Migrant Youth Class Action Holds Government Accountable, Sparking Landmark Reforms
Mishan Wroe - Senior Attorney (Immigration), National Center for Youth Law
Settlements will significantly expand the rights of three classes of youth in federal immigration custody.
When Benjamin first entered federal immigration custody, he and his brother were forcibly separated from their mother under Trump’s Zero Tolerance policy. Benjamin was just 9 years old. It was the first time he had ever been separated from his mother’s care. The one protective factor Benjamin had at this extraordinarily traumatic moment in his life was his brother, with whom he was sent to a shelter in Texas.
Tragically, the shelter where he and his brother were sent quickly decided that Benjamin’s behavior and disabilities – autism spectrum disorder, developmental delays, and limited verbal abilities – made him too difficult to care for and they transferred him to a residential treatment center. This transfer forced a second family separation as Benjamin was now completely alone.
While his brother was released relatively quickly to his grandmother’s care, Benjamin stayed in custody for months and was prescribed several psychotropic medications, without parental consent. The drugs left him so lethargic he was unrecognizable to his mother when she was finally able to see him.
Sirena endured a similar fate in federal immigration custody. She came to the United States with her siblings when she was 14 years old. Sirena’s parents, with whom she hoped to reunify in California, completed two home studies to ensure they were able to care for Sirena and her siblings, receiving positive recommendations from both.
The government released Sirena’s siblings to her parents but refused to allow Sirena to join them, citing Sirena’s mental health needs. Sirena’s prolonged separation from her parents upset her so severely that she was hospitalized twice for depression and self harm. She too was prescribed several psychotropic medications without parental consent. The government required Sirena to be “stable” before release, but at the same time exacerbated her distress with prolonged detention in federal custody and separation from her siblings and parents. Ultimately, the government forced her to remain in custody for another four months at a residential treatment center before she was finally released.
Too many youth, like Benjamin and Sirena, were held in restrictive, jail-like settings, with no opportunity for appeal of their placements while being denied release.
The National Center for Youth Law, the Center for Human Rights and Constitutional Law, UC Davis Law Immigration Clinic, and Cooley LLP filed Lucas R. v. Becerra in 2018 to stop these unnecessary, traumatic separations. Too many youth, like Benjamin and Sirena, were held in restrictive, jail-like settings, with no opportunity for appeal of their placements while being denied release to loving sponsors — all without recourse. Additionally, youth with disabilities, including those prescribed psychotropic medications, were discriminated against because of their disabilities and were denied opportunities to participate meaningfully in their healthcare decisions.
In November 2022, two of the five claims brought by Plaintiffs in the Lucas R. litigation were resolved by our victorious motion for summary judgment and the preliminary injunction that followed.
In January 2024, the district court granted preliminary approval of three groundbreaking settlements to resolve the remainder of the Lucas R. case. These settlement agreements will provide new resources and protections by expanding the rights of three classes of youth in immigration custody: (1) youth with disabilities, (2) youth prescribed psychotropic medication, and (3) youth who seek assistance of legal counsel.
The settlements not only represent much-needed reform, they also highlight the power youth hold when they share their stories and use their experiences to hold accountable those in power.
The three settlements in Lucas R. v. Becerra will hopefully prevent future children from enduring these same traumas. Some key details of each settlement:
The Disability Settlement compels the government to conduct a needs assessment across its national network of care providers and develop a plan to address gaps in identification of youth with disabilities.
The Disability Settlement
Compels the government to conduct a needs assessment across its national network of care providers and develop a plan to address gaps in identification of youth with disabilities, services provided to youth with disabilities, and supports available to youth with disabilities.
Requires the government, for the first time, to identify and track youth in its custody with disabilities, and includes new requirements for conducting disability evaluations.
Mandates the creation and implementation of service plans to ensure that youth can fully engage in programs in the most integrated and least restrictive setting.
Prohibits the government from unnecessarily delaying release to family members because of a youth’s disability.
Forces the government to consider and document reasonable modifications to enable youth to remain in less restrictive placements.
Requires the government to consider the benefits of community placement in making release decisions.
The Psychotropic Medication Settlement
Compels the government, for the first time, to follow an informed consent protocol, ensuring that youth and their families can meaningfully participate in the consent process before the government administers psychotropic medication.
Requires the government to protect children and consenters from retaliation for withholding or withdrawing consent for psychotropic medications.
Creates a Centralized Concurrence Unit to address cases where informed consent cannot be obtained.
Requires internal oversight of the administration of psychotropic medications across the Office of Refugee Resettlement (ORR) system and sets standards for review of youth prescribed high doses or multiple medications.
All children deserve protections that promote their health and well-being. Photo by Jenn Mishra at Wits End Photography.
The Access to Counsel Settlement
Protects attorneys from retaliation for representing class members with respect to placement, release, custody, and/or the administration of psychotropic medications.
Ensures youth have unobstructed access to attorneys within specified timeframes.
Compels the government to provide attorneys with needed case updates and client documents within specified time frames, including provisions for expedited case file requests.
Creates a process to receive and respond to attorney complaints related to legal service provision at ORR’s care provider facilities.
No child should have to endure what Benjamin, Sirena, our other named class members, and thousands of young people in federal immigration custody have experienced. It is unconscionable that this is the way children seeking refuge are treated after arriving in our country.
All children deserve protections that promote their health and well-being. We are immensely grateful for the bravery of our named plaintiffs and deeply hopeful that their efforts will translate into longstanding change.