Major victory for children held in Open Air Detention Sites

Court rules they are in CBP custody and must be treated with dignity, respect, and care

OAKLAND — A federal court ruled Wednesday that children held at open air detention sites (OADS) near the U.S.-Mexico border are in the legal custody of U.S. Customs and Border Protection (CBP), and therefore must receive the broad range of protections afforded to children in federal immigration custody pursuant to the Flores Settlement Agreement.

Over the past year, children have been held in profoundly inhumane conditions, forced to take shelter from harsh rain and wind in porta-potties, burn toxic brush and garbage to stay warm, and survive on nothing more than a granola bar and a bottle of water each day.

In response, the National Center for Youth Law (NCYL), the Center for Human Rights and Constitutional Law (CHRCL), and Children’s Rights filed a motion in February asking the court to require that all youth be expeditiously transferred to safe and sanitary facilities, among other things. Last night, Judge Dolly Gee of the United States District Court for the Central District of California held that children detained in OADS are in the legal custody of DHS and therefore Flores class members.

“CBP maintains legal custody over minors at OADS. CBP has decision-making authority over the health and welfare of the children at OADS. CBP also exercises physical control over the minors at OADS.”

The Court found that CBP violated the Flores Settlement by holding children in unsafe and unsanitary conditions, not providing children with appropriate food, and not processing children as expeditiously as possible.

The Court’s order requires DHS to expeditiously process all children detained at OADS, and to stop directing and holding children in OADS, except for the amount of time reasonably necessary to prepare the child for transfer to facilities that are safe and sanitary. The Court also requires the CBP Juvenile Coordinator to maintain records and statistical information on children detained in OADS, monitor the government’s compliance with the order, and file an interim report on May 10, 2024.

“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. We expect CBP to comply with the court’s order swiftly, and we remain committed to holding CBP accountable for meeting the most rudimentary needs of children in their legal custody, including food, shelter, and basic medical care,” said Neha Desai, Senior Director of Immigration at NCYL.  

“Children and families should never have been detained in these barren sites — no one should have been. CBP must finally end this practice and ensure the safety of all children in its custody,” said Sarah Kahn, Interim Director of CHRCL.

“We are gratified that the court recognized that children detained at open air detention sites are indeed in government custody and reaffirmed that children are entitled to safe and sanitary facilities where they will be given adequate food, water, shelter and medical care. We are grateful to all the volunteers who have been working hard to keep children safe,” said Leecia Welch, Deputy Legal Director at Children’s Rights.

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The National Center for Youth Law centers youth through research, community collaboration, impact litigation, and policy advocacy that fundamentally transform our nation's approach to education, health, immigration, foster care, and youth justice. Our vision is a world in which every child thrives and has a full and fair opportunity to achieve the future they envision for themselves. For more information, please visit youthlaw.org.

Children’s Rights is a national advocacy organization dedicated to improving the lives of children living in or impacted by America’s child welfare, juvenile legal, immigration, education, and healthcare systems. We use civil rights impact litigation, advocacy and policy expertise, and public education to hold governments accountable for keeping kids safe and healthy. Our work centers on creating lasting systemic change that will advance the rights of children for generations. For more information, please visit childrensrights.org.

The Center for Human Rights and Constitutional Law protects the civil and human rights of community members through impact litigation and systemic advocacy and provides technical support and training to direct legal service providers. For more information, please visit centerforhumanrights.org.