The lawsuit will be filed “imminently” and will challenge the constitutionality of the family separation policy and President Donald Trump's new executive order meant to replace it.
Flanked by Gov. Jay Inslee, immigrant-rights leaders, state lawmakers and others, Attorney General Bob Ferguson announced Thursday that Washington will lead a coalition of nearly a dozen states that will sue the Trump administration over its “zero tolerance” policy of separating immigrant children from their parents during illegal border crossings.
The lawsuit, announced in front of the Federal Detention Center in SeaTac, will challenge the constitutionality of the family separation policy and President Donald Trump’s new executive order meant to replace it, Ferguson said. The suit will be filed “imminently” in federal court in Seattle, he said, but he did not give a specific date other than “within the next few business days.”
“We’ll allege that the administration is violating constitutional due-process rights of the parents and children by separating them as a matter of course and without any findings that the parent poses a threat to the children,” Ferguson said. “The policy is also irrationally discriminatory in violation of constitutional guarantees of people protection, because it only targets people crossing our southern border, not any other entrance to the United States.”
A Department of Justice spokesperson in Washington, D.C., who handles immigration issues did not immediately respond to requests for comment about the lawsuit Thursday.
The other states joining the lawsuit are Oregon, California, Massachusetts, Maryland, New Mexico, Pennsylvania, New Jersey, Iowa, Illinois and Minnesota, Ferguson said. Additional states may also join the suit, he said.
Ferguson’s office had intended to file the lawsuit Thursday, but he is now modifying the legal complaint to address President Trump’s executive order, signed on Wednesday, that reversed the administration’s policy and seeks to detain families together for potentially more than 20 days. Ferguson described the executive order as “riddled with so many caveats that it is essentially meaningless,” contending it does not address children in custody who’ve already been separated from their families.
Jorge Barón, executive director of the Northwest Immigrant Rights Project (NWIRP), also said at Thursday’s news conference his group will separately file its own suit “on behalf of the parents” separated from their children who are now being held in Washington state. Barón stressed that despite the about-face with the executive order, “family separation has not ended.”
“That is why we are ready to continue the legal fight, until those parents are reunited with their children and to make sure they are released from detention and have the opportunity to go to court,” he said.
NWIRP so far has completed screenings of 155 of the 200 detained asylum-seekers, some of whom remain held in the SeaTac detention center, while others have been transferred to the Northwest Detention Center in Tacoma. Of those 200, at least 45 are parents who have been separated from their children, Barón said.
In addition, those being held in the SeaTac facility have not been provided initial screenings for asylum after more than a month, he said.
Under Trump’s policy, more than 2,300 children were separated from their families at the border from May 5 through June 9, according to the federal Department of Homeland Security. At least nine of those children are being held in undisclosed locations in Washington.
None of the nine minors in Washington are related to the adults who have been detained here under the policy, the officials said.
Ferguson said members of his legal team met Thursday with many of the adult detainees, whom the officials described as people fleeing their countries because of fear of physical harm or threats against them. One woman from El Salvador fled her country with her 8-year-old son after both received death threats from a violent gang, Ferguson said. She and her son were separated and she hasn’t seen him in 31 days, he said.
“She has no idea where he is, who is taking care of him,” Ferguson said.
Inslee said Thursday that state social workers have met and interviewed the nine children held in Washington.
“We have looked at their conditions,” Inslee said. “But I want to say it doesn’t matter how good their physical conditions are, their emotional condition is they have been tortured, because separation from their parents is torture.”
The governor added both he and Ferguson have twice asked in writing “legitimate questions” of the Trump administration about where separated children and their parents are located, and how they will be able to communicate. Inslee said the administration has “refused to answer” their questions, forcing the state to take legal action.
Facing mounting pressure, including from some Republican lawmakers, Trump signed the executive order to roll back family separations and instead called on federal immigration-enforcement authorities to “maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.”
Trump and his administration have blamed Congress for failing to act to fix immigration laws and putting “the Administration in the position of separating alien families to effectively enforce the law,” according the order.
Trump’s order also directed federal Attorney General Jeff Sessions to file a request with the U.S. District of California to modify its 1997 “Flores” consent decree that holds that children can be detained in confinement for only 20 days. In 2014, President Obama also tried to hold immigrant families together indefinitely, though that policy was found in violation of the consent decree.
But Trump’s executive order doesn’t appear to apply to children, such as those in Washington, who have already been separated from their families, leaving state officials, local immigrant advocates, faith leaders and others to question whether the administration has a plan for family reunification.
Ferguson said the lawsuit brought by Washington and the other states will take the position that Trump’s executive order is meaningless because it depends on passage of a congressional appropriation that might not happen, as well as a judge’s ruling to change the Flores decree.
“We do not think a judge is going to significantly alter that settlement,” Ferguson said.
Once filed, the lawsuit will mark the 27th lawsuit brought against the Trump administration by Ferguson, who boasted Thursday, “We haven’t lost one yet.”
Thursday’s news conference in SeaTac also marked the third straight day that Inslee and Ferguson had made announcements questioning or challenging Trump’s “zero tolerance” immigration crackdown.
Both high-profile Democrats have received national attention for fighting Trump administration policies, fueling speculation they may be positioning themselves to run for higher office. Inslee has been mentioned as a potential 2020 presidential candidate; Ferguson is widely expected to run for governor.
On Wednesday, Inslee called the Trump White House “a den of deceit” during a news conference to announce the authorization of $230,000 in emergency funding for the Northwest Immigrant Rights Project to give civil legal aid for people, families and unaccompanied minors. With the Legislature this year approving $1 million in grants for the program, Inslee’s action brought the state’s total to more than $1.2 million.
On Tuesday, Ferguson announced a request that Washington residents contact his office if they are asked to host immigrant children separated from their family as part of Trump’s crackdown, as his office studied whether the state had grounds to challenge the administration’s policy in court. Oregon’s attorney general also made a similar appeal.
Ferguson’s announcement of the coalition’s intent to sue also comes amid rapid changes by the Trump administration regarding its crackdown.
The Washington Post, citing an unnamed senior U.S. official, reported Thursday the administration has instructed Border Patrol agents to stop referring parents who cross borders illegally with children to federal courthouses for prosecution until the U.S. Immigration and Customs Enforcement is able to handle the increased capacity for detaining immigrants.
A Justice Department spokeswoman denied to The Post that there were changes to the “zero tolerance” policy, saying prosecutions would continue.
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