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Judge Questions Border Patrol Stand on Not Being Responsible for Children's Welfare at Migrant Camps

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Two small girls in pink coats sit outside a tent with people in the background.
Asylum seeking migrants wait to be processed by the US Border Patrol after crossing from Mexico at a makeshift camp next to the US border wall on Dec. 13, 2023 in Jacumba Hot Springs, California.  (Qian Weizhong/VCG via Getty Images)

A federal judge on Friday sharply questioned the Biden administration’s position that it bears no responsibility for housing and feeding migrant children while they wait in makeshift camps along the U.S-Mexico border.

The Border Patrol does not dispute the conditions at the camps, where migrants wait under open skies or sometimes in tents or structures made of tree branches while short on food and water. The migrants, who crossed the border illegally, are waiting there for Border Patrol agents to arrest and process them. The question is whether they are in legal custody.

That would start a 72-hour limit on how long children can be held and require emergency medical services and guarantees of physical safety, among other things.


U.S. District Judge Dolly Gee said evidence presented by migrant advocacy groups appeared to support the definition of legal custody. “Are they free to leave?” she asked.

“As long as they do not proceed further into the United States,” answered Justice Department attorney Fizza Batool.

Gee, who was appointed by former Democratic President Bill Clinton, acknowledged it was complicated — “like dancing on the head of a pin” — because some children arrive on their own at the camps and are not sent there by Border Patrol agents.

Advocates are seeking to enforce a 1997 court-supervised settlement on custody conditions for migrant children, which includes the time limit and services including toilets, sinks and temperature controls. Gee did not rule after a half-hour hearing in Los Angeles.

Children traveling alone must be turned over within 72 hours to the U.S. Health and Human Services Department, which generally releases them to family in the United States while an immigration judge considers asylum. Asylum-seeking families are typically released in the U.S. while their cases wind through courts.

The legal challenge focuses on two areas in California: one between two border fences in San Diego and another in a remote mountainous region east of San Diego. When the number of migrants was particularly high last year, they waited for several days to be arrested and processed by overwhelmed Border Patrol agents. From May to December, agents distributed colored wristbands to prioritize whom to process first.

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Advocates say the Border Patrol often directs migrants to the camps, sometimes even driving them there. Agents are often seen nearby keeping a loose watch until buses and vans arrive.

The Justice Department, which rejects advocates’ label of “open-air detention sites,” says smugglers send migrants to camps. It says agents giving them water and snacks is a humanitarian gesture and that any agent who sends, or even escorts, migrants there is “no different than any law enforcement officer directing heightened traffic to avoid disorder and disarray.”

The Border Patrol generally arrests migrants at the camps within 12 hours of encountering them, down from 24 hours last year, Brent Schwerdtfeger, a senior official in the agency’s San Diego sector, said in a court filing. The agency has more than doubled the number of buses in the San Diego area to 15 for speedier processing.

On Friday, 33 migrants, including two small children, waited between border walls in San Diego until agents came to ask they empty their pockets, remove shoelaces and submit to weapons searches before being taken in vans to a holding station. They were primarily from China and India, with others from Afghanistan, Azerbaijan and Georgia. Agents spoke to them in English.

Pedro Rios, a volunteer with American Friends of Service Committee, delivered turkey sandwiches and hot tea and coffee through spaces in the border wall. He gave pain relievers and ointment to a limping Chinese woman who had fallen from the wall.

Kedian William, 38, said she left a 10-year-old daughter with family in Jamaica because she couldn’t afford the journey, including airfare to Mexico, but that asthma would have made the trip difficult for her child anyway. She planned to apply for asylum and settle with family in New York, having fled her home after her sister-in-law, her sister-in-law’s husband and their child were killed last year.

William said she attempted to reach the camp on Wednesday but fled back into Tijuana to avoid Mexican authorities in pursuit. She tried again a day later, waiting six hours on U.S. soil for agents to pick her up for processing.

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