As the second Trump administration ramps up its anti-immigrant crackdown, a Los Angeles federal judge is about to decide whether to extend federal protections that ensure migrant children detained at the U.S.-Mexico border receive a higher standard of care — provisions set to expire on Wednesday.
It’s a pivotal moment that could set the stage for many of the legal fights to come over border officials’ treatment of migrant families, particularly when President Donald Trump has already sent 500 Marines to San Diego as a show of force and handed “border czar” responsibilities to Tom Homan — the official who oversaw the “zero tolerance” policy that led to thousands of family separations during the first Trump administration.
The potential turning point also comes just days after Democrats on the Senate Judiciary Committee released a report documenting what they called “inadequate care in Customs and Border Protection facilities,” which closely examined the errors and dismissive attitudes of officials that led to the death of Anadith Danay Reyes Álvarez, an 8-year-old Panamanian girl detained at a CBP detention facility in Harlingen, Texas, in 2023. Congressional investigators found that, in some cases, contracted medical personnel “do not always feel empowered to seek emergency services without approval by nonmedical CBP personnel.”
The issue of migrant standards reached a fever pitch during Trump’s first presidency in 2019, when a Justice Department lawyer argued that the government wasn’t required to provide blankets, soap or toothbrushes to kids held in federal facilities. At the time, that argument was shot down by 9th Circuit Court of Appeals Judge Atsushi Wallace Tashima, a retired U.S. Marine who had been held at a Japanese-American internment camp when he was a boy during World War II.
That bare minimum of humanitarian treatment is now in question.
On Friday, U.S. District Judge Dolly M. Gee heard arguments from human rights group lawyers and DOJ prosecutors about whether or not to keep these standards in place for an extra two-hand-a-half years. She is expected to make a ruling in the coming days.
At issue are some new segments of the so-called Flores Settlement Agreement, a legal accord that started with a 1985 class action lawsuit over the mistreatment of minors in U.S. custody and led to a 1997 deal that dictates how the government must care for migrant children who enter the country. The question now is whether border officials must continue to abide by a 2022 revision to the settlement under the Biden administration that says kids generally can’t be separated from their parents or guardians while entering the Rio Grande and El Paso, Texas.
That 2022 sub-settlement also created an “independent juvenile care monitor” who receives monthly statistics and can oversee the conditions of detained children.
Earlier this month, several advocacy groups — including Children’s Rights and the Center for Human Rights and Constitutional Law and — asked the judge to keep the 2022 deal around a little longer.
“Although the government has made significant progress … CBP has failed to substantially comply with multiple critical provisions and has not achieved the settlement’s underlying purpose—to provide children safe and sanitary conditions consistent with concern for their special vulnerabilities as minors,” those groups wrote on Jan. 14.
Diane de Gramont, an attorney at the National Center for Youth Law who also works on the ongoing court case, told NOTUS that advocacy groups remain firm that Border Patrol has not sufficiently improved conditions at detention facilities — but that unraveling the current rules could exacerbate the situation.
“Extending the 2022 settlement is to make sure there’s still eyes and monitoring on the conditions in these two sectors, and if things do start getting worse, there’s a clear mechanism to address that,” she said.
On the federal side, the court battle is being handled by the Justice Department’s civil division, where filings now bear the name of the department’s new acting assistant attorney general, Brett A. Shumate, who was, until recently, a partner at Jones Day, a go-to law firm for funneling conservative attorneys into government.
Following Trump’s inauguration and his quick shake-up of top officials at the DOJ, the first government filing in the ongoing Flores case was pushback against what the independent monitor and human rights group attorneys deemed inaccuracies in government statistics.
The court-appointed monitor’s final report noted difficulties in assessing how many juveniles were held beyond a three-day limit, noting that “interviews with both families in custody and with CBP facility leadership indicated that the majority of families had been in custody for longer than 72 hours.”
A follow-up court declaration from de Gramont pointed out how initial Customs and Border Protection data reports have vastly undercounted how long some kids have been held in government facilities. October 2024 figures first stated that 1,205 children were detained beyond three days — numbers that were later revised to 2,489 kids. In court filings, de Gramont detailed how CBP initially claimed the longest stay was an 11-year-old held for 18 days — only to later report that the monthly record actually belonged to a 7-year-old and 14-year-old who were held for 22 days.
“The data discrepancies were especially large for children with the longest lengths of stay,” de Gramont said in the court filing.
In court papers, the DOJ assured that the government was “working diligently to resolve the issue” and asked the judge to “disregard” this latest data discrepancy when considering whether to keep the higher standards of care set out in the 2022 agreement.
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Jose Pagliery is a reporter at NOTUS.