Flores Counsel Takes Action to Address the Harm Children are Experiencing at Open Air Detention Sites

Children are being denied shelter, adequate food and water, and access to medical care. National Center for Youth Law, Center for Human Rights and Constitutional Law, and Children’s Rights call on the federal court to enforce Flores Settlement standards.

Children at our southern border are being held in appalling conditions that no child should ever have to endure. While in the custody of U.S. Customs and Border Protection (CBP) in Open Air Detention Sites (OADS), children have spent the night on dirt littered with garbage and have been forced to take shelter from wind and rain in overflowing porta potties.

The National Center for Youth Law (NCYL), Center for Human Rights and Constitutional Law, and Children’s Rights, through a federal court filing, are calling for an immediate end to these abusive practices by asking a judge to enforce the requirements of the Flores Settlement Agreement, which establishes standards for how children are treated in federal immigration custody.

The court filing highlights the shockingly unsafe and unsanitary conditions in which CBP officials are detaining children, and outlines why these young people are entitled to protections under the Flores Settlement. If approved, the motion would, among other things, require that all youth be expeditiously transferred to safe and sanitary facilities. 

“For at least a year now, children have been held in these egregious conditions for varying lengths of time; there is no reason to believe the situation will resolve on its own. Without the lifesaving support that volunteers provide, who knows how many children’s lives would be lost? But it is the responsibility of the government – not humanitarian volunteers – to ensure that these children’s most basic needs are met,” said Neha Desai, Senior Director of Immigration at NCYL.

Deplorably dangerous

Families and children at OADS are routinely denied shelter, adequate food, water, and blankets, and they are often forced to take cover in outdoor toilets, dumpsters, or trash piles during exceptionally cold, rainy, or windy weather. Children and families must depend on the generosity of humanitarian volunteers to meet their most basic needs. At the same time, CBP controls when, where, and whether volunteers are permitted to provide this essential humanitarian aid.

“Many of the children arriving at the OADS have been traveling, primarily on foot, for a month or more. They are hungry, exhausted, and sometimes seriously injured. I’ve witnessed children shaking in rain-soaked clothes, parents trying to warm their babies near smoky fires, people being treated for pre-hypothermia. It is unconscionable that CBP would leave a human being, much less a child, in these circumstances,” said Sarah Kahn, Interim Director of CHRCL.

The extreme weather variations — hot and dry days can be followed by sub-freezing nights — place youth at a particularly high risk for hypothermia, a condition for which two children were hospitalized this month. One father described how he believed his daughter “went into shock — she could not stop shaking violently.”

The freezing temperatures have led some detainees to burn brush for heat, unaware that much of the brush surrounding the sites is toxic. People at the sites, including young children, have experienced significant health impacts, including respiratory problems, due to the toxic smoke. 

The OADS contain no permanent restroom facilities and lack basic hygiene items. The number of portable toilets on-site are often woefully inadequate and, predictably, become filthy due to overuse and insufficient servicing. 

Due to this lack of functioning restrooms, many people choose to relieve themselves outside. Not only does this increase the spread of illnesses, but it also leads to the sites becoming overwhelmed with the smell of human waste during especially hot days.

CBP does not provide any medical care at OADS, despite children and others frequently experiencing serious medical emergencies. CBP has at times refused to call 911 during medical emergencies, often accusing people of “faking” illness to leave the sites and threatening people with the loss of the right to apply for asylum if they leave the OADS in an ambulance.

The Flores Settlement requires that children be held in safe and sanitary conditions with concern for their particular vulnerabilities as children, and that they be expeditiously processed. Despite clear law to the contrary, CBP is claiming that children in OADS are not entitled to these protections because they are not in U.S. custody. 

“The inhumane conditions at the OADS alone are enough to shock the conscience. But the notion that these children are somehow not in government custody and therefore not entitled to Flores protections is as shocking as it is patently false. CBP agents are tracking children, rounding them up, lining them up, directing when they can leave the sites and controlling their destination. Government custody in the open air is still government custody,” said Leecia Welch, Deputy Legal Director at Children’s Rights.



Willis Jacobson, National Center for Youth Law: wjacobson@youthlaw.org

Sarah Kahn, Center for Human Rights & Const. Law: sarah@centerforhumanrights.org 

Camilla Jenkins, Children’s Rights: cjenkins@childrensrights.org

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