The Issue

Summary

Every day, immigrant children arrive at the U.S.–Mexico border, often having already traveled for months. By the time they arrive, they are exhausted and sometimes starving or seriously injured. Despite the physical state these children are usually in, U.S. Customs and Border Protection (CBP) holds them in dreadful conditions at makeshift shelter sites known as Open Air Detention Sites (OADS) along the California-Mexico border. OADS are outdoor encampments that have no sewage systems, running water, or basic supplies of any kind but are used by CBP as immigration detention centers for unaccompanied and accompanied immigrant children. A child may spend days, let alone several hours, at these sites before CBP transports them to a brick-and-mortar detention facility for formal processing. Children who have to spend the night at OADS sleep outside on the cold dirt floor, surrounded by trash and the foul smell of overflowing portable toilets and trash dumpsters.

These immigrant children – whether held at OADS or at traditional detention facilities – are considered in the legal custody of CBP and are thus entitled to the full protections of the Flores Settlement Agreement. The Flores Settlement Agreement established national standards for the humane treatment, placement, and prompt release of detained immigrant minors. The Settlement aimed to bring child welfare protections to immigrant children held in federal custody. 

The Center for Human Rights and Constitutional Law (CHRCL)is one of the few legal organizations authorized to visit the federal detention facilities where immigrant children are held to monitor conditions and interview detained children. As Flores Counsel, CHRCL, the National Center for Youth Law (NCYL), and Children’s Rights monitor the government’s compliance with the Settlement’s terms to ensure that they are meeting the required standards.

As soon as Flores Counsel became aware of the unsafe and unsanitary conditions of the OADS where CBP was regularly holding both accompanied and unaccompanied immigrant children, they took action to protect those children. It was immediately clear that the OADS were blatantly violating the requirements of the Flores Settlement. So, on February 29, 2024, CHRCL and co-counsel filed a motion to enforce the Flores Settlement Agreement with respect to the children being detained at OADS in the San Diego area.

According to a recent article in CNN Politics, heavy rains have led asylum seekers at these OADS to seek shelter wherever they can, including in the dumpsters and portable toilets on site. Volunteers visiting the OADS have recorded immigrants with deep lacerations, broken bones, fevers, diarrhea, vomiting and seizures. “From a public health standpoint, there are communicable diseases and outdoor exposures that would strike anyone down, much less this medically vulnerable population,” Dr. Theresa Cheng, a California physician and civil rights lawyer providing services at the border area, told CNN.

Sarah Kahn, Interim Director of CHRCL, has conducted multiple monitoring visits to immigration detention centers at the border, but in January and February 2024, she observed the inhumane treatment of detained migrants at OADS specifically. “I saw tents that were partially set up and filled with abandoned belongings and wet sleeping clothes, blankets, or makeshift beds. There were fire pits people had apparently used to keep warm with wood I understand to have been provided by volunteers. When I was at the Willows OADS, there were three dirty porta potties and two full dumpsters. Upon information and belief, the porta potties had been serviced by Border Patrol, but had not been serviced recently such that they were no longer sanitary. There was no visible soap or clean water,” said Sarah Kahn about the Willows OADS located in Jacumba, California.

CBP is blatantly failing to meet its obligations to these children under the Settlement Agreement, as it offers them no shelter or medical care and little to no sanitation, food, water, or blankets. Children in OADS are in the legal custody of CBP and are therefore entitled to the full protections of the Flores Settlement Agreement. In light of the government’s clear violations of the Settlement’s terms, CHRCL and co-counsel sought court enforcement to protect the children at OADS and won. On April 3, 2024, the U.S. District Court for the Central District of California issued an order requiring that immigrant children at OADS be accorded protections under the Settlement Agreement, that the children be held in facilities that are “safe and sanitary, “ and that CBP cease holding immigrant children in OADS beyond what is needed to arrange their transport to a more suitable facility.