Border Patrol must care for migrant children it locks up, federal judge rules

When the federal government locks migrants up, it’s responsible for them — regardless of whether they’ve been formally processed, a federal judge found Wednesday. 

As migrant crossings over the border between Mexico and Southern California have overwhelmed local detention facilities, thousands of people have been left to camp in the desert, often for days.

In the case under dispute, Flores v. Garland, civil rights groups sued on behalf of migrant children living in the camps, who they argued were being housed in “inhumane” conditions.

The U.S. Border Patrol largely didn’t challenge the idea that the conditions weren’t adequate. Instead, it argued the court didn’t have jurisdiction over the agency on this issue because the agency had not formally taken on responsibility for the children by processing them.

Judge Dolly Gee of the U.S. District Court of Central California roundly rejected that idea.

The agency may not have intended for temporary camping sites to become polluted open air detention sites “collectively holding thousands of migrants,” Gee conceded.

But she added the situation has “evolved such that the minors held there” are in the agency’s legal custody — and therefore it is responsible to care for them.

At the core of the present case is the 27-year-old decision in Flores v. Sessions, which established that the Department of Homeland Security is responsible for providing housing to “all minors who are detained in the legal custody” of the agency.

Gee determined it didn’t matter that the children had not been formally processed: They were held in a fenced area to which they were forcibly returned if they tried to leave, by an agency with “decision-making authority over [their] health and welfare,” she wrote in the ruling.

The court found that Customers and Border Protection (CBP), for example, “largely controls the provision” of necessities like drinking water and handwashing stations at the camping sites — as well as portable toilets and dumpsters, the last of which Gee noted were “quickly filled and infrequently serviced.” 

Volunteers reported to the court that the water and handwashing stations were also poorly maintained — on a recent inspection, “the handwashing stations have been filled with trash and the spigots to the waters stations [were] dirty,” Gee wrote.

That overloaded infrastructure is part of generally grim conditions. The camps themselves are an archipelago of rocky, barren quadrangle encircled by the border wall, train tracks, desert and mountains.

In the dry air, temperatures can be above 110 degrees in the summer and below 20 degrees in the winter, with little shelter, save for “various forms of brush that the migrants try to burn to keep warm at night,” Gee wrote.

While volunteer groups try to supply people in the open air detention site with food, clothing and sanitation services, “the need outpaces their ability to provide this assistance,” the court found.

National standards for migrant detention require kids to get a meal every six hours, and two hot meals per day; generally, migrants in the detention sites get “one bottle of water and one pack of crackers” each day, according to the court.

Also, the insufficiently abundant and infrequently cleaned dumpsters and portable toilets “are unflowing and unusable,” Gee found.

“This means that the [open-air detention sites] not only have a foul smell, but also that trash is strewn about, and [migrants] are forced to relieve themselves outdoors.”

All of this, Gee found, violated immigration authorities’ responsibility under the 1997 Flores decree to hold “minors in facilities that are safe and sanitary.”

The mere fact that CBP had provided services — or that those services were inadequate for need — would not imply that they had the minors in “custody,” except for the crucial fact that the migrants can’t leave, Gee wrote in the ruling. 

On their arrival, migrants are given a wristband marked with a date; when they ask CBP officers if they can leave to get told food and water, they are told no, she noted in the decision. And “if an individual does leave [the site], Border Patrol brings them back.”

Having established that the children at these camping sites are in U.S. custody, the court found “abundant evidence” that the care they were receiving “is not adequate for minors.”

Finally, the court found that CBP “had not been processing [migrants] as expeditiously as possible,” though Gee declined to give the agency a hard limit for the time they could take to process them.

But she warned that the agency’s “failure to process minors in a reasonably expedition manner” would lead to “further remedial measures” by the court.