Shutdown Won’t Halt Child Refugee Detention Class Action Lawsuits

A Manhattan federal judge says that despite the shutdown, the Trump administration must face two class action lawsuits claiming that detentions of refugee children are unreasonable.

According to U.S. District Judge Paul A. Crotty, there is a “good and sufficient reason” why two class action lawsuits over the detention of refugee children should continue despite the shutdown.

Judge Crotty is the same judge who in June blocked a Trump administration policy that required that individual children be granted top-level approval to be released from detainment by the U.S. Department of Health and Human Services’ Office of Refugee Resettlement.

In particular, Judge Crotty determined that the administration should have to provide two documents requested by the New York Civil Liberties Union during discovery in the two child detention class action lawsuits.

On Dec. 22, the Trump administration began a government shutdown over their demands for $5 billion to fund a wall aiming to limit immigration at the U.S.-Mexico border.

The shutdown is ongoing, and in general, has halted civil litigation over federal policy. However, despite these pauses, some civil cases over federal policy may continue on a case-by-case basis.

On his decision to have the detention class action lawsuits continue despite the shutdown, Judge Crotty stated that “I’m prepared to order a lifting of the stay for good and sufficient reason. Notwithstanding the shutdown, my direction is that you produce the material.”

In one of the detention class action lawsuits, the New York Civil Liberties Union claim that a policy requiring the Office of Refugee Resettlement Director Scott Lloyd to personally approve each application for release has slowed the release process down to an unreasonable degree.

Allegedly, these delays have been harmful and have prevented more than 700 children from being connected with sponsor organizations and families.

In another refugee children detention class action lawsuit, plaintiffs argue that the Trump administration policy of requiring each member of a sponsor family or organization to be fingerprinted has also led to unreasonable delays in the process.

Allegedly, these delays are unlawful and harmful to the children in federal custody. In this process, federal employees must allegedly track down a large number of people to be fingerprinted in the sponsor network of each child.

Judge Crotty did state that fingerprinting those who would sponsor refugee children was “prudent,” but did stress his desire for the litigant over the issue to continue.

He allowed plaintiffs to take discovery of the Office of Refugee Resettlement and of three care providers for refugees. He also allowed Homeland Security and the FBI to study the policy of requiring extensive fingerprinting.

According to government counsel, Jeffrey S. Oestericher of the U.S. Attorney’s Office for the Southern District of New York, the government has already made large improvements to the polices. Oestericher said that those concerned over the delays have “gotten the relief they’ve asked for.”

However, Judge Crotty was unconvinced that sufficient changes had been made. He stated that “the requirements of the ORR seem to come out of the blue. Things go up and down, back and forth. It doesn’t seem to me like it’s a reasoned process. You’re detaining people — and there doesn’t seem to be any good explanation for it.”

The plaintiffs are represented by Paige Austin of the New York Civil Liberties Union.

The Refugee Children Detention Class Action Lawsuits are L.V.M. v. Lloyd et al., Case No. 1:18-cv-01453, and Duchitanga et al. v. Lloyd et al., Case No. 1:18-cv-10332, in the U.S. District Court for the Southern District of New York.