Executive order does not fix unlawful policy
SEATTLE — Attorney General Bob Ferguson today announced he will lead a coalition of states in challenging the Trump Administration’s policy of forced family separation on the U.S. southern border. The lawsuit will be filed in the U.S. District Court for the Western District of Washington.
When the lawsuit is filed, it will be Ferguson’s 27th against the Trump Administration. Ferguson has nine legal victories thus far and has not lost a case against the Administration.
“This is a rogue, cruel, and unconstitutional policy,” Ferguson said. “We’re going to put a stop to it.”
“We have no way to predict from one day to the next what this president’s policies or intentions are,” Governor Jay Inslee said. “But one thing we know for sure is Washington state will always be among the first to stand up for the people and the values that make our state and our nation an enduring beacon of hope and opportunity. These cruel policies and this executive order are un-American and create chaos, fear and uncertainty. Washington continues to stand ready to ensure this president is held accountable.”
"Time and time again, we have seen courts strike down Trump administration immigration policies that violate our values and the Constitution," said Congresswoman Pramila Jayapal. "I strongly support Attorney General Ferguson's efforts to hold this administration legally accountable for policies that inflict abuse on immigrant children and parents. This is an important, heartbreaking and crucial moment for our country. Our own state is now seeing the devastating impact of cruel family separation and incarceration policies. Make no mistake: the president's latest executive order seeks to indefinitely detain children and their parents and continues to criminally prosecute asylum-seekers. It is no solution to this crisis. I want to thank the Attorney General for his leadership in our fight for justice."
“I am proud of our State and civil rights leaders for acting to make our country more just,” Seattle Mayor Jenny Durkan. “As a mom and as an American, it is heartbreaking to watch our country literally tear children from their mothers. As a former federal law enforcement leader, I know this policy is not only unjust - it makes us less safe. This cruelty serves no purpose. The world is watching as the Trump administration continues to misrepresent the law, debase our values, and leave families and children devastated and traumatized. We must stand together against these actions.”
Gathered outside the federal prison where dozens of affected parents have been held, Ferguson and Inslee announced the upcoming lawsuit at a press conference today, along with Northwest Immigrant Rights Project (NWIRP) Executive Director Jorge Barón. Barón also announced that NWIRP intends to file a similar lawsuit in the near future on behalf of individuals affected by the policy.
The states’ lawsuit will allege the Administration has violated the constitutional due process rights of the parents and children by separating them as a matter of course and without any finding that the parent poses a threat to the children. The policy is also irrationally discriminatory, in violation of the constitutional guarantee of equal protection, because it targets only people crossing our southern border, and not anyone crossing the Northern border or entering the United States elsewhere. The states will also argue that this policy once again violates the Administrative Procedure Act, because it is arbitrary and capricious, and that the Administration has been violating U.S. asylum laws by turning people away at ports of entry.
The states will ask the President to comply with the law and the Constitution. For starters, by correcting the egregious flaws in the executive order, starting by creating a process to reunify the thousands of families torn apart by a cruel and unconstitutional policy, and immediately halting the practice of refusing to accept asylum petitions at the border.
Problems with executive order
Washington and the states were poised to file the lawsuit today. Despite President Donald Trump’s previous claims that an executive order could not reverse his family separation policy, on Wednesday he issued an order purporting to do just that.
Following a close review of the order, the Attorney General’s Office found two main problems.
First, the order does nothing to reunify families already torn apart by the Trump Administration’s policy.
Second, the order is riddled with so many caveats as to be meaningless. For example, the order requires appropriations, although the total amount is unknown, as is the timeline for when or if such an appropriation would happen. It also relies on a federal judge approving a plan to indefinitely detain children, a scenario Ferguson described at the press conference as unlikely.
Mothers, children detained in Washington
Of the approximately 200 immigrants detained in Washington as of June 19, 2018, 174 are women, and more than a third of those women are mothers forcibly separated from their children. Those children range in age from one year old to teens. Most of these mothers have been in detention for more than two weeks and many for more than a month.
Most have not spoken with their children in weeks, and the federal government has not provided the mothers with any information regarding the whereabouts or well-being of their children.
When interviewed by Attorney General’s Office investigators, these women described the horrific and inhumane conditions at the Border Patrol facilities where they were previously detained. Parents and children were held in rooms nicknamed “ice boxes” because they were so cold. Mothers told AGO investigators there was little to no food, and described drinking water out of a bathroom sink or toilet.
One mother at the SeaTac prison brought her 8-year-old son from El Salvador, seeking asylum because of death threats from a violent gang. Instead of finding safety, her son was taken as soon as she entered the country. She was told that having her child taken was “the price you have to pay” for coming here, and to “tell everyone back home not to come here, or we will take their children just like we took yours.”
She last saw her child 31 days ago, and has no idea where he is, who is taking care of him, or whether he is safe.
On April 6, 2018, Attorney General Jeff Sessions announced a new “zero tolerance” policy on the United States’ southern border. Instead of making case-specific evaluations of individual cases, respecting due process rights and family integrity, the Trump Administration began prosecuting all possible immigration crimes, detaining all accused adults, even those with a legitimate asylum claim. The intended and acknowledged effect of this policy has been the separation of parents and children at the border.
The Trump Administration has been clear that the purpose of the forced separation policy is not to protect children, but rather to deter potential immigrants from coming to the United States. As Senior White House adviser Kellyanne Conway said recently: “Nobody likes seeing babies ripped from their mothers’ arms … but we have to make sure that [the Department of Homeland Security’s] laws are understood through the soundbite culture that we live in.”
Solicitor General Noah Purcell and Assistant Attorney General Laura Clinton are leading the case for Washington.
The states set to join Ferguson’s lawsuit include: Massachusetts, California, Maryland, Oregon, New Mexico, Pennsylvania, New Jersey, Iowa, Illinois, Minnesota, the District of Columbia, Rhode Island and Virginia. Ferguson anticipates that additional states will join the litigation when it is filed.
Inslee and Ferguson have been seeking information from the Trump Administration on its “zero tolerance” policy — including where the children of the mothers detained at SeaTac are being held, and whether detainees have been advised of their legal rights — since June 7. In a follow-up letter June 18, Inslee and Ferguson also asked that the Trump Administration “stop lying” about the origins of the family separation policy.
Ferguson’s office earlier this week called for individuals affected by the Trump Administration’s family separation policy to contact his office’s Wing Luke Civil Rights Unit at 1-844-323-3864. Affected individuals are still encouraged to reach out. The Attorney General’s Office will not ask about immigration status.
The Attorney General’s Office prevailed in all six cases against the Trump Administration that are completed and there are no more appeals. That does not include three additional successful outcomes that have been or could be appealed, including blocking President Trump’s ban on transgender individuals serving in the military and his attempt to end the Deferred Action for Childhood Arrivals (DACA) program.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Press Conference Audio (MP3)
Brionna Aho, Communications Director, (360) 753-2727; firstname.lastname@example.org