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Texas effort to bar state shelters from housing migrant children could put Biden in a bind

The Biden administration is scrambling to respond to Texas Governor Greg Abbott's efforts to stop shelters in the state from housing migrant children who cross the southern border without their parents.

In an internal message to groups that operate housing facilities, Cindy Huang, the director of the Office of Refugee Resettlement, a federal agency, said Abbott's directive "would likely impact" shelters' "ability to care for unaccompanied migrant children."

Huang and Department of Health and Human Services (HHS) lawyers are set to discuss the repercussions of the Texas directive with shelter officials on Monday, according to three people familiar with the scheduled call.

As part of a state disaster declaration issued on Memorial Day, Abbott, a Republican, directed state authorities to stop the licensing of shelters and foster care programs housing migrant children. The Texas Health and Human Services Commission, the state agency that grants the licenses, has since instructed these shelters to "wind down any operations" by August 30.

In her message on Tuesday, Huang said the refugee office has been assessing Abbott's directive but noted the Biden administration does not currently plan to shutter any facilities for unaccompanied minors. 

However, for-profit and nonprofit groups that operate child housing facilities in Texas could be forced to stop sheltering migrant minors if they lose state licensing, four shelter officials told CBS News. 

That could impact 52 state-licensed shelters and foster care programs in Texas with more than 8,600 beds for migrant children, according to state data. As of late May, the network of facilities was holding 4,200 unaccompanied minors — or about 46% of the state-licensed beds the federal refugee agency currently has across the country.

Losing state licensing could also jeopardize shelters' funding and contractual obligations. The refugee agency said it only contracts programs that are "appropriately licensed" to care for children and that facilities it funds must comply with state licensing requirements. 

The scenario could force the Biden administration to transfer more migrant children to the emergency sites it has set up in work camps, convention centers and military installations like the Fort Bliss Army base. Unlike the traditional, state-licensed shelters, these emergency facilities are directly overseen by federal officials and do not have licenses to care for minors.

"I think it would be catastrophic, particularly for the welfare of children," one shelter operator told CBS News. "The only real option if they lose that many licensed beds is to move them to the emergency sites. Where else are they going to go?"

A young migrant waits for his turn to take a shower at the Donna Department of Homeland Security holding facility, the main detention center for unaccompanied children in the Rio Grande Valley in Donna, Texas on March 30, 2021. DARIO LOPEZ-MILLS/POOL/AFP via Getty Images

As of Thursday morning, the refugee office was housing 16,700 migrant children, according to government data. The federal agency is responsible for placing these minors with family members in the U.S., including parents, grandparents, uncles, aunts and cousins.

For weeks, advocates and lawyers have expressed concern about conditions inside some of the emergency sites established this spring. Children held at some of the sites, which have lower standards of care than traditional shelters, have reported prolonged stays in U.S. custody, subpar conditions and limited access to services like case management.

The closure of state-licensed shelters in Texas could also lead to more migrant children being stranded in Border Patrol holding facilities, which are not supposed to hold minors beyond 72 hours.

In March and early April, Border Patrol facilities were dangerously overcrowded, holding nearly 5,800 unaccompanied minors at one point. Since the establishment of the HHS emergency sites, the number of unaccompanied children in Border Patrol detention has decreased dramatically. As of Thursday morning, it stood below 800.

Abbott's directive could also place the Biden administration in a legal bind. A landmark court settlement known as the Flores Agreement requires the government to place migrant children in licensed facilities "as expeditiously as possible." 

If Texas shelters lose their licenses, however, more children could be housed in unlicensed facilities.

"The Flores Settlement Agreement requires the federal government to place children in licensed facilities," Neha Desai, a lawyer who represents children in the landmark court case, told CBS News. "Compromising the government's ability to fulfill this critical obligation at a time when licensed bed capacity is already far below what is needed reflects a callous disregard for the welfare of these vulnerable children."

HHS representatives did not say how the department will respond to Texas' order. 

In his order, Abbott argued Texas was being commandeered into overseeing state-licensed shelters as a result of a "migrant detention crisis caused by the acts or omissions of the federal government." He also suggested that sheltering unaccompanied children in Texas negatively affected the state's ability to care for U.S. citizen children in foster care.

Asked about concerns related to the repercussions of the Texas disaster declaration, Renae Eze, Abbott's press secretary, echoed the governor's statements. "It's President Biden and his Administration—and them alone—who have the responsibility to take care of these children," Eze said in a statement.

Advocates said the treatment of migrant children is being politicized because of policy disagreements between the Texas governor and the Biden administration. Krish O'Mara Vignarajah, president of the Lutheran Immigration and Refugee Service, expressed concern about the prospect of other Republican leaders following Abbott's lead.

"Children fleeing some of the most desperate circumstances and seeking protection — no matter where they were born — should never be leveraged as political pawns," Vignarajah told CBS News.

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