A federal judge has sharply questioned the Biden administration’s position that it is not responsible for housing and feeding migrant children while they wait in makeshift camps along the US-Mexico border.
Recent media reports have shed light on the harsh conditions at sites along the border, where people waiting for processing by US immigration authorities live under open skies or in tents or structures made of tree branches. The camps are often short on food, water and sanitation, relying on groups of volunteers to distribute aid and basic supplies.
Border patrol does not dispute the condition at these camps. Rather, the question at issue is whether these people are in legal custody, which 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.
At a hearing in Los Angeles on Friday, the US 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 Fizza Batool, an attorney for the US justice department.
Gee, who was appointed by 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. Gee did not rule after the half-hour hearing.
Advocates are seeking to enforce a 1997 court-supervised settlement on custody conditions for migrant children, which includes the time limit and services such as toilets, sinks and temperature controls.
Children traveling alone must be turned over within 72 hours to the US Health and Human Services Department, which generally releases them to family in the US while an immigration judge considers asylum. Asylum-seeking families are typically released in the US 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 people crossing the border 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 who to process first.
Advocates say border patrol often directs people 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 people to camps. It says agents giving them water and snacks is a humanitarian gesture and that any agent who sends, or even escorts, them there is “no different than any law enforcement officer directing heightened traffic to avoid disorder and disarray”.
Border patrol generally arrests people 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 people, including two small children, waited between border walls in San Diego until agents came to ask them to 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.
Doctors have seen a startling rise in injuries related to the border wall, with one San Diego trauma center treating more than 440 patients with serious injuries in 2023 alone.
Kedian William, 38, said she left a 10-year-old daughter with family in Jamaica because she could not 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 family members 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 US soil for agents to pick her up for processing.
The Associated Press contributed reporting
