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Judge Rules Border Patrol Must Care for Migrant Children Waiting in Camps

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a little girl runs past trash in front of dilapidated tent in the desert, with more tents and trash in the background
Migrants wait at a makeshift camp in Jacumba Hot Springs, San Diego County, to be processed by the US Border Patrol after crossing from Mexico.  (Qian Weizhong/VCG via Getty Images)

A federal judge in California has ruled that the government is responsible for the well-being of migrant children who are waiting in makeshift encampments on the California side of the U.S.-Mexico border.

U.S. District Judge Dolly Gee issued an order Wednesday evening directing federal agents to stop holding minors at the open-air sites while they wait for their turn to make their case to the U.S. Border Patrol, and to move the children “expeditiously” to facilities better suited for their care.

The ruling came after advocates called on Gee to intervene. They said that the way Border Patrol agents monitor the sites and limit migrants’ movement means children there are effectively in government custody, so the government is legally obligated to protect their welfare. Gee agreed.

Leecia Welch, deputy legal director at Children’s Rights and one of the lawyers representing children in the case, said she was gratified with the court’s ruling.

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“Children were being left to fend for themselves outside in dangerous conditions, without adequate food, without water, without shelter, without medical care,” she said. “By arguing that these children were not in government custody, it basically meant that the government could just kind of wipe their hands of these children and their needs while they were at these sites.”

Lawyers for the government had argued people in the camps were not in custody. They said the Border Patrol did not have a policy of restricting people to the sites and did not maintain constant supervision.

A spokesperson for U.S. Customs and Border Protection, the agency that includes the Border Patrol, said the agency is reviewing the court’s order.

“CBP will continue to transport vulnerable individuals and children encountered on the border to its facilities as quickly as possible,” said CBP spokesperson Jason Givens in an emailed statement.

Not ‘safe and sanitary’: Where did these border camps come from?

The encampments along the border developed over the past year, as thousands of migrants from different countries — who had entered the United States unlawfully — congregated at several locations near the border and waited to be heard by immigration authorities. Most people in the encampments are adults, but some are children traveling alone or with family members. And they’re not trying to run away from the Border Patrol or hide; they’re waiting to ask for asylum.

U.S. Customs and Border Protection says, with the high numbers of migrants, agents don’t have the staff or detention space to process everyone immediately. So migrants have spent hours, or in some cases days, waiting in these outdoor areas.

Some encampments are in the high desert outside of small towns in eastern San Diego County. Others are closer to San Diego, sandwiched between two 30-foot-high fences. Border Patrol agents have provided portable toilets and snacks, while volunteers have delivered food and water and administered first aid.

While the government didn’t create the camps, advocates for the migrant children presented evidence to the court (PDF) that Border Patrol agents often directed, or even drove, migrants to the locations, then monitored them and told them not to leave unless they wanted to be deported.

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Judge Gee ruled that children in the camps “are in the legal custody of CBP because CBP exerts control over their health, welfare and physical movement.”

Gee then ordered the government (PDF) to place children “in facilities that are safe and sanitary and that are consistent with [the agency]’s concern for the particular vulnerability of minors.” And she said the combined amount of time that kids spend in the open-air sites and in Border Patrol stations must not exceed 72 hours.

The order came as part of Gee’s ongoing enforcement of a class action legal settlement, known as the Flores Agreement, that dates back to 1997. The Flores case covers “all minors who are detained in the legal custody of the INS,” referring to the Immigration and Naturalization Service, the nation’s immigration enforcement agency at the time.

The Flores Agreement (PDF) declares that the government shall treat children with “dignity, respect and special concern for their particular vulnerability as minors.” And when kids are arrested, they are to be held in facilities that are “safe and sanitary.”

At a hearing last week, lawyers for the Biden administration argued that the children at the open-air encampments are not under arrest or in Border Patrol custody. They said agents were simply giving directions to better manage people and transport them to Border Patrol stations efficiently. And they said agents are now transporting people out of the camps faster: within 12 hours, on average.

But no one disputed that conditions at the sites are not safe or sanitary. Advocates gave testimony saying they saw children taking shelter from the wind and rain inside porta potties. And they said children suffered medical emergencies without adequate care.

a line of people on a dusty road, with tents in the background and trucks and officials on the side of the road
Migrants waiting to be processed by US Border Patrol near the border in California. (Qian Weizhong/VCG via Getty Images)

Border unequipped for 21st Century migration

The number of migrants arriving at the U.S.-Mexico border has been at historic highs in recent years, though it has declined some since the beginning of this year. During the five months from October through February, more than 57,000 children were encountered by border authorities, slightly fewer than the past three years.

Kathleen Bush-Joseph, a policy analyst at the nonpartisan Migration Policy Institute in Washington, D.C., said the staffing and infrastructure of border enforcement was designed for an earlier era, in the 1980s and ’90s, when mostly single men from Mexico were trying to enter the U.S. to find work.

Today, beefed up enforcement makes it harder to cross undetected. There are few legal pathways for people to come and work or to reunite with family. The U.S. asylum system is backlogged. And migration is on the rise globally, as people flee corruption, repression and economic collapse in their home countries.

“The system does not match our 21st Century immigration needs,” said Bush-Joseph. “And this decision is a reflection of how that fails children and puts them in really dangerous conditions.”

To reduce pressure at the border, she said Congress needs to overhaul the legal immigration system and the asylum process. For starters, she pointed to a bipartisan Senate bill supported by the Biden administration — but abandoned by Republicans after Trump criticized it — that would have created a more streamlined asylum system.

“Under the Senate bill, the process would have been sped up to be done in six months, which would have been a huge difference,” she said.

Meanwhile, Bush-Joseph said, the Border Patrol is struggling to meet the demands of the current situation, especially in the wake of a federal court ruling in Florida last year that ordered officials to spend more time on background checks and issue notices for migrants to appear in court, which has slowed the process at the border. The Biden administration appealed that ruling earlier Friday.

She said the Department of Homeland Security, the parent agency for both CBP and the Border Patrol, will have to scramble to comply now with Judge Gee’s order.

“DHS does try to process kids and family units as quickly as they can. But this could require them to dedicate more officers and move resources around, maybe from other border posts,” she said. “It’s difficult to imagine how they’re really going to be able to dramatically change conditions. And my fear is, numbers increase over the summer. … And it might get worse.”

But Welch, the plaintiffs’ lawyer, said Gee’s ruling was needed to light a fire under border agents and force them to address the children’s welfare with more urgency. And she said the heated political rhetoric about uncontrolled migration at the border is beside the point.

“When children show up in your backyard — whether you’re Democrat or Republican or what[ever] your politics are — most people’s first inclination is to want to make sure they’re cared for,” she said. “So for me, this isn’t really about politics. This is about how we, as a country, want to take care of children.”

Judge Gee also ordered the CBP Juvenile Coordinator to file a report by May 10 on the number of kids still in open-air sites and how the government is making conditions better for children.

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