Judge rules DHS must deliver better treatment to illegal immigrants awaiting arrest

​A federal judge has ruled that illegal immigrants stuck in makeshift outdoor “detention” sites in Southern California are technically in the government’s custody and agents must now follow strict rules for delivering care to the children among them.

U.S. District Judge Dolly Gee’s ruling deals with a particularly tricky situation where large groups of migrants have been crossing the border illegally and demanding to be arrested by Border Patrol agents, expecting to be caught and then quickly released.

But agents are so overwhelmed they say they can’t process the migrants fast enough and often leave them to camp out on the U.S. side of the border for days, enduring the cold, lack of food, and the threat from snakes and scorpions as they wait to be arrested.

U.S. Customs and Border Protection agents said the migrants can walk away, disappearing into the country without even being processed, and thus are not actually in custody. Judge Gee disagreed, saying that since CPB agents exert a lot of control over the staging area, the agency has custody of those in it.

“Although it may be true that CBP did not initially intend for these locations to become [open-air detention sites] collectively holding thousands of migrants, it is nonetheless true that the situation has evolved such that the minors held there are in the legal custody of CBP,” she wrote in the April 3 decision.

She said the government is required to provide better bathroom facilities and supplies of water, offer meals every six hours, at least some of them hot, and work faster to process the children and get them into more stable situations.

It’s not yet clear how the Border Patrol will adjust to the order.

“U.S. Customs and Border Protection is reviewing the court’s order. CBP will continue to transport vulnerable individuals and children encountered on the border to its facilities as quickly as possible,” the agency told The Washington Times.

The ruling is the latest in a yearslong odyssey surrounding the treatment of illegal immigrant children. The Flores settlement, a 1990s-era agreement revised about a decade ago, governs much of that treatment, and by extension much of U.S. immigration policy.

Under Flores, illegal immigrant children must be quickly released from the Department of Homeland Security’s custody. For most unaccompanied children, that means being turned over to government-run shelters to await placement with sponsors.

For children who come with parents, it means the government must either find a way to deport them quickly or release them, virtually guaranteeing they will slip unmonitored into the U.S.

Complying with Flores requirements has become a major burden as illegal immigration has surged under President Biden.

The government set up tent cities to handle all of the children it was facing in 2021, and wrote new rules cutting corners to speed up placement of children with sponsors.

More recently, as migrants surged into Southern California, CBP officials could not deal with the numbers they have been seeing, leaving people at the staging sites until agents can get to them.

CBP blames smuggling cartels, saying they’re orchestrating the mass incursions and telling migrants to hole up and wait for agents.

Agents said they do try to keep an eye on the crowds, offering some snacks and water. They also separate single men from the families and children to try to prevent dangerous situations, and they do some crowd control and maintain a perimeter.

But the Border Patrol said the migrants it is dealing with are not actually under arrest.

“Single adult men, like other populations, are free to leave areas where large groups congregate at any point prior to arrest,” Brent L. Schwerdtfeger, the chief of law enforcement operations for the Border Patrol’s San Diego sector, told Judge Gee.

The judge ruled that the migrants are in custody nevertheless.

Immigrant rights advocates say migrants are being denied adequate medical care, suffer hypothermia from cold nights without any shelter, and have to sleep in the dirt, where they face scorpions and snakes.