The New York Civil Liberties Union has launched a national putative class action claiming that a Trump administration policy on fingerprint-based background checks for immigrant household members has led to the highest level in history of migrant children being locked up in government custody away from their parents.

Calling the policy and the “predictable” administrative delays that come with it “unconscionable,” the civil rights group filed its lawsuit in the U.S. District Court for the Southern District of New York on Tuesday. The 23-page suit, which the group brought in conjunction with Morrison & Foerster and the National Center for Youth Law, names as plaintiffs six migrant children currently in custody who allegedly have been waiting between two weeks and nearly four months for the results of their sponsors' fingerprint background checks.

In September, the number of migrant children in government custody stood at 12,800, which has been reported as the highest amount ever, Naomi Dann, an NYCLU spokeswoman, said in an email to the Law Journal.

The complaint contends that the Trump administration's fingerprinting requirements, made effective in June, violate the Trafficking Victims Protection Reauthorization Act, a federal statute that requires the prompt release of children from immigration detention.

Moreover, the suit alleges, the requirements also violate constitutional-based due process rights of the children and their parents, the federal Administrative Procedure Act and a 1997 consent decree governing the care of unaccompanied immigrant children known as the “Flores Settlement.”

The Office of Refugee Resettlement, which is the agency responsible for immigrant children in government custody and is part of the U.S. Department of Health and Human Services, said Wednesday in an email that, as a matter of policy, Health and Human Services does not comment on matters related to pending litigation.

ORR began requiring fingerprint checks of children's parents and all of their household members in June 2018, soon after adopting new policies to share fingerprints with Immigration and Customs Enforcement for enforcement purposes, the lawsuit and an NYCLU news release said.

The fingerprint-based background checks are now allegedly adding weeks and months to the length of time migrant children are detained, while family members wait for appointments to have their fingerprints taken at one of “the limited sites” ORR has set up, the NYCLU claims.

Then the family members wait weeks longer—and sometimes months longer—for results to be processed, the lawsuit claims.

“The longer children are detained the more likely they are to suffer irreversible psychological harm, relive trauma, fall behind in school, and, for those who turn 18 in custody, risk being transferred to an adult facility facing deportation proceedings,” said Paige Austin, an NYCLU staff attorney, in a statement. She added that the long delays also  “exposed the [children's] family members to the risk of deportation.”

Prior to implementation of ORR's June policy, only nonparent relatives and nonrelatives seeking to sponsor children in ORR custody were required to submit fingerprints for background checks. Household members didn't need to be fingerprinted unless there was a special concern for the child's safety, the lawsuit and news release said.

Because more than 40 percent of children in ORR custody are released to a parent, the changes have “hugely increased” the number of people who have to be fingerprinted, but ORR has not taken the steps needed to ensure that fingerprinting can occur in a timely fashion, the NYCLU said.

The suit is seeking to represent a class of more than 1,000 children in custody whose release is contingent on the fingerprint-based background check of their sponsor or the sponsor's household members.

Morrison & Foerster, the American Civil Liberties Union and the National Center for Youth Law all filed the lawsuit with the NYCLU and are working the case.  Michael Birnbaum, a Morrison & Foerster partner in New York, noted in a statement made in the news release that “Morrison & Foerster is proud to stand alongside the NYCLU, ACLU, and NCYL as we continue our advocacy on behalf of migrant children.”