Nearly 40 Texas-based shelters housing migrant children in federal care are slated to operate without state oversight in September in response to an order by Governor Greg Abbott, which will put them at risk of violating legal requirements designed to protect minors in U.S. custody.
In late May, Abbott, a Republican, instructed Texas officials to stop licensing shelters for migrant children without legal status, a move interpreted by the Biden administration as an attempt to force the federal government to stop housing these minors in the state.
Texas directed shelter officials to “wind down operations” by August 30. In response, the Biden administration threatened to sue, calling Abbott’s order a “direct attack” on the Health and Human Services Department shelter system, which houses unaccompanied children encountered along the U.S.-Mexico border.
In June, however, Texas authorities quietly issued an emergency rule establishing an exemption allowing shelters for migrant children in federal custody to continue operating after August 30 — but without state licenses that certify the facilities can care for minors.
Christine Mann, a spokesperson for the Texas Health and Human Services Commission, the agency that approves licenses for shelters, said 39 facilities intend to keep housing migrant children in HHS custody beyond August 30 under the emergency exemption.
Mann confirmed that after August 30, these shelters will no longer be inspected by Texas officials or subject to state oversight, a prospect that has alarmed advocates for migrant children.
“While it now appears that Texas shelters for immigrant children will not be forced to close their doors, we remain concerned about the impact de-licensing these shelters could have on children’s safety and well-being,” Leecia Welch, an attorney at the National Center for Youth Law who represents migrant children in a landmark class-action lawsuit, told CBS News.
“What happens if children are abused by a staff member at one of these shelters?” Welch continued. “What happens if children are denied adequate food or medical care or worse at these shelters? There will apparently be no state licensing authority to call for help.”
The Texas Department of Family and Protective Services, which handles reports of alleged abuse or neglect at child-care facilities, did not say whether it would continue to investigate these kinds of allegations from shelters that are no longer licensed to house migrant children. Such incidents are also supposed to be reported to HHS and to appropriate law enforcement.
As of mid-July, the 52 Texas-based state-licensed shelters and foster care programs contracted by HHS were housing more than 4,700 unaccompanied children, according to data obtained by CBS News.
Welch is one of the lawyers charged with making sure the federal government is complying with the Flores Settlement Agreement, which has governed the care of children in U.S. immigration custody since 1997. The court settlement requires the government to house migrant minors in licensed facilities, barring certain exceptions.
The Biden administration has acknowledged that it “may be unable to meet the requirements” of the Flores Agreement if Abbott’s proclamation takes effect. But despite its threat to pursue legal action, the administration has not filed a lawsuit against the Texas governor.
In a statement to CBS News, HHS said it is “currently examining all the legal options available at its disposal to ensure that our shelters continue to provide services to the unaccompanied minors in our care.”
“Licensing is a cornerstone of the requirements we ask from our partners operating the shelters in Texas and across the country,” the department added. “These licensing changes are only creating uncertainty and instability for our program.”
The Texas exemption that permits shelters housing migrant minors to operate unlicensed starting in September is also temporary. The emergency rule can only be in effect for up to 120 days. It can be renewed, but only for 60 days.
The uncertainty hanging over the shelters in Texas comes amid a spike in the number of unaccompanied minors crossing the U.S.-Mexico border.
U.S. border agents likely encountered more than 19,000 unaccompanied children in July, an all-time monthly high, according to a top Department of Homeland Security official. On Thursday morning, U.S. Border Patrol was holding nearly 2,800 unaccompanied minors.
HHS was housing another 14,500 migrant children in shelters and “emergency intake sites” on Thursday morning, according to government statistics.
The Biden administration set up more than a dozen HHS-overseen emergency intake sites this spring to expedite the release of unaccompanied minors from short-term Border Patrol facilities, which were overcrowded at the time.
It has since closed most of these sites, but four remain open, including a tent camp inside the Fort Bliss Army base that has been under scrutiny due to reports of subpar conditions and inadequate services.
In early June, after the Biden administration expressed concern about his proclamation, Abbott countered that the federal government had failed to inform Texas that it would erect several emergency housing sites in the state.
Abbott pointed out in his letter to HHS Secretary Xavier Becerra that the federal government’s emergency sites are not licensed by Texas and have no state oversight.
“These facilities and the heavy burdens they impose on Texas are highly objectionable, but they also undercut your newfound concern about violating the Flores Agreement,” Abbott wrote.
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