Judge questions Border Patrol stand that it’s not required to care for children at migrant camps

Kedian William, 38, of Jamaica, hands a phone charger to volunteer Pedro Rios on Friday while waiting between two border walls in San Diego for agents. (AP Photo/Elliot Spagat)

SAN DIEGO — 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.

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.”

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