Hundreds of children have been held by Border Patrol for more than 10 days. The legal limit is 72 hours

As the number of unaccompanied children in U.S. Border Patrol custody reached a record high of more than 4,200 this week, the PBS NewsHour has reviewed data that shows hundreds of children have been detained for longer than 10 days.

As of Tuesday morning, more than 3,000 of those children had been in custody longer than the 72 hours allowed by law. Of that group, more than 2,000 children had been in custody longer than 120 hours, or five days. And more than 300 of those children had been in custody for more than 240 hours, or longer than 10 days.

The data is part of the agencies’ internal daily metrics, tracking activity at the U.S. southern border. The NewsHour was given the chance to review part of the data by a source who had access to this data but was unauthorized to speak to the media.

The sudden surge is leading to conditions reminiscent of those seen during previous increases in crossings in 2018-2019, during which six migrant children died in U.S. government custody.

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In a single day this week, according to the data, border authorities encountered more than 560 unaccompanied children, and nearly 1,400 family members, including children. Though the vast majority of people crossing the border are immediately expelled under a pandemic-related rule known as Title 42, implemented under former President Donald Trump, the Biden administration modified the rule to allow unaccompanied children and some families with young children to stay in the U.S. while they await immigration proceedings.

A spokesperson from the Department of Homeland Security reached for comment would not confirm the specific data reviewed by PBS, saying the agency publishes monthly data on unaccompanied minors but “does not provide daily in-custody numbers as they are considered operationally sensitive,” and that “numbers fluctuate on a constant basis. The number it shares one morning may be different by the afternoon and the next day.”

The Border Patrol facilities in which the children are being held were designed for single adults and have been compared to jail-like settings. During this surge of unaccompanied minors crossing the U.S. southern border, along with the growing number of families with children, the facilities have become dangerously crowded, even with reduced pandemic-level capacities. To date, no journalists have been granted access inside these facilities under the Biden administration.

In a statement today, Homeland Security Secretary Alejandro Mayorkas called the situation at the border “difficult,” and said his team was “working around the clock to manage it, and we will continue to do so.” But Mayorkas also acknowledged that at the current rate, the U.S. is “on pace to encounter more individuals on the southwest border than we have in the last 20 years.”

This comes as President Joe Biden faces growing criticism from Republicans, a group of whom traveled to the border on Monday to call attention to the situation, as well as from within his own party, which is trying to advance its first package of immigration reform in the House this week. Democratic Congressman Henry Cueller, whose Texas district is located at the border, told the NewsHour’s Judy Woodruff he warned the White House of what might come.

“Even within a week of inauguration,” Cuellar said, “I was telling my contacts at the White House, pay attention to what is happening, because, again, if you don’t handle this quickly and in the right way, it is going to get out of hand.”

On Monday, White House Press Secretary Jen Psaki told the NewsHour’s Yamiche Alcindor that the conditions children are being held in at the border are “not acceptable.”

By law, children under the age of 18 who cross the border are meant to be processed by Customs and Border Protection (CBP), and transferred to the Department of Health and Human Services within 72 hours.

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In his statement today, Mayorkas conceded, “The Border Patrol facilities have become crowded with children and the 72-hour timeframe for the transfer of children from the Border Patrol to HHS is not always met.”

Bob Carey served as director of the HHS agency responsible for the care and custody of migrant children — the Office of Refugee Resettlement, or ORR — from 2015 to 2017 under former President Barack Obama. He says children being held in “a law enforcement custodial situation” is “not ideal.”

“These are not facilities that were designed to take care of children,” Carey said. “ORR and HHS are human service agencies. There’s a reason Congress elected to transfer that responsibility … to HHS.”

During the 2014 surge of unaccompanied minors under the Obama administration, Carey says “every effort was being made to make sure the children didn’t back up at the border. Because no one wanted that to happen.”

The Homeland Security spokesperson agreed, saying “Border Patrol stations are not meant to hold children long-term,” and pointing out that children coming into Border Patrol custody are moved to “the front of the line for processing – in front of single adults, in front of family units.” The spokesperson noted that their ability to move children out of their care is “directly tied to available space” at HHS.

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HHS runs a nationwide shelter system of about 200 facilities to safely house migrant children released from Border Patrol custody until they can be reunited with vetted family or sponsors. But those shelters are also full, operating at limited pandemic capacity, and a multi-agency government effort is now underway to quickly procure and set up thousands of additional beds at emergency influx shelters. FEMA has been deployed to help with the transportation and sheltering of migrant children.

Carey says there are challenges inherent in finding shelter, but that task is “really tough when children are coming across in these numbers.”

“There are both staffing and social distancing issues,” Carey said. “Hiring staff, even for an influx facility — they have to be qualified to work with children, have a background check, ensure they have credentials. None of that happens overnight, and that’s further complicated by the pandemic.”

The process of moving minors out of HHS care and into the care of vetted families and sponsors has also slowed, further adding to the backlog of children in U.S. government custody.

Data reviewed by the PBS NewsHour showed as of Monday, more than 9,300 children were in HHS custody. On that single day, HHS received more than 400 children into its custody, and discharged only 153. Weekly average figures dating back to January 2021 show hundreds more children coming into the shelter system than being moved out of it.

At publishing time, the Office of Refugee Resettlement had not yet responded to a request for comment.

Carey called the trend, “simply not sustainable,” though he warned that accelerating the speed at which children are moved out to families or sponsors is “a balancing act,” with officials working to ensure vetting processes aren’t cut short, potentially compromising the children’s safety.

He hailed the government’s decision to move HHS staff into border facilities to speed up the process of linking children with family in the U.S., and said the impact of the Trump administration’s decision to let immigration enforcement agencies use family’s information against them had a “chilling effect” on the process.

The previous administration’s decision to shut down access at the border, he said, also helped fuel the surge now being seen.

“This is the crisis of the moment,” Carey said. “But there was a backup at the border … There were people living under horrific circumstances who couldn’t go back to their country of origin, so we knew they were going to try and enter the U.S.”