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Key arguments in Washington’s recently filed family separation lawsuit

On Tuesday Attorney General Bob Ferguson filed Washington’s latest lawsuit against the Trump administration in Federal District court in Western Washington. With the lawsuit, announced last week with a coalition lawmakers and legal services attorneys, Washington leads a coalition of 17 states and the District of Columbia, in challenging the recent Justice Department’s “zero-tolerance” policy regarding prosecution of illegal entries and its resulting consequence of family separation.

The lawsuit seeks to enjoin the forced family separations that have been in the news, as well as a variety of disturbing alleged practices including:

  • Immigration officials’ refusal to even accept even lawful claims of asylum at the Southern border, citing that the US is “full;”
  • Leveraging family separation to coerce immigrants to withdraw their asylum claims;
  • Holding children in makeshift facilities and mandating “no-touch” policies; and
  • Attempts to shield child detention facilities from state licensing requirements.

It also attacks President Trump’s recently signed “Affording Congress an Opportunity to Address Family Separation Order” which the lawsuit claims is merely “illusory,” does nothing to ensure the government will not return to the family separation policy, and instead is just as damaging to children and families as the original policy as it directs the Justice Department to seek the ability to indefinitely detain families. These practices, the suit argues, violate Fifth Amendment guarantees of substantive and procedural due process and equal protection of laws, the Administrative Procedures Act, and federal asylum laws.

Though no hearings are yet scheduled, the filing states that motions for injunctions will be forthcoming. It requests that the court restrain the Administration from continuing the controversial practices and issue an interim order directing the government to immediately reunite families previously separated by the policies.

In a statement issued today about the lawsuit, AG Ferguson noted Washington’s successful history litigating against Trump Administration policies.

“This case, like all our cases against this Administration, says something important about who we are as a people,” Ferguson said. “We will stand up for the Constitution, basic decency and fundamental American values. My office has not yet lost a lawsuit to the Trump Administration, and we do not intend to lose this one.”

The lawsuit comes on the heels of the US Supreme Court’s decision upholding President Trump’s September 2017 version of the “travel ban.” The decision supports the administration’s claims of great executive discretion in the administration of immigration laws when tied to national security concerns. It remains to be seen how the ruling will impact this most recent round of Washington litigation.