Last week, U.S. District Judge Dolly M. Gee ruled that DHS border agents have legal custody over migrant children at California-Mexico border open-air sites before asylum processing. This case highlights children’s entitlement to rights, including safe conditions, under government custody. Was Judge Gee’s ruling on legal responsibility for the welfare and safety of migrant children at the border correct? You be the judge as we get into the details.
Caring for the Children of the Migration Crisis?
In the past year, thousands of migrants have gathered along the Mexico-California border, awaiting immigration processing. This surge has led to the formation of open-air encampments holding adults and children seeking asylum. Due to staffing and space limitations, U.S. Customs and Border Protection agents cannot promptly process migrants, resulting in prolonged stays in these outdoor encampments. Children advocacy groups petitioned the court. They argued that despite the government’s non-involvement in creating these camps, Border Patrol agents “often directed, or even drove, migrants to the locations, then monitored them and told them not to leave unless they wanted to be deported….” The facilitating of the migrants’ presence in the encampments thus implies custody responsibilities, they argued.
What is the Flores Settlement Agreement?
Honorable Gee’s recent order, citing the the Flores Settlement Agreement, places children in border encampments under Customs and Border Protection’s legal custody. It directs prompt transfer to appropriate facilities, ensuring that fundamental safety and sanitary needs are met. Honorable Gee’s enforcement reflects a commitment to child welfare during immigration processing, highlighting agents’ legal responsibility.
Defining Legal Custody as it Pertains to Migrant Children at the Boarder
Plaintiff attorneys contended that Border Patrol’s oversight and control in the encampments implied government custody, necessitating protection of the children’s welfare. They argued for equivalent care standards as those in official custody due to the children’s restricted movement and the threat of deportation if they were to leave the encampments.
Conversely, government lawyers asserted that without formal custody, agents weren’t obligated to provide for the children, though they acknowledged poor camp conditions. Honorable Gee sided with the Plaintiffs’ attorneys, interpreting DHS agents’ control in line with the Flores Agreement’s custody definition, encompassing care and supervision. Referencing Ninth Circuit precedent, she affirmed that physical control and decision-making authority indicated legal custody. Her ruling clarified that agents’ discretion over children’s welfare denotes custody, irrespective of care provision, emphasizing the importance of welfare protection even before formal immigration processing.
After finding that the migrant minors are in DHS legal custody, Honorable Gee outlined the legal responsibilities owed to these children by the Border Agents overseeing the encampments. Pursuant to the Flores Agreement, the judge held that agents must ensure that the children are afforded safe and sanitary conditions, medical treatment as needed, and the appropriate amount of food and water.
Implementing Judicial Orders Amid a Stressed Immigration System
Although praised by children’s advocacy lawyers, the decision to afford the children in this case protected class status with entitled legal protections faces pushback from government attorneys. This is due to increased migrant numbers and resource shortages at the border. Despite acknowledging practical difficulties, Honorable Gee criticized DHS for inefficient processing and said judicial scrutiny would prompt expediency.
This highlights to role legal precedent plays in safeguarding vulnerable populations, especially children, amidst state-federal immigration policy clashes. As Honorable Gee emphasized, “Minors are always under someone’s custody.”
Interested in Judge Gee’s Record, Custody Laws, or Immigration?
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Sources:
Judge Bio Page:
https://trellis.law/judge-dashboard/2026/bio
California Juvenile Court Rules:
Litigation Related to Flores Settlement Agreement:
https://trellis.law/cases/%22Flores-settlement-agreement%22?state=ca&county=&matter_type=
News Sources:
https://www.nytimes.com/2024/04/04/health/migrant-children-border-housing.html
https://www.cbsnews.com/news/migrant-children-california-judge-open-air-sites-border-patrol
Music: Cast No Shadow by Anka Mason
Blog Narration: Anka Mason
