Children who wait in makeshift migrant camps along the US-Mexico border for border patrol to process them are in the agency’s custody and are subject to a longstanding court-supervised agreement that set standards for their treatment, a judge ruled.
The issue of when the children are officially in border patrol custody is particularly important because of the 1997 court settlement on how migrant children in US government custody must be treated. Those standards include a time limit on how long the children can be held and services such as toilets, sinks and temperature controls.
Wednesday’s ruling means the Department of Homeland Security must quickly process the children and place them in facilities that are “safe and sanitary”.
The border camps have become a flashpoint between immigrant advocates and the federal government. The US has said smugglers send undocumented people to such camps and argued that the children are not yet in border patrol custody because they have not been arrested. Advocates say the US government has a responsibility for the children and that border patrol often directs undocumented people to the camps, sometimes even driving them there.
Children traveling alone must be turned over within 72 hours to the US health and human services department. That agency 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.
“This is a tremendous victory for children at open air detention sites, but it remains a tragedy that a court had to direct the government to do what basic human decency and the law clearly require,” Neha Desai, senior director of immigration at the National Center for Youth Law, said in a statement.
The Department of Homeland Security did not immediately respond to a request for comment.
The US district judge Dolly Gee’s decision could have far-reaching implications because of the changing face of who is coming to the US. Decades ago, the typical person attempting to enter without authorization was an adult male from Mexico seeking work. Now, families with children are increasingly making perilous journeys to the border, fleeing desperate circumstances of violence, poverty, oppression or the climate crisis, or a combination, in their home countries, and seeking a more secure new life.
Caring for children puts different stresses on federal agencies historically more geared toward adults.
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.
People who cross the border unlawfully wait under open skies or sometimes in tents or structures made of tree branches while short on food and water. When the number of people crossing the border was particularly high last year, they waited for several days for border patrol agents to arrest and process them.
Gee said there was “significant evidence” that Customs and Border Protection, of which border patrol is a part, has physical control over minors at the outdoor locations.
