Governor's Action Follows Detention of Children on Long Island
Earlier today, Governor Andrew M. Cuomo announced New York State intends to file a multi-agency lawsuit against the Trump Administration on the grounds that the federal government is violating the Constitutional rights of thousands of immigrant children and their parents who have been separated at the border. We now know of more than 70 children who are staying in federal shelters in New York State and that number is expected to increase as other facilities are contacted. The Governor is directing the Office of Temporary and Disability Assistance, the Department of Health and the Office of Children and Family Services to commence legal action against the federal government's "Separation of Families" policy. Following the callous and inhumane treatment of immigrant families at the border, New York is suing to protect the health and well-being of children being held at least 10 different facilities across the state and at others throughout the nation. More information is available here.
AUDIO of the announcement is available here.
A rush transcript of the Governor's remarks is available below:
Governor Cuomo: Thank you very much. As everyone knows, the federal government, under the Department of Justice, changed their policy on April 7 to the "zero tolerance" policy where they are now separating children at the border and I believe, personally, that the act is inhumane, it's extortive, it's un-American. Ironically, it's opposed to the family value that the Republican party has always espoused. I believe it's politically motivated and they're being used, the children are being used, basically as a bargaining chip with Congress to get what the administration wants.
I worked in the federal government for eight years, I'm Governor of the State of New York. I'm accustomed to all types of legislative negotiations. I've never seen children being used as a bargaining chip in this kind of negotiation. The estimate is that 2,000 children are being held. Some of those children are being held in facilities in the State of New York. These are private facilities that provide services to children and the federal government has contracted with a number of facilities in New York and placed children in those facilities. They're doing it under what's called the UAC program, the Unaccompanied Alien Child program. But these are not unaccompanied alien children. These are children who were separated from their parents. We know that there are over 70 children currently in New York facilities. Now there's been a lot of talk about the morality of this practice. But we also believe that this practice is illegal and we are intending to bring suit against the federal government on a legal course of action that is grounded in three theories.
First, that it's a violation of the constitutional rights of the parents to the care, custody, and control of their children. This is a well-founded principle. It is in state constitutions, it's in the federal constitution, it is a fundamental right, which means it applies to people who are not citizens of the country. So it would apply in this case. The courts, all the precedents are very clear that the best interest of the child is what governs. The presumption is that the parental care is in the best interest of the child, unless the government can prove otherwise. And it is a very high bar for the government to prove that it's not in the best interest of the child to be in the care, control, and custody of the parent. In this case, it is a clear violation of due process because there was no intervention, there was no judicial finding, the children were summarily taken from the family. And again, it's a fundamental right. State constitutions, federal constitutions, and it is clearly being violated.
Second theory, is that it's a violation of the terms of the 1997 Flores settlement that set national standard regarding the detention, release, and treatment of all children in immigration detention and underscores the principle of family unity. These actions are violative of the 1997 Flores settlement. Third theory is that it is outrageous government conduct and there is an outrageous government conduct doctrine. The Supreme Court has expressed openness to the idea that, "it may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction."
And clearly that day has come. We've had a number of experiences with ICE in this state where I believe they have been turned into a political police apparatus. We had a situation in Rome, New York on April  where they trampled an immigrant's rights without a warrant. Went onto a farm, grabbed a worker, left. Unidentified. Never showed the farmer a piece of paper. They just trampled the immigrant's rights as they trampled the farmer's field. We're involved in a situation now that happened on June  where they detained Pablo Villavicencio, who was a pizza delivery person delivering pizza in Brooklyn, married, two children, in New York, and he has been detained. They moved to deport him immediately. We intervened through what we call our Liberty Defense Project. We provided counsel and we put that off, but it's just another example of the overzealous activity of ICE in pursuing the President's political mandate. The separation between police powers and political wishes is sacrosanct in this country, and I think that's being violated.
You should also know that the State regulates the facilities that the federal government is using and the State offered health services and mental health services to these children. Obviously it's traumatic for a child to be separated from their parents and the State has been informed that the federal government has essentially gagged the facilities and that if we want to provide any services to the children, we'd have to go through the federal government and it's a protracted process that would take weeks. Why the federal government would want to be in a position to stop a state from offering mental health services, support services, for young children suffering trauma just adds further insult to further injury. We're going to sue through a multi-agency coalition, the Office of Temporary and Disability Assistance, what we call OTDA, the Department of Health, and the Office of Children and Family Services on the grounds that I mentioned earlier. So politics aside, philosophy aside, children have legal rights. Parents have legal rights. That's established firmly in the federal and state constitutions and in case law. They have fundamental rights. They apply whether they're documented, undocumented, short, tall, Mexican, seeking asylum, or not seeking asylum. Those fundamental rights apply and we believe they've been violated.