Most of this lawlessness was ended when Tangerine was moved out of 1600 Penn, in January of 2021. However, increases in the flow of asylum seekers, and particularly at the Southern California ports of entry, have left CBP overwhelmed, and under-staffed.

But that is no excuse for mistreating children, especially. This needs to be a five alarm emergency in the federal courts, since the Congress refuses to act to modernize our processing facilities — and address our treaty and legal obligations in a responsible manner.

So it is that Flores (search our archives — this is a case that has been actively litigated since 1985!) has seen accelerated motion practice, yet again. See, for example, this 25 page renewed motion:

…U.S. Customs and Border Protection (“CBP”) is holding Flores class members outdoors in open-air detention sites (“OADS”) along the U.S. border in extraordinarily unsafe and unsanitary conditions. Children have spent anywhere from several hours to several days at these sites before CBP transports them to brick-and-mortar facilities for formal processing. Children in OADS are in the legal custody of CBP and are therefore entitled to the full protections of the Flores Settlement Agreement (“FSA”). 1 See FSA ¶ 10.

CBP has decision-making authority over the welfare and legal status of these children from the moment of first discovery in the United States. See Flores v. Barr, No. 85-4544-DMG, 2020 WL 5491445, at *4 (C.D. Cal. Sept. 4, 2020); 8 U.S.C. § 1232(b)(2). CBP directs noncitizen children to wait at OADS for formal processing, including regularly physically transporting or escorting children to specific OADS. While children are at OADS, they cannot leave without CBP permission and are subject to CBP orders. CBP has at times exercised its authority to separate families, requiring adult men to move to different OADS than their children or other family members.

Both accompanied and unaccompanied children are regularly detained at OADS. CBP is plainly failing to meet its obligations to these children as it offers them no shelter or medical care and little to no sanitation, food, water, or blankets. Children and their families are forced to take shelter in porta potties, dumpsters, or tarps filled with trash to escape the cold, wind, and rain. Children and families must depend on the generosity of volunteers to meet their most basic needs. Some arrive with or develop serious medical conditions while at OADS and rely on humanitarian volunteers for medical care. CBP often fails to assist children in desperate need and sometimes exercises its authority over OADS to obstruct access to critical supplies provided by volunteers and to emergency medical services….

Holding children in these sites flagrantly violates the requirements of the Settlement. Without court intervention, CBP will continue to fail to meet its obligations to class members. The Court should grant Plaintiffs’ motion and order Defendants to comply with the Settlement by immediately placing all class members in safe and sanitary facilities….

[As a result of the freakish weather of late in Southern California,] People held at these sites have no choice but to burn brush and garbage to try to stay warm. See Pinheiro Dec. ¶ 46; Kahn Dec. ¶¶ 91, 114; Cheng Dec. ¶ 25. The brush that is available in Jacumba is often creosote, which can be toxic when burned. See Pinheiro Dec. ¶ 46. Noncitizens and volunteers at OADS experience watery eyes, a burning sensation in their throats, black mucous coming from their noses and throats, and other respiratory problems….

CBP agents sometimes provide just a single bottle of water and granola bar or a couple crackers per person [per day]. See Jasso Dec. ¶ 23; Pinheiro Dec. ¶ 44; Kahn Dec. ¶ 111; Ex. 11, Declaration of Lillian Serrano ¶ 19, February 26, 2024 [“Serrano Dec.”]. At other times they provide no food or water at all. See E.G. Dec. ¶ 10; Kahn Dec. ¶¶ 12, 30; see also Cheng Dec. ¶ 28 (at least six formula-fed infants were held at OADS without formula)….

CBP further undermines access to medical care by threatening people seeking medical assistance with a loss of the right to seek asylum. See Pinheiro Dec. ¶ 56; Alvarez-Lopez Dec. ¶¶ 30, 34; see also Rios Dec. ¶ 36 (mother declined recommended medical treatment for herself and one-year-old baby after agents threatened negative immigration consequences if they went to the hospital). CBP agents have also accused noncitizens of faking illness to try to leave OADS. See Alvarez-Lopez Dec. ¶¶ 31-32; Pinheiro Dec. ¶¶ 54, 58; Serrano Dec. ¶¶ 25, 29; see also Cheng Dec. ¶ 37 (“Border Patrol … insisted that migrants fake medical emergencies in order to leave the camps and questioned my triaging and diagnoses of migrants’ health conditions.”)….

CBP appears to exercise discretion as to how quickly it processes individuals out of the OADS. For example, OADS have been cleared quickly in advance of visits from higher-level DHS officials. See id. ¶¶ 36-39; see also id. ¶ 37 (“In the two to three days before [DHS headquarters staff] arrival, Border Patrol agents processed most migrants out of the Jacumba OADS” and “cleaned the camps of some of the garbage, dismantled some of the makeshift shelters built by migrants, and threw out tents and other shelters our collective had built”). These periods of faster processing then subside, and the cycle of detention continues. Id. ¶ 38….

We as a nation are certainly capable of better than this. Damnation. Onward, just the same.

नमस्ते