By Erin Durkin and Jillian Jorgensen

New York Gov. Andrew Cuomo will sue the federal government over its policy of separating immigrant children from their parents at the southern border, as more than 70 of those children have wound up in facilities in New York State _ with a federal source telling the New York Daily News the number of separated children here is even higher, 311.

"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," Cuomo said on a conference call with reporters Tuesday afternoon.

Cuomo said the children are being held in private facilities, including three in the Bronx, that are contracted by the federal government to provide services to unaccompanied alien children _ minors who cross the border alone and who the Office of Refugee Resettlement temporarily houses while seeking family sponsors.

"But these are not unaccompanied alien children. These are children who were separated from their parents," Cuomo said.

A federal source told The Daily News that the ORR's population of unaccompanied minors in New York State's lower 14 counties was 1,321 as of Monday _ but of those, 311 are actually in shelters as a result of separation from family held in detention centers. All of the facilities in the area house boys and girls, except one that houses boys 14 to 17, the source said.

Cuomo said that while the state has oversight of the facilities, they have been told they cannot provide services to the children in them without approval from the Department of Health and Human Services, which he said told the state would take weeks.

As for the suit, Cuomo said he intends to bring it in the next two weeks and that it would be based on three legal theories.

"First that it's a violation of the constitutional rights of the parent to the care, custody and control of their children," he said, and a violation of their due process as the children were removed without any hearings.

The second theory, he said, is the policy violates the terms of the 1997 Flores settlement that set national standards on the detention, release and treatment of children in immigration detention "and underscores the principle of family unity."

And third, he said, "it is outrageous government conduct."

Cuomo said the state had the legal right to bring such a suit.

"New York has standing, these agencies have standing, because there are children in New York who are, who have been taken from their parents without due process," Cuomo said.

His counsel, Alphonso David, said, "The state is vindicating due process, familial association rights, of the children who are located in New York State. In addition New York State is protecting the health and welfare of children within its jurisdiction."

Some of those children are being held at MercyFirst in Syosset, L.I., as reported Monday.

"We have about 10 facilities in the state. We haven't spoken with all of them," Cuomo said. "We know there are over 70 children just by the ones that we have talked about, but they are in Dobbs Ferry, Lincolndale, Yonkers, Irvington, three in the Bronx, one in Syosett and one in Kingston."

In a follow-up interview with the Daily News, David declined to characterize these facilities, saying they offer varying degrees of security and services. The facilities are co-located in facilities that provide state-certified foster care programs, David said, but the immigrant children are not part of the state's foster care network. Instead, the agencies contract directly with the federal Office of Health and Human Services and its Office of Refugee Resettlement.

A second federal source said the HHS-funded facilities in New York for unaccompanied minors were not comparable to conditions at the facilities along the border, which include chain-link cages.

Typically, unaccompanied minors arrive in New York because they have family nearby, and they are held in such facilities while the government looks for relative sponsors to place them with.

Children's Village in Dobbs Ferry _ which has a contract with ORR to provide such services_ describes its program as a "family-like and nurturing environment," that offers education, recreation, medical care and family reunification. It declined to comment on its unaccompanied minors program or whether it had children who were separated from their parents at the border.

In the Bronx, Lutheran Social Services and Catholic Guardian Services have federal contracts to provide services and shelter to unaccompanied minors. The communications office at Lutheran Social Services said it could not answer questions about whether it housed children separated at the border; Catholic Guardian Services did not return a message left Tuesday afternoon.

Cuomo was not alone in terms of ripping the federal policy Tuesday.

"It's horrible to begin with if a child is taken from their parent even in the same town in Texas and held apart for days," New York Mayor Bill de Blasio said at an unrelated news conference. "But it's much much worse if they're separated by 1,000 miles, and you have no idea when that family's going to get reunified. And that's what we fear we're seeing, and we just have to do everything we can to stop it."

De Blasio, who said he is considering visiting the border, said if visiting a facility here would help, he'd also consider that.

"I want to do whatever I can to stop this broken, inhumane policy," said, calling the border the immediate issue. "I also want to see anything we can do to stop New York City from being used as a place to send children separated from their parents."

Former council speaker Melissa Mark-Viverito _ who just returned from a trip to the southern border _ said it was as if the children had been "disappeared."

"It tells you the enormity of this issue," she said of having to house children separated at the border all the way in New York. "That's what that tells you."

Public Advocate Letitia James also ripped the policy, as she held a baby following an unrelated news conference on childcare.

"It is unconscionable in this country that we are basically snatching babies from the arms of their families, their mothers," she said. "We should not be cooperating in this policy that separates families."

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