In a 12-page order issued Wednesday, Judge Dolly Gee of the U.S. District Court for the Central District of California found that the children, who federal officials have argued are not yet in U.S. custody, are entitled to the rights and protections offered to migrant minors under the longstanding Flores Settlement Agreement. Under that court settlement, the U.S. government agreed to provide basic services to migrant children, including by housing them in “safe and sanitary” facilities.
Gee concluded that while migrant children at the outdoor staging areas in Southern California have not been formally processed yet, they are still in the legal custody of the U.S. since their movement is controlled by Border Patrol agents.
At the center of the case are seven sites near San Diego and Jacumba Hot Springs, a remote area of Southern California, where migrants have waited for hours or days before Border Patrol agents transfer them to brick-and-mortar detention facilities to formally process them. Advocates have said Border Patrol directs migrants to these sites.
Citing declarations from advocates who visited the open-air sites, Gee said migrant children at these locations often don’t receive adequate food, beyond crackers. Some of the sites have lacked a sufficient number of dumpsters and portable toilets, and the ones they do have are “overflowing” and “unusable,” Gee said.
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“This means that the [open-air sites] not only have a foul smell, but also that trash is strewn about the [sites], and Class Members are forced to relieve themselves outdoors,” Gee wrote in her ruling.
Over the past several years, Gee has repeatedly found that the U.S. government, under Republican and Democratic administrations, has violated the Flores agreement.
Representatives for U.S. Customs and Border Protection, which oversees Border Patrol agents, did not immediately comment on Wednesday’s ruling.
Advocates for migrants applauded Gee’s decision.
“For over a year, the government has left children suffering in dangerous and inhumane conditions at Open Air Detention Sites (OADS), insisting that these children are not their responsibility,” said Neha Desai, an attorney at the National Center for Youth Law. “Thanks to the court’s clear and consequential decision, the government can no longer pretend that children in OADS are not in government custody.”
Border Patrol has recorded a sharp increase in migrant crossing in Southern California in recent months. In the first five months of fiscal year 2024, Border Patrol recorded nearly 152,000 migrant apprehensions in its San Diego sector, a 72% increase from fiscal year 2023, according to government data.
In 2024, the San Diego sector has been the second busiest Border Patrol sector for illegal crossings, only behind the Tucson sector in Arizona.
