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NYCLU Wins Injunction to Halt Prolonged Detention of Immigrant Youth

Tina Vasquez

In granting the preliminary injunction, U.S. District Judge Paul Crotty observed that the policy was "at the zenith of impermissible agency actions.”

A federal judge granted a preliminary injunction on Wednesday, ending an Office of Refugee Resettlement (ORR) policy that subjected children to prolonged detention, which will have a far-reaching impact for all undocumented children in federal custody.

In February, the New York Civil Liberties Union (NYCLU) sued ORR Director Scott Lloyd on behalf of a Central American asylum-seeking teen known as LVM, who was subjected to prolonged detention as a result of a policy implemented by Lloyd. As a recent series at Rewire.News highlighted, the policy required Lloyd personally approve any release to a sponsor of an immigrant child that had at one time been in heightened supervision custody placement. But Lloyd’s decision to implement the policy was made without any analysis or even a count of how many children would be affected by it. In a deposition with the NYCLU attorneys, Lloyd said that the only documents he considered before instituting the policy were news reports about the criminal activity of immigrant minors. In other words, the sole basis of Lloyd’s decision to implement his new policy is the rhetoric employed by the Trump administration conflating immigrant minors with violent gang members.

In granting the preliminary injunction, U.S. District Judge Paul Crotty observed that the policy was “at the zenith of impermissible agency actions.” Further, the judge’s order noted the policy was subjecting plaintiffs in the case to “suffering and irreparable injury.” He then granted the NYCLU’s request for class action status.

Before the federal judge’s decision Wednesday, Paige Austin, a staff attorney at the NYCLU and one of the attorneys litigating the class action LVM v. Lloyd, told Rewire.News that the current statute says the government has to promptly release kids. Now that there is a preliminary injunction, it could “have a broad impact because it’s the same statute governing the detention of kids all over the country.”

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“Kids in our [class action] are kids that have been in heightened supervision settings, but the same statute applies to all kids in ORR custody, including kids in foster care or kids who have been separated from their parents,” Austin said.

The statute Austin is referencing is the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which grants legal protections to children in ORR custody and tasks the agency with ensuring they are “promptly placed in the least restrictive setting that is in the best interest of the child.” According to NYCLU’s lawsuit, “ORR has never promulgated regulations under the TVPRA. The only public guidance on ORR’s detention and release procedures is a guide that has existed for at least a decade but was not published online until 2015.” ORR also edits and amends its guide “as often as once a week and does so without any explanation or announcement of the changes” and “regularly advises its staff and service providers of nonpublic changes in policy by email or phone,” according to the NYCLU.

“TVPRA is very much in the crosshairs of the Trump administration, they keep saying that it’s a problem and they want to repeal it,” Austin said. “We think that even though it remains on the books, [the Trump administration is] subverting it pretty actively by refusing to release kids in many instances. We’re asking the judge to put some teeth in the statute and order the government to comply with it.”

In a 2016 review of ORR’s placement practices, a subcommittee of the U.S. Senate Committee on Homeland Security and Governmental Affairs found that ORR had “failed to adopt and maintain a regularized, transparent body of policies and procedures concerning the placement of” unaccompanied immigrant children and criticized ORR for what it called “[s]etting governmental policy on the fly” in a manner “inconsistent with the accountability and transparency that should be expected of every administrative agency.” These issues have only worsened under the Trump administration.

Lloyd’s policy affected hundreds of young people like LVM, the class representative in the lawsuit. LVM was detained in ORR custody for seven months. He was first arrested by Immigration and Customs Enforcement (ICE) in a raid after officials at Bellport High School, where he was a student, accused him of gang membership.

Once teens like LVM are labeled as gang members and placed in ORR custody, they are funneled into high-security, prison-like facilities that are not like the shelters and group home settings overseen by the agency. As a result of being detained in this high-security setting, immigrant minors have been subjected to prolonged detention because of Lloyd’s policy, which he implemented within hours of becoming ORR director, the NYCLU says.

In states like New York, where dozens of Central American teens on Long Island have been funneled into the school-to-deportation pipeline, children are now detained for an average of eight months. Twenty percent have been detained for over a year. The NYCLU estimates that since Lloyd took the helm of ORR, his policy has affected more than 700 children. Only 12 percent of these young people have been released to an adult sponsor, a stark contrast to the 90 percent of children in ORR custody who were released within 35 to 45 days in previous years.

Earlier this month, the NYCLU reported that the federal government informed them it was processing the children in ORR custody subjected to Lloyd’s policy more quickly, likely as a direct result of the lawsuit. Still, Austin maintained that Lloyd’s policy was “definitely arbitrary” and that it included no protocol or standard for how he was making his determinations for release. It was like “flipping a coin,” Austin said.

Lloyd has become an infamous ideologue in the Trump administration, most well-known for his seemingly never-ending battle to block immigrant teens in ORR custody from accessing abortion care. His handling of abortion access has led to a firestorm of publicity, with advocates accusing him of ushering “anti-choice fanaticism” into the U.S. immigration system and members of Congress calling for him to be fired.

Denying young people in ORR custody access to reproductive health services has long been an issue, but Lloyd’s director-level review policy was unprecedented. Austin told Rewire.News earlier this month that she saw similarities between LVM v. Lloyd and Azar v. Garza, the lawsuit on behalf of a young woman in ORR custody Lloyd attempted to block from accessing abortion care. In LVM v. Lloyd, for example, the NYCLU found that Lloyd requests to see every incident report in which a child in custody has had behavioral issues. In Azar v. Garza, the ACLU found that Lloyd receives a weekly spreadsheet containing information on every pregnant woman in ORR’s custody who has requested an abortion, tracking the fetus’ gestational age.

“It seems very much about Scott Lloyd and his whims,” Austin said. “It’s really an intense level of involvement and he doesn’t have any qualifications to do this.”

This was echoed by NYCLU Executive Director Donna Lieberman in a statement following the judge’s ruling.

“Today the court ordered the Trump regime to end the cruel policy that gratuitously prolonged the separation of immigrant children from their families and upended their lives,” Lieberman said. “ORR can no longer keep children detained at the whim of a director who has demonstrated little expertise and less consideration for the well-being of children.” 

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