San Diego CBP holds migrant children longer than it is supposed to, lawyer says

CBP Border Patrol
The CBP in San Diego is accused of breaking its own policies.
(John Gibbins / San Diego Union-Tribune)

Lawyers are accusing Customs and Border Protection in San Diego of breaking their own policies and potentially the law by holding migrant children in custody longer than the agency is allowed to.

Under the Flores Settlement Agreement, the federal government generally cannot detain migrant children and their parents together for more than brief periods. The agreement states CBP should not hold children for more than 72 hours and that Immigration and Customs Enforcement should not detain them for more than 20 days.

However, asylum-seeking children are routinely held for more than 72 hours in San Diego, according to Erika Pinheiro, a staff attorney with the nonprofit Al Otro Lado.


“We are seeing cases of prolonged detention every day,” she said. “There is no rhyme or reason to it. Sometimes they are released the same day, sometimes it’s a week later. We’ve had cases of people in CBP custody for three weeks.”

Many of the people being held in CBP custody are part of the Remain in Mexico program, which forced asylum seekers to live in Mexico while waiting for their cases to be decided in immigration courts.

The latest example involves a 9-year-old asylum seeker and her mother who have been in CBP custody since Oct. 4, as first reported by KPBS.

The mother and family were released from CBP custody Monday afternoon, Pinheiro said.

That case is particularly disturbing because both the child and mother are reportedly sick — suffering from stomach pain and diarrhea — which could be a separate violation of the Flores Settlement Agreement, the lawyer added.

Apart from limiting the amount of time children can be in federal custody, the Flores Settlement Agreement also establishes basic standards of care that include access to medical care.

A CBP spokesman declined to answer specific questions about the 9-year-old’s case or more general questions about Pinheiro’s claims that the agency is violating the law.


The spokesman said the agency treated those in its custody with “dignity and respect” while striving to “process individuals as expeditiously as possible” and noted that “most individuals are in our facilities for 72 hours or less.”

President Trump has called the Flores Settlement Agreement a “loophole” that allows immigrants to be released from immigration detention centers. ln August, the Trump administration unveiled proposed regulations that would replace Flores.

Specifically, the new policies would abolish ICE’s 20-day limit on detaining families and establish new minimum standards of care for people held in detention centers.

According to CBP’s own policies, “detainees should generally not be held for longer than 72 hours in CBP facility and every effort must be made to hold detainees for the least amount of time required for their processing, transfer, release, or repatriation as appropriate and as operationally feasible.”

Immigration attorney Rose Thompson has seen multiple asylum seekers spend more than 72 hours in CBP custody, including a case of a mother and her adult daughter spending 12 days in CBP custody.

Another asylum seeker said the conditions inside CBP custody were so poor that she asked to be sent back to Mexico, Thompson said.


“It’s horrible,” she said. “It’s not an area that’s intended to detain people for longer than 48 or 72 hours because it’s not comfortable.”

An August 2019 report of conditions inside federal custody noted that the average length of detention for asylum seekers in San Diego was 3.4 days and more than 8% of migrants surveyed in the report were held in custody for five days or more.

That report, published by the U.S. Immigration Policy Center, noted that more than 10% of asylum seekers in custody reported experiencing medical issues in detention.

The Flores Settlement Agreement also requires the federal government to provide basic care for children in custody. It stipulates that minors must be treated with “dignity, respect, and special concern for their particular vulnerability.”

Similarly, CBP guidelines regarding medical treatment state that officers are required to report illnesses to a supervisor and document them in an electronic system of record while also seeking or providing medical care in a timely manner.

However, Pinheiro contends that CBP is also violating this aspect of both the Flores Agreement and the agency’s internal policies.


She points to the mother and daughter released from detention Monday as just the latest example of migrants not receiving adequate care while in custody.

“I have never had a client say they saw a doctor while in CBP custody,” she said.

Conditions of migrants in CBP custody made headlines in June, when a group of lawyers in Texas asked a judge to issue a temporary restraining order and a contempt order calling for CBP to “immediately start processing children for release to parents or relatives,” and provide children with “basic necessities including adequate food, clean water, medical care, and access to sleep.”