

harmed by the Policy. The Policy has caused and will continue to cause severe and immediate

8

harm to the States’ residents, including parents who are detained, released, or otherwise reside

9

in the States after being forcibly separated from their children; children who are placed in

10

facilities, shelters, homes or otherwise reside in the States after being separated from their

11
parents; extended families and sponsors in the States; and the States’ immigrant communities.
12
13

296.

The States also have an interest in ensuring that their residents are not excluded

14

from the rights and privileges provided by the U.S. Constitution, international laws, federal laws,

15

and state laws. These rights include due process and equal protection rights afforded to alien

16

parents and their minor children, and rights and protections under federal asylum and refugee

17

laws, international human rights laws, and state laws.

18

297.

The Policy causes measurable harm to existing immigrant communities in the

19
States. A 2018 study published in the Journal of Adolescent Health finds that recent changes in
20
21

U.S. immigration policy that appear to target Latino immigrants have triggered serious

22

psychological distress for many resident Latino parents, including those living in the United

23

States legally. A substantial proportion of U.S. Latino parents reported adverse emotional and

24

behavioral consequences from recent immigration actions and news. For example, 66% said that

25

they very often or always worry about family members getting separated. Nearly 40% of parents

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

97

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

said they frequently avoided getting medical care, help from police, or support from social
service agencies because of reports about immigration actions.

Parents who frequently

experienced worries or changes in behavior due to immigration news and policies had at least a

4
5
6
7
8
9
10

250% increase in the odds of experiencing high psychological distress, including clinical anxiety
and depression. The association between U.S. immigration actions and psychological distress in
this study held true after controlling for education, residency status, gender and other factors.
298.

Many of the States have resident Latino and Hispanic populations that are

affected by the Policy and attendant distress. For example, as of 2010, 10.2 percent of the total
population of Washington State was of Hispanic origin, with some counties over 45%. Indeed,

11
roughly one in seven Washington residents is an immigrant, while one in eight residents is a
12
13
14
15

native-born U.S. citizen with at least one immigrant parent. The other States also have resident
Latino and Hispanic communities who are impacted by the Policy, as well.
299.

Indeed, the States are already acting to try to protect the health, safety, and well-

16

being of persons separated and harmed by the Policy. As a result of the Policy, thousands of

17

immigrant parents and children are being separated and moved to a range of facilities or homes

18

in the States or being released to live in the States. Transfer of these separated immigrant parents

19
and children into the States will continue into the future as long as Defendants’ Policy remains
20
21

in place. See Exs. 55, 8, 21. In May 2018 alone, DHS took nearly 51,912 immigrants into

22

custody, nearly three times the number detained in May 2017. Ex. 55. The number of families

23

apprehended at the Southwestern border increased by 435% in May 2018 in comparison to May

24

2017. Ex. 8. The States have an interest in protecting those immigrants who are resident, or will

25

soon settle, in their jurisdictions.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

98

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

300.

Traumatized immigrant parents and children are already present in the States’

shelters and in federal detention centers in the States. On June 7, 2018, ICE spokeswoman
Danielle Bennett confirmed that because of “implementation of the U.S. Department of Justice’s

4
5
6

zero-tolerance Policy . . . ICE has entered into inter-agency agreements with [the Bureau of
Prisons (BOP)] to acquire access to more than 1,600 additional beds at [five] BOP facilities.”

7

These include 220 beds at the Federal Detention Center SeaTac in Seattle, Washington; 130 beds

8

in Sheridan, Oregon; and 1,000 beds at the Federal Correctional Institution Victorville Medium

9

Security Prison in Victorville, California. See Robert Moore, Immigration Officials Taking Over

10

1,600 Beds in Federal Prison System, Texas Monthly (June 8, 2018) available at

11
https://www.texasmonthly.com/news/immigration-officials-taking-1600-beds-federal-prison12
13
14

system/, attached hereto as Ex. 115.
301.

Defendants’ Policy causes severe and lasting psychological and emotional harm

15

to immigrant parents in Washington who have been separated from their children. For example,

16

of the approximately 200 immigrants detained in Seattle as of June 19, 2018, 174 were women,

17

and dozens of those women were mothers who had been forcibly separated from their children,

18

whose ages range from one-year-old to teenagers. See Jayapal Goes Inside Federal Detention

19
Center to Meet with Asylum Seeking Women: “the mothers could not stop crying” (June 9,
20
21

2018), available at https://jayapal.house.gov/media/press-releases/jayapal-goes-inside-federal-

22

detention-center-meet-asylum-seeking-women-0, attached hereto as Ex. 116.

Many were

23

asylum seekers from Latin American countries. Id. Most had been in detention for more than

24

two weeks and many for over a month. Id. A majority of the mothers have not spoken with their

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

99

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

children in weeks, and Defendants had not provided the mothers with any information regarding
the whereabouts or well-being of their children. Id.
302.

These women described the horrific and inhumane conditions at the Border Patrol

4
5
6

facilities where they were previously detained, including fenced cages; lack of blankets and mats
notwithstanding frigid temperatures; and lack of access to food and water. Id. Some suffered

7

verbal abuse from border agents who called them “filthy” and “stinky.” Id. And they endured

8

further intentionally inflicted trauma when agents told them their “families would not exist

9

anymore” and that they would “never see their children again.” Id.

10

303.

The specific stories of two immigrant mothers who are being detained in Seattle

11
confirm this horrifying experience. These two mothers crossed the border in Texas, immediately
12
13

turned themselves in, and were taken to a holding facility. The mothers were each separated

14

from their daughters upon arrival and held in a facility they describe as similar to a dog kennel.

15

The following week, the mothers appeared in federal court, were charged with illegal entry,

16

found guilty, and served time in Texas. After approximately three weeks, the mothers were

17

flown to SeaTac, where they remain in prison without their daughters.

18

304.

A growing number of children separated from their parents pursuant to

19
Defendants’ Policy have been placed in facilities in Washington. These children have suffered
20
21
22

severe psychological and emotional trauma.
305.

Similarly, a Brazilian woman who recently arrived in Massachusetts presented

23

herself for asylum at the U.S.-Mexico border and was detained and then separated from her 8-

24

year-old son. Immigration authorities determined that she has a credible fear of persecution if

25

she is returned to Brazil, so she has since been released pending adjudication of her asylum

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

100

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

claim. As of June 22, 2018, she had not, however, been reunited with her son, who remains in
a facility in Chicago, where he hasn’t been able to see his mother for almost a month. See Akilah
Johnson, A Brazilian Mother Seeking Asylum Was Freed from Detention. Her son was not. The

4
5
6

Boston

Globe

(June

22,

2018)

available

at

https://www.bostonglobe.com/news/nation/2018/06/22/brazilian-mother-seeking-asylum-was-

7

freed-from-detention-her-son-was-not/kIYT1F4fHTsHxdkfmHh73I/story.html, attached hereto

8

as Ex. 117.

9
10

306.

In Massachusetts, two Guatemalan children were recently released to their father,

a Massachusetts resident, after being separated from their mother, with whom they crossed the

11
border to seek asylum. She is still in detention in Texas. The children were held in facilities in
12
13

Texas and then Michigan for five weeks until they were released to their father. The young girl,

14

who is 9 years old, has been particularly affected by the experience and still cries for her mother.

15

See Mark Sullivan, Guatemalan in Westboro Sees the Effects of Separation Policy Firsthand,

16

The

17

http://www.telegram.com/news/20180620/guatemalan-in-westboro-sees-effects-of-separation-

18

Worcester

Telegram

&

Gazette

(June

20,

2018)

available

at

policy-firsthand, attached hereto as Ex. 118.

19
307.

Defendants’ abhorrent and indefensible family-separation Policy has already had

20
21

an impact on Oregon in a variety of ways, and will continue to do so. There are at least 123

22

immigrant men detained at the federal prison in Sheridan, Oregon. At least six of these are

23

fathers, from Mexico, Guatemala and Honduras, who have been separated from their children

24

pursuant to the Policy. Oregon’s federal lawmakers have been able to visit these detainees, and

25

report that they have been denied access to lawyers and health care and are confined to cells for

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

101

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

up to 22 hours a day. Oregon immigration lawyers also report that they have been repeatedly
denied access to detainees. The Mexican Consulate reports that one of the detained men had his
newborn infant, only 15 days old, taken from him. Another detainee was separated from his 18-

4
5
6
7

month-old toddler. Another reports his wife is detained in San Antonio, Texas, and he does not
know the whereabouts of their 4-year-old child.
308.

There are a number of children in Oregon who have been separated from their

8

parents by the defendants’ implementation of its Policy, including two children who saw their

9

mother being taken away in chains. At least three others have been separated from their parents

10

at the border pursuant to the Policy.

11
309.

Defendants’ unlawful Policy also cruelly affects the wellbeing of Oregon

12
13

residents, including its immigrant and Hispanic and Latinx populations.

For example, a

14

substantial number of Oregon residents are survivors of the Japanese-American internment

15

camps of World War II, or family members of such survivors. Many of those survivors and/or

16

family members have experienced significant emotional and psychological distress as a result of

17

the government’s family-separation Policy.

18

310.

Similarly, some Oregonians are survivors of Nazi concentration camps. Many of

19
those survivors are also experiencing profound psychological and emotional distress as a result
20
21

of the federal government’s family-separation Policy. For all these Oregon survivors and their

22

families, the Policy echoes the ethnic-based targeting that they experienced in the twentieth

23

century, and causes them to relive the trauma of one of the darkest times in history. Many

24

survivors are also profoundly afraid for the safety of minority communities targeted by the

25

current Administration.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

102

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

311.

Defendants’ Policy similarly harms immigrant parents and children in California

who have been separated by federal immigration officials. For example, at least 50-60 children
are being served in group homes and family homes approved by foster family agencies in

4
5
6

California as a result of Defendants’ Policy.
312.

Additionally, parents, including asylum-seekers, who have been separated from

7

their children are being housed at facilities throughout Southern California. There is a

8

particularly large number of immigration detainees being held at the Victorville facility, but

9

unlike the SeaTac facility, attorneys have been denied access to determine how many of those

10

individuals are parents.

11
313.

Several asylum-seeker parents who arrived at a port of entry with a migrant

12
13

caravan in April 2018 were separated from their children. While their children have been placed

14

by ORR in facilities across the nation, the parents are being detained in other immigration

15

detention facilities in California.

16

children’s whereabouts or how to locate them. As a result, parents have been unable to locate

17

or communicate with their children, are not receiving regular in-person visitation or phone

18

Parents are not provided with information about their

contact with their children, and have not been told if or when their families will be reunified.

19
314.

Likewise, New Mexico has a right to ensure that no one within its border is

20
21

excluded from the rights and privileges provided by the U.S. Constitution, international, federal

22

or state law. State resources are used without statutory authority if used in furtherance of

23

unconstitutional federal policies contravening the purposes of New Mexico’s constitution and

24

laws. There is well documented evidence to suggest that these interests are currently being

25

infringed upon with the boundaries of the State of New Mexico.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

103

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

315.

The federal Office of Refugee Resettlement reported that 15 Unaccompanied

Children (UAC) taken into custody in New Mexico were released to U.S. sponsors between
October 2017 and April 2018, but those children were not released to caregivers licensed by the

4
5
6

State of New Mexico. One Brazilian grandmother held at the Santa Teresa border crossing in
New Mexico was separated from her 16-year-old ward almost a year ago. The child, who has

7

severe epilepsy, neurological problems and is autistic, was placed in Connecticut. See Angela

8

Kocherga, Zero-tolerance policy impacts New Mexico, Albuquerque Journal June 20, 2018, page

9

4

10

(citing

Maria Vandelice de Pastos’

attorney Eduardo

Beckett), available at

https://www.abqjournal.com/1186875/zerotolerance-policy-impacts-new-mexico.html,

11
attached hereto as Ex. 119.
12
316.

13

Approximately fifty mothers, some with valid claims for asylum have had their

14

children separated from them at border crossings and are being held in a private jail in Otero

15

County, New Mexico. One of the Mothers details health issues her child faces and that she is

16

completely unaware of where he is or whether his health needs are being addressed. See Jonathan

17

Blitzer, “Mothers in a New Mexico Prison Do Not Know How to Find Their Children,” New

18

Yorker

Magazine

(June

21,

2018)

available

at

19
https://www.newyorker.com/news/dispatch/mothers-in-a-new-mexico-prison-do-not-know20
21
22

how-to-find-their-children, attached hereto as Ex. 120.
317.

New Mexico also has an interest in ensuring that New Mexico citizens continue

23

to be afforded their rights to cross the U.S.-Mexico border unmolested. Because many New

24

Mexico families visit their relatives in Mexico and because these families traditionally visit with

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

104

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2

their own children in tow, such New Mexico citizens face the potential of separation in
derogation of their rights to travel and to maintain their familial ties.

3

318.

Because there is direct evidence of harm to these families, occurring within the

4
5
6

borders of New Mexico, the state has a distinct interest in ensuring that no violations of law
occur. This notion is grounded in general principles of federalism, and are distinctly the

7

obligations of the state in ensuring that its constitution and laws are upheld. This interstitial

8

framework is well grounded in law and is the underpinning of our system of government.

9
10

319.

Fathers who were forcibly separated from their children at the border are

currently being detained at the Elizabeth Detention Center in Elizabeth, New Jersey. See Brenda

11
Flanagan, At Detention Center Rally, Family Reunification Left in Question, NJTV News June
12
13
14

22, 2018, clip available at https://www.njtvonline.org/news/video/at-detention-center-rallyfamily-reunification-left-in-question/.
320.

15

In addition, children who were forcibly separated from their parents at the border

16

have been placed at the Center for Family Services in Camden, New Jersey, which contracts

17

with ORR to provide shelter to children who crossed the border. See Kelly Heyboer and Erin

18

Banco, 20 Immigrant Children Have Arrived in N.J. in the Last 30 Days. Here’s What We Know,

19
NJ

Advance

Media

for

NJ.com,

Updated

June

22,

2018

at

12:24PM,

20
21
22
23
24
25

https://www.nj.com/news/index.ssf/2018/06/are_immigrant_kids_being_held_in_nj_heres_ho
w_trum.html, attached hereto as Ex. 121.
321.

Defendants’ Policy causes severe and potentially permanent emotional and

psychological trauma to children in Rhode Island who have been separated from their parents
pursuant to Defendants’ Policy. Unaccompanied Alien Children are released to sponsors in

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

105

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Rhode Island by the Office of Refugee Resettlement of the United States Department of Health
and Human Services each year. For example in FY 2017, 234 total Unaccompanied Minor Child
were released in Rhode Island and thus far in FY 2018 that total already stands at 129. These

4
5
6
7

children have suffered severe psychological and emotional trauma. See. Unaccompanied Alien
Children Released to Sponsors by State (June 30, 2017) Ex. 88.
322.

In Vermont, reports are emerging that federal authorities’ animus toward Latino

8

migrants is taking a psychological and medical toll on migrant workers essential to Vermont’s

9

dairy industry and economy. See J. Dillon, For Undocumented Workers On Vermont Farms,

10

2017 Was A Year Filled With Anxiety, Vermont Public Radio (January 5, 2018), (public health

11
screening of migrant workers found 80% exhibiting elevated levels of stress), available at
12
13

http://digital.vpr.net/post/undocumented-workers-vermont-farms-2017-was-year-filled-

14

anxiety#stream/0, attached hereto as Ex. 122. The Policy will likely increase the strain on an

15

already vulnerable population.

16
17
18

323.

Children who have been forcibly separated from their parents at the border have

already arrived in Minnesota and other children who have been separated from their parents are
likely to come to Minnesota in the future.

19
324.

For example, an 8 year-old girl experienced the most “traumatic moment of her

20
21

life” when she was forcibly separated from her father at the U.S.-Mexico border. See Chris

22

Serres and Mary Lynn Smith, the Star Tribune (June 23, 2018) available at

23

http://www.startribune.com/migrant-children-separated-from-parents-start-to-arrive-in-

24

minnesota/486365431/, attached hereto as Ex. 123. The father “begged the officer to be able to

25

stay with his child. He was crying. She was crying.” Id. After they were separated, her father

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

106

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

was deported to Guatemala. The girl remains in Minnesota, but wants to be reunited with her
family.
325.

As one lawyer who represents unaccompanied minors in Minnesota explained,

4
5
6
7

“[s]o many of these children, they just want their parents. They really, really, really want to be
reunited with their families.” Id.
326.

Illinois has also received children affected by the Policy. As of June 22, 2018,

8

approximately 66 minor children, who have been separated from their parents or guardians and

9

are awaiting immigration proceedings, are currently under the care of Heartland Alliance.

10

Currently, Heartland is housing these separated children in the cities of Chicago and Des Plaines.

11
327.

Heartland is endeavoring to reunite the 66 separated children with family

12
13

members in the United States. Certain of these children will likely remain in Illinois, given the

14

fact that 1,568 unaccompanied minors were released to sponsors located in Illinois between

15

October 2014 and April 2018. See Ex. 88.

16
17
18

328.

New York State relies on the same agencies that the federal ORR relies on for

provision of foster care services. ORR currently contracts with eleven provider agencies in New
York State to care for UACs, including those children whom Defendants have separated from

19
their parents: Abbott House; Catholic Family Center; Catholic Guardian Services; Cayuga Home
20
21

for Children; Children’s Home of Kingston; Children’s Village; Jewish Child Care Association

22

of New York; Rising Ground (formerly Leake and Watts Services); Lincoln Hall; Lutheran

23

Social Services of New York; and MercyFirst. These agencies either run residential congregate

24

care programs that house the children or place the children with family or sponsors in the

25

community, or do both. These agencies also provide residential care and placement services for

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

107

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

children who enter New York’s child welfare system because they are abandoned, abused,
neglected, delinquent or dependent children. OCFS has confirmed that at least 321 children who
have been separated from their parents at the Southwestern border are currently in the care of

4
5
6

one of these eleven agencies and thus residing in New York State. Since the State was unable to
obtain this information from HHS or ORR, OCFS undertook efforts to create a census of

7

separated children in New York State. Specifically, OCFS’s Acting Commissioner issued a

8

directive to the agencies to confirm the total number of UACs in their care. Upon receipt of that

9

information, OCFS staff verbally verified with each voluntary agency how many of those

10

children were in fact separated from their families at the border. To accomplish this, OCFS staff

11
took a hiatus from their regular duties and, in a single day, physically went to each of the 11
12
13

agencies to review records and interview children in order to obtain a current head count. ORR

14

has still not confirmed this number or shared data regarding how many children have already

15

come through these voluntary agencies, or how many it plans to send to these voluntary agencies

16

in the future.

17
18

329.

Staff at one voluntary agency have informed local government officials that the

ages of most children newly placed at their agency, many of whom were separated from family

19
at the border, are between four and twelve. The youngest child so far was a nine-month-old
20
21
22

baby, in addition to multiple not-yet-verbal toddlers.
330.

The children whom Defendants have separated from their parents and sent to New

23

York are suffering extreme trauma. For example, a South American boy who was separated from

24

his father at the Mexican border was rushed to the hospital because he was about to jump out of

25

the second-story window of the group home where he was sent in early June after being forcibly

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

108

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

separated from his family. The distraught child verbalized that he wanted to jump because he
missed his parents. Twelve other young immigrant children who were separated from their
parents at the border have been treated for physical and mental illnesses at New York City

4
5
6

hospitals. One child was suicidal and others were treated for depression and anxiety. See Jillian
Jorgensen, City hospitals have treated 12 immigrant children who were taken from parents,

7

including

8

http://www.nydailynews.com/news/politics/ny-pol-immigrant-children-treated-20180621-

9

story.html, attached hereto as Ex. 124.

10

331.

a

suicidal

child,

N.Y.

Daily

News

(June

21,

2018)

available

at

New York State has a quasi-sovereign interest in the health, safety and well-being

11
of all children within its borders, and Defendant’s separation policy directly undermines that
12
13

interest by causing severe trauma to these children. New York State goes to great lengths to

14

provide significant due process protections for both parents and children when families are

15

separated as a result of government action. When a child is placed in foster care in New York,

16

state statutes and regulations afford both the parent and the child a range of rights, including the

17

right of visitation. Indeed, the child’s family service plan must include a plan for regular

18

visitation between the parents and child. N.Y. Soc. Serv. Law § 409-e; N.Y. Comp. Codes R. &

19
Regs. Tit. 18 § 428.3. See also N.Y. Fam. Ct. Act § 1030(a) (providing that a parent has a right
20
21

of regular and reasonable visitation with a child in foster care unless otherwise prohibited by

22

court order). This right of regular visitation is afforded even when one or both parents is

23

incarcerated in a prison or jail. In that situation, the child welfare agency must make suitable

24

arrangements with the correctional facility for a parent to visit with the child, unless the visiting

25

would be harmful to the child. 11 OCFS ADM 07. Moreover, parents who are incarcerated are

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

109

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

entitled to participate in the planning for their child in foster care by participating in family court
proceedings and periodic family service plan reviews. See N.Y. Comp. Codes R. & Regs. Tit.
18 § 428.9. To protect these vital rights, state law provides that the parent of a child in foster

4
5
6

care has a right to assigned counsel by the court where such parent is financially unable to obtain
one. N.Y. Family Court Act § 26. Such rules are premised on the importance of the parent-child

7

bond, and the parent’s critical, indispensable role in assuring that the needs of his or her child

8

are met. Here, by contrast, the parents and children whom Defendants have separated at the

9

border are afforded no visitation procedure and have no process to recognize or protect their

10

rights. Due to Defendant’s illegal policy, the separated children who are currently residing in

11
New York are being treated differently than other children in foster care in the State, to their
12
13
14
15

great detriment and in direct contravention of the state’s interest in ensuring the health, safety,
and well-being of all its residents.
332.

Upon information and belief, family members of separated children currently

16

reside in New York State. An HHS spokesman stated that “[t]here’s an effort to place [children

17

who were separated at the border] as closely as possible to where they’re going to be eventually

18

reunified with a sponsor or a family member” and that if a child was placed in New York it

19
usually means that there is a family member residing in the state who is a possible placement
20
21

option for the child. See Tal Kopan, Why some children have been sent to states far away from

22

the US border, CNN (June 22, 2018) available at https://www.cnn.com/politics/live-

23

news/immigration-border-children-separation/h_714fd2e091af7813fb8df5fc587c7b8b,

24

attached hereto as Ex. 125. New York has a quasi-sovereign interest in ensuring that children

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

110

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

residing in New York State, who have been separated from their parents, are placed with family
members also residing in the State if the children cannot be quickly reunified with their parents.
333.

Maryland has an interest in the health, safety, and wellbeing of all its residents,

4
5
6

including any parents or children being placed in Maryland under the Policy. Immigration agents
are reported to have sent dozens of children to Maryland during the implementation of the Trump

7

Administration’s family separation policy. The children often have no family connection to the

8

state; they are sent here because the system has capacity. Some of the children have been placed

9

with foster families coordinated by care organizations, while others are placed in residential

10

group child care.

11
334.

Immigration officials are sending separated children to Maryland without the

12
13

most basic information about the children or their parents, or how to connect them with one

14

another. And many of the children have come with little or no information and are too young—

15

as young as 18 months—to communicate with caregivers or social workers trying to track down

16

relatives who could take them in. Thus, the sheltering organizations that are housing the children

17

do not know how to identify, let alone locate, the children’s parents, who risk deportation before

18

they can find or be reunited with their children.

19
335.

Care organizations report that children who have been separated from their

20
21

parents suffer greater trauma than other unaccompanied minors whom the organizations care for.

22

For some of these children, their suffering is immediately apparent, as has been shown in

23

publicly available videos and other recordings. For others, their suffering emerges over time, as

24

they become more comfortable with the staff of the care organizations. And when those

25

organizations can track down a parent and arrange for a call with his or her child, the children

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

111

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

are reportedly so upset afterwards that they need counseling. See Andrea K. McDaniels, Border
separations could have traumatic impact on children, doctors say, The Balt. Sun (June 22, 2018) at
A9, available at http://www.baltimoresun.com/health/bs-hs-border-separation-trauma-20180621-

4
5
6
7
8
9
10

story.html, attached hereto as Ex. 126; Ian Duncan, “, The Balt. Sun, June 21, 2018, at A1,
available at http://www.baltimoresun.com/news/maryland/bs-md-border-separations-20180620story.html, attached hereto as Ex. 127.
336.

Parents who have been separated from their children are also being sent to

Maryland and detained in local facilities that contract with ICE to hold detainees, mostly pending
criminal process. Anne Arundel, Frederick, Howard, and Worcester counties have all agreed to

11
hold immigration detainees, and the Anne Arundel Detention Center is reportedly holding at
12
13

least two parents who have been separated from their children under the Trump Administration’s

14

policy. See Ex. 127. In addition, Maryland is the location of a Federal Correctional Institution

15

and the Chesapeake Detention Facility where, by contract, the federal government houses federal

16

pre-trial detainees, which might be affected by ICE’s policy of housing separated parents in

17

federal detention facilities. Parents held in Maryland have little contact with their children and

18

no information about where they are being held. One was reportedly separated from his five-

19
year-old daughter by force and has not had any contact with, or information about, her in the two
20
21

months since. See Patricia Sullivan, Md., Va. congressmen hear stories of family separation, the

22

Washington

23

https://www.washingtonpost.com/local/immigration/md-va-congressmen-hear-stories-of-family-

24

separation/2018/06/20/af3fe0ae-74aa-11e8-b4b7-

25

Post

(June

21,

2018)

at

B4,

available

at

308400242c2e_story.html?noredirect=on&utm_term=.fa6d5bb19919, attached hereto as Ex. 128.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

112

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

337.

In other respects, as well, ORR is using facilities in Maryland to facilitate the

Administration’s family separation policy without providing the transparency that would allow
Maryland to ensure the safety and security of its residents, including the parents and children

4
5
6

who have been separated from one another under the policy. ORR has provided no information
about the care and circumstances of immigrant children detained within Maryland’s borders—

7

where they are being held; what condition they are in; where their parents are; whether they have

8

adequate food, clothing and shelter; whether they have access to medical care and legal

9

representation; or when and how they will be reunited with their families.

10

338.

Children separated from their families as a result of Defendants’ actions have

11
been sent to organizations in Pennsylvania. For instance, 50 child immigrants separated from
12
13

their families are being housed at the Holy Family Institute in Emsworth, Pennsylvania, a

14

Catholic social services organization that is under contract with Defendant ORR. See Paula

15

Reed Ward and Ashley Murray, Child migrants separated from families housed at Holy Family

16

Institute in Emsworth, Pittsburg Post-Gazette (June 17, 2018) available at http://www.post-

17

gazette.com/news/faith-religion/2018/06/17/Child-migrants-separated-from-families-being-

18

housed-at-Holy-Family-Institute/stories/201806160074, attached hereto as Ex. 129. The

19
children, who range in age from 4 to 17, are from Honduras, Guatemala, El Salvador, and other
20
21

countries. Other child immigrants separated from their parents as a result of Defendants’ actions

22

have been placed with a shelter in Pennsylvania’s Lehigh Valley. See Laura Benshoff, As Trump

23

ends family separation policy, children removed from their parents are already in Pa., (June 21,

24

2018),

25

available

at

https://whyy.org/segments/as-trump-ends-family-separation-policy-

children-removed-from-their-parents-are-already-in-pa/, attached hereto as Ex. 130.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

113

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

339.

The District of Columbia places an emphasis on preserving families and

reunifying families even when children become involved with the state due to child abuse or
neglect. See D.C. Code § 4-1303.03(a)(11) and (a)(13). The District of Columbia follows the

4
5
6

United States Supreme Court’s holdings that there is “a presumption that fit parents act in the
best interests of their children,” Troxel v. Granville, 530 U.S. 57, 68, (2000), and recognition

7

that the state may not “inject itself into the private realm of the family” absent a finding of

8

unfitness. Id. at 68–69. The Court has frequently emphasized the importance of the family, and

9

has held that individuals have a fundamental right to parent their own children. Stanley v. Illinois,

10

405 U.S. 645, 651 (1972). This important relationship may not be terminated without a predicate

11
determination, by clear and convincing evidence that the individual is unfit to parent. Santosky
12
13
14

v. Kramer, 455 U.S. 745 760, 768–71 (1982).
340.

The District of Columbia also prohibits discrimination based upon the race, color,

15

religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender

16

identity or expression, familial status, family responsibilities, genetic information, disability,

17

matriculation, or political affiliation, source of income, status as a victim of an intrafamily

18

offense, and place of residence or business of any individual. D.C. Code § 2-1401.01.

19
341.

Defendants’ Policy causes severe and potentially permanent emotional and

20
21

psychological trauma to children who have been separated from their parents, some of whom

22

are placed with sponsors in the District of Columbia. The number of children placed with

23

sponsors in the District will increase as the sponsors are identified and vetted, and approved to

24

receive these children.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

114

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

V.

CAUSES OF ACTION

Count I: Violation of Fifth Amendment – Substantive Due Process
342.

All of the foregoing allegations are repeated and realleged as though fully set

4
5
6

forth herein.
343.

State residents who are parents have a fundamental liberty interest in the care,

7

custody, and control of their children. This includes current state residents and those who may

8

arrive in the States following separation pursuant to Defendants’ Policy.

9
10

344.

State residents who are minors have a reciprocal liberty interest in their parents’

care. This includes current state residents and those who may arrive in the States following

11
separation pursuant to Defendants’ Policy.
12
13

345.

State residents who are minors have a right to be free of unreasonable risk of

14

harm, including trauma from separation and detention, as well as the risk of harm from housing

15

them in unlicensed facilities.

16
17
18

346.

Defendants’ Policy offends the Due Process Clause by separating parents from

their children without any showing that the parent is unfit or is otherwise endangering the child.
347.

Defendants’ violation causes ongoing harm to the States and their residents.

19
Count II: Violation of Fifth Amendment – Procedural Due Process
20
21

348.

22

forth herein.

23

349.

All of the foregoing allegations are repeated and realleged as though fully set

24

The Due Process Clause of the Fifth Amendment prohibits the federal

government from depriving individuals of their liberty interests without due process of law.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

115

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

350.

Defendants’ Policy deprives the States’ residents of a fundamental liberty interest

with no hearing whatsoever. This includes current state residents and those who will arrive in
the States following separation pursuant to Defendants’ Policy.

4
5
6
7
8
9
10

351.

Defendants have violated the procedural due process guarantees of the Fifth

Amendment.
352.

Defendants’ violation causes ongoing harm to the States and their residents.

Count III: Violation of Fifth Amendment – Equal Protection
353.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.

11
354.

The Due Process Clause of the Fifth Amendment prohibits the federal

12
13
14

government from denying equal protection of the laws.
355.

The Policy burdens a fundamental right and targets individuals for discriminatory

15

treatment based on their nationality or ethnicity, without lawful justification, and is therefore not

16

narrowly tailored to achieve a compelling governmental interest. The Policy is also

17

unconstitutional because it disparately impacts immigrants from Latin America arriving at the

18

Southwestern border and is motivated by animus and a desire to harm this particular group.

19
356.

Alternatively, the discriminatory terms and application of the Policy are arbitrary

20
21
22
23
24

and do not bear a rational relationship to a legitimate federal interest.
357.

Through their actions above, Defendants have violated the equal protection

guarantee of the Fifth Amendment.
358.

Defendants’ violation causes ongoing harm to the States and their residents.

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

116

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

Count IV: Violation of the Administrative Procedure Act
359.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.

4
5
6
7
8
9
10

360.

The Administrative Procedure Act, 5 U.S.C. § 706(2), prohibits federal agency

action that is arbitrary, unconstitutional, and contrary to statute.
361.

Defendants’ Policy constitutes final agency action for purposes of the

Administrative Procedure Act.
362.

Defendants have offered no legitimate basis for their Policy.

363.

Defendants’ Policy is arbitrary and capricious because it conflicts with various

11
laws requiring Defendants and the States to consider the best interests and well-being of children
12
13
14

arriving to the United States.
364.

The Policy is not authorized or required by the TVPRA, which only applies to

15

unaccompanied minors. The minors subject to Defendants’ Policy are not “unaccompanied,” as

16

they are accompanied by a parent or guardian. Indeed, in a White House Press Release, dated

17

October 8, 2017, Defendants released a “detailed outline of President Trump’s immigration

18

principles and policies” which states Defendants’ agreement that “alien minors [] are not UACs

19
[if they are] accompanied by a parent or legal guardian.” See Immigration Principles & Policies,
20
21

available at http://www.aila.org/infonet/wh-immigration-principles-and-policies,

22

hereto as Ex. 131.

23

365.

attached

24

Further, as alleged herein, the separation Policy contravenes the spirit and

purpose of the TVPRA, which seeks to protect children. In general, the TVPRA requires,

25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

117

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

whenever possible, family reunification or other appropriate placement for unaccompanied alien
children. See 8 U.S.C. § 1232(c)(2)(A).
366.

In implementing the Policy, federal agencies have taken or will take

4
5
6
7
8
9
10

unconstitutional and unlawful action, as alleged herein, in violation of the Administrative
Procedure Act.
367.

In implementing the Policy, federal agencies have applied or will apply

provisions arbitrarily, in violation of the Administrative Procedure Act.
368.

Defendants’ violation causes ongoing harm to the State and its residents.

Count V: Violation of Asylum Laws

11
369.

Under United States law, noncitizens with a well-founded fear of persecution

12
13

shall have the opportunity to obtain asylum in the United States. 8 U.S.C. § 1158 (“[a]ny alien

14

who is physically present in the United States or who arrives in the United States . . . irrespective

15

of such alien’s status, may apply for asylum in accordance with this section.”). Federal law also

16

prohibits the return of a noncitizen to a country where he may face torture or persecution. See 8

17

U.S.C. § 1231(b); United Nations Convention Against Torture (CAT), implemented in the

18

Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, Title XXII,

19
§ 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
20
21

370.

In enacting these statutes, Congress created a right to petition our government for

22

asylum that at the very least requires that asylum seekers be able to present themselves at ports

23

of entry to request asylum. Defendants are preventing asylum-seekers from presenting

24

themselves at ports of entry that are allegedly “full,” thus preventing asylum claims from being

25

heard, in violation of 8 U.S.C. § 1158.

26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

118

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

371.

Another effect of turning asylum-seekers away prior to their reaching a port of

entry is that the immigrants are then forced to cross the border outside a port of entry, in a claimed
violation of 8 U.S.C. § 1325, in order to present their asylum claim. But under the Policy, all

4
5
6

such border-crossing violations are referred to the Department of Justice and prosecuted.
By criminalizing the pursuit of asylum, this Policy runs counter to established immigration and

7

refugee laws that allow a person to present themselves to immigration officials to request asylum

8

wherever they are able.

9
10

VI.

PRAYER FOR RELIEF

Plaintiffs request that the Court enter a judgment against Defendants and award the

11
following relief:
12
13

a.

Enjoin Defendants from refusing to accept applications for asylum at a

14

valid port of entry, and from criminally charging asylum applicants with illegal entry or

15

re-entry if they present themselves at a valid port of entry;

16
17
18

b.

Declare Defendants’ family separation Policy unauthorized by or contrary

to the Constitution and laws of the United States;
c.

Enjoin Defendants from enforcing the family separation Policy, including

19
at all United States borders and ports of entry, pending further orders from this Court;
20
21

d.

Order Defendants to expeditiously reunite all children with parents from

22

whom they have been separated pursuant to the Policy, unless a court of competent

23

jurisdiction has found the parents to be unfit;

24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

119

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1
2
3

e.

Enjoin Defendants from conditioning family reunification on an

agreement not to petition for asylum or other relief available under the INA, or on an
agreement to withdraw a petition or other request for that relief;

4
5
6
7

f.

Enjoin Defendants from removing separated parents from the United

States without their children, unless the parent affirmatively, knowingly, and voluntarily
waives the right to reunification before removal after consultation with an attorney;

8

g.

Enjoin Defendants from placing children in unlicensed facilities;

9

h.

Order Defendants to provide specific information to parents who are

10

lawfully separated from their children about the nature and purpose of the separation, the

11
process by which they can be reunified, and the whereabouts of their children at all times,
12
13
14
15

absent a finding by a court of competent jurisdiction that such information would be
dangerous to a child’s welfare;
i.

Award such additional relief as the interests of justice may require.

16
17
18
19
20
21
22
23
24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

120

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

1

Respectfully submitted this 26th day of June, 2018.

2
3
4
ROBERT W. FERGUSON, WSBA #26004
Washington State Attorney General
NOAH G. PURCELL, WSBA #43492
Solicitor General
COLLEEN M. MELODY, WSBA #42275
Civil Rights Division Chief
LAURA K. CLINTON, WSBA #29846
MEGAN D. LIN, WSBA #53716
Assistant Attorneys General
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff State of Washington

5
6
7
8
9
10
11
12
13
14
15

MAURA HEALEY
Attorney General for Massachusetts

16
17

/s/ Abigail B. Taylor
ABIGAIL B. TAYLOR
Director, Child & Youth Protection Unit
GENEVIEVE C. NADEAU
Chief, Civil Rights Division
ANGELA R. BROOKS
Assistant Attorney General
Public Protection & Advocacy Bureau
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff Commonwealth of Massachusetts

18
19
20
21
22
23
24
25
26

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

121

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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XAVIER BECERRA
Attorney General of California
Michael L. Newman
Susan E. Slager
Supervising Deputy Attorneys General
Vilma Palma-Solana
Deputy Attorney General

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/s/ Sarah E. Belton
SARAH E. BELTON
Deputy Attorney General
Office of the Attorney General
1515 Clay Street, Suite 2000
Oakland, CA 94612-1492
Telephone: [phone]
[e-mail]
Attorneys for Plaintiff State of California

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BRIAN E. FROSH
Attorney General of Maryland

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/s/ Julia Doyle Bernhardt
JULIA DOYLE BERNHARDT
ADAM D. SNYDER
Assistant Attorneys General
Office of the Attorney General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff State of Maryland

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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ELLEN F. ROSENBLUM
Attorney General

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/s/ Scott J. Kaplan
SCOTT J. KAPLAN, WSBA #49377
Senior Assistant Attorney General
Oregon Department of Justice
100 SW Market Street
Portland, OR 97201
[phone]
Email: [e-mail]
Attorneys for Plaintiff State of Oregon

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HECTOR BALDERAS
Attorney General of New Mexico

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/s/ Tania Maestas
TANIA MAESTAS,
Chief Deputy, Civil Affairs
400 Galisteo St.
Santa Fe, NM 87501
Tel: [phone]
[e-mail]
Attorneys for Plaintiff State of New Mexico

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JOSH SHAPIRO
Attorney General of Pennsylvania

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/s/ Jonathan Scott Goldman
JONATHAN SCOTT GOLDMAN
Executive Deputy Attorney General
MICHAEL J. FISCHER
Chief Deputy Attorney General
Office of Attorney General
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Commonwealth of Pennsylvania

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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GURBIR S. GREWAL
Attorney General of New Jersey

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/s/ Rachel Wainer Apter
RACHEL WAINER APTER
Assistant Attorney General
Office of the Attorney General
Richard J. Hughes Justice Complex
25 Market Street, 8th Floor, West Wing
Trenton, New Jersey 08625-0080
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff State of New Jersey

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THOMAS J. MILLER
Attorney General of Iowa

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/s/ Nathan Blake
NATHAN BLAKE
Deputy Attorney General
Iowa Department of Justice
1305 E. Walnut St.
Des Moines, IA 50314
[phone]
[e-mail]
Attorneys for Plaintiff State of Iowa

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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LISA MADIGAN
Attorney General of Illinois

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/s/ Jeanne Witherspoon
JEANNE WITHERSPOON
Chief, Special Litigation Bureau
ANNA P. CRANE
MATTHEW J. MARTIN
KRENICE M. ROSEMAN
JEFFREY J. VANDAM
Assistant Attorneys General
Office of the Illinois Attorney General
100 West Randolph Street, 12th Floor
Chicago, IL 60601
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for the Plaintiff State of Illinois

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LORI SWANSON
Attorney General
State of Minnesota

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/s/ Alethea M. Huyser
ALETHEA M. HUYSER
Assistant Solicitor General
445 Minnesota Street, Ste 1100
St. Paul, Minnesota 55101-2128
Telephone: [phone]
Email: [e-mail]
Attorneys for Plaintiff State of Minnesota

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PETER F. KILMARTIN
Attorney General of the State of Rhode Island

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/s/ Adam D. Roach
ADAM D. ROACH
Special Assistant Attorney General
RI Office of the Attorney General
150 South Main Street
Providence, RI 02903
[phone]
[e-mail]
Attorneys for Plaintiff State of Rhode Island

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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MARK R. HERRING
Attorney General of Virginia

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/s/ Toby J. Heytens
TOBY J. HEYTENS
Solicitor General
MATTHEW R. MCGUIRE
Deputy Solicitor General
Office of the Attorney General
202 N. Ninth Street
Richmond, VA 23223
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Commonwealth of Virginia

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BARBARA D. UNDERWOOD
Attorney General of New York

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/s/ Lourdes M. Rosado
LOURDES M. ROSADO, Bureau Chief
JESSICA ATTIE, Special Counsel
LILIA TOSON, Assistant Attorney General
Civil Rights Bureau
Office of the New York State Attorney General
28 Liberty Street
New York, NY 10005
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff State of New York

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COMPLAINT FOR DECLARATORY
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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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THOMAS J. DONOVAN, JR.
Attorney General of Vermont

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/s/ Benjamin D. Battles
BENJAMIN D. BATTLES,
Solicitor General
JULIO A. THOMPSON,
Assistant Attorney General, Civil Rights Unit
Office of the Attorney General
109 State Street
Montpelier, VT 05609
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff State of Vermont

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JOSHUA H. STEIN
Attorney General of North Carolina

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/s/ Sripriya Narasimhan
SRIPRIYA NARASIMHAN,
Deputy General Counsel
RYAN Y. PARK
Deputy Solicitor General
North Carolina Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff State of North Carolina

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COMPLAINT FOR DECLARATORY
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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744

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MATTHEW DENN
Attorney General of Delaware

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/s/ Aaron R. Goldstein
AARON R. GOLDSTEIN, #3735
Chief Deputy Attorney General
ILONA KIRSHON, #3705
Deputy State Solicitor
DAVID LYONS, #2341
State of Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff State of Delaware.

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KARL A. RACINE
Attorney General for the District of Columbia

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/s/ Robyn R. Bender
ROBYN R. BENDER
Deputy Attorney General, Public Advocacy Division
VALERIE M. NANNERY
Assistant Attorney General
Office of the Attorney General
441 4th Street, N.W., Suite 630 South
Washington, DC 20001
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff District of Columbia

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Pro Hac Vice motions forthcoming for all counsel of
record not barred in the Western District of Washington.

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COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue. Suite 2000
Seattle, WA 98104-3188
206-464-7744