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Duchitanga v. Lloyd

The New York Civil Liberties Union, American Civil Liberties Union, National Center for Youth Law, and the law firm Morrison & Foerster seek to represent a national class of migrant children whose release to parents or other sponsors has been delayed due to a new policy requiring fingerprint background checks.

The length of time immigrant children are detained in government custody is growing dramatically due to new requirements for fingerprinting and an enormous resulting backlog. Delays in releasing children have contributed to the total number of migrant children in government custody ballooning to its highest level in history.

The Office of Refugee Resettlement (ORR), the federal agency responsible for immigrant children in government custody, began requiring fingerprint checks of children’s parents and all of their household members in June 2018, shortly after adopting new policies to share fingerprints with Immigration and Customs Enforcement (ICE) for enforcement purposes. Fingerprint-based background checks now add weeks and months to the length of time migrant children are detained. Family members must wait weeks for appointments to have their fingerprints taken at one of the limited sites ORR has set up, and then wait weeks longer – and in some cases months longer – for results to be processed.

Prior to ORR’s new policy, only non-parent relatives and non-relatives seeking to sponsor children in ORR custody were required to submit fingerprints for background checks. Household members did not need to be fingerprinted unless there was a special concern for the safety of a child. Because more than 40 percent of children in ORR custody are released to a parent, the June 2018 changes have hugely increased the number of people who have to be fingerprinted, but ORR has not taken the necessary steps to ensure that fingerprinting can occur in a timely fashion.

The lawsuit seeks to represent a class of more than one thousand children in government custody whose release is contingent on the fingerprint-based background check of their sponsor or the sponsor’s household members. The length of time that children spend in government custody has spiked precipitously in recent months, leading to overcrowded shelters. To accommodate the swelling population, the agency is now transferring hundreds of children, many of whose releases are pending the results of fingerprint checks, from shelters around the country to a “tent city” in the Texas desert that is not licensed by state child welfare authorities.

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