Customs and Border Protection
U.S. News /23 Jul 2019
07.23.19

Judge Orders CBP to Immediately Address and Fix Conditions at U.S. Border

If there weren’t a bonafide emergency at the U.S.-Mexico border before, there most certainly is now. On June 28, 2019, U.S. District Judge Dolly Gee made a ruling that concurs with that assessment, when she ordered U.S. Customs and Border Protection (CBP) to immediately address unacceptable standards at detention centers along the border.

There are ethical as well as legal reasons why such a ruling may have been handed down. But with the ethical conversation so drowned out by political polarization, Gee called on a 1997 statute which provides guidance on how the United States must treat children in its custody. To speak plainly, the treatment of children separated from their families and held at Rio Grande Valley and El Paso, did not, in 2019, hold up to standards laid down twenty-two years ago.

The ruling marked an incisive decision between two legal camps: one advocating for the welfare of migrant children and one advocating for the U.S. Justice Department.

What Gee set in motion is an “expedited mediation” with the assistance of an independent monitor. The two detention centers in question will have this court-appointed monitor “set deadlines” and “facilitate the prompt remediation of the conditions at issue.” Among other tasks, the monitor will make preparations for the retention of an independent expert in public health. July isn’t the deadline for completing the proposed changes. It’s the deadline for reporting on what’s been done to correct each of the flagged issues. In other words, this is extremely high-priority work and, by all accounts, severely and maybe criminally overdue.

But what are the claims against CBP, specifically? And what else do these “remediation” measures entail?

The legal precedent cited by Judge Dolly Gee is usually referred to as the “Flores Settlement Agreement.” In that case, it was determined that the United States has a responsibility to provide for the well-being of children held in detention. The settlement uses both figurative language (“dignity and respect”) and very literal language (“access to food,” “water,” “medical assistance,” “safe” and “sanitary,” etc.) to describe the required conditions.

In her ruling, Gee said this: “If 22 years has not been sufficient time for Defendants to refine that plan in a manner consistent with their concern for the particular vulnerability of minors and their obligation to maintain facilities that are consistently safe and sanitary, it is imperative that they develop such a comprehensive plan forthwith.”

Regrettably, this is not the first time that U.S. Customs and Border Protection has, in a legal setting, been found to be in breach of the basic treatment guidelines laid out in the Flores Agreement. A court noted “widespread and deplorable” conditions in 2015. And in 2017, the same two detention centers noted here — El Paso and Rio Grande — were cited in yet another court order for failing to maintain even minimal sanitation standards.

A government issued handout image of the U.S. Border Patrol Central Processing Center in McAllen, Texas, on June 17, 2018.

The ruling from judge Gee is a response to the latest in a pattern of noted abuses suffered by children at the borders of the United States. Making note of this fact is not a political stance — nor is it suggesting that judicial intervention shouldn’t be necessary where the treatment of immigrant minors is concerned. At least, not in the home of the brave.

The Flores Agreement was thorough enough to describe both the conditions under which children should be held, if indeed they should be held, as well as the steps CBP must take to “scale up” their operations effectively enough to (Gee again) “place all minors as expeditiously as possible” — including submitting a written plan describing those steps. It seems the Justice Department, the Department of Homeland Security and the CBP all failed to uphold the expectations laid out for them.

Children Caught in the Middle

This intercession by Judge Dolly Gee is a positive sign that these migrant children have a sympathetic ear with some actual political and civic power. It’s not a moment too soon, either, because the conditions within these detention facilities are regularly described with phrases like “public health emergency.” And the treatment of the children held there, according to some of the lawyers representing them, is like “torture.” The larger group of lawyers speaking for migrant children in the case asked the judge to officially hold CBP and the U.S. government in contempt of court for failing, in twenty-two years’ time, to provide a written plan for precisely the sort of eventualities described in the Flores Agreement.

CBP didn’t answer these allegations by promptly submitting a plan for improving conditions in U.S. detention facilities — they countered by asserting that the lawyers and the court-appointed mediator were trying to exert powers that went beyond the scope of the Flores Agreement. That they were attempting a power grab, in other words.

An actual plan is supposed to have been put into place and reported on in July, despite the ongoing legal sniping between the two parties. And in the meanwhile, the American Congress is fresh from passing a bipartisan bill which shunted $4.6 billion in the direction of the southern border to improve conditions for migrant children. Bipartisan victories in the U.S. in 2019 involve apportioning public funds so we can treat confiscated children with basic dignity and respect.

And was this border emergency of our own making to begin with? The president asserts that human trafficking ranks highly on the list of reasons for building a wall between the U.S. and Mexico. And yet it appears that only a very few of the victims in some of the U.S. “hotspots” for such activity were actually trafficked across the border. Most of them were born in the United States.

According to experts on the issue, raising a wall between these two nations wouldn’t help solve this or any of the other ongoing problems associated with legal and illegal immigration. If there is a purpose to what we’re doing here, it’s crass and political — not practical nor done in the name of safety-mindedness. Hatred like this is not in keeping with the American tradition; yet, a broader atmosphere of nationalism, jingoism, racism, and hatred seems to have erupted anew in recent years.

So much damage has been done already — will we learn from our mistakes quickly enough to avoid more?

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