Feds threaten to sue Texas over Gov. Greg Abbott's immigration 'disaster' declaration

EL PASO, Texas — The U.S. Department of Health and Human Services is threatening to sue Texas after Gov. Greg Abbott ordered the state to revoke licenses issued to shelters that house unaccompanied migrant children.

In a June 7 letter addressed to Abbott, HHS asked for clarification regarding how the governor's disaster declaration would be applied and issued a warning.

"Although we prefer to resolve this matter amicably," Deputy General Counsel Paul Rodriguez said, "HHS is consulting the U.S. Department of Justice and intends to pursue whatever appropriate legal action is necessary to ensure the safety and well-being of the vulnerable youth that Congress entrusted to ORR," the Office of Refugee Resettlement within HHS.

Through grants to nonprofits and other organizations, HHS' Office of Refugee Resettlement operates a network of more than 200 shelters nationwide that temporarily house children who have crossed the U.S.-Mexico border without a parent or legal guardian.

Fifty-two of the shelters are located in Texas and licensed by the state Health and Human Services department.

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

The federal HHS is required by law to take custody of unaccompanied children and reunite them with a sponsor in the U.S., usually a parent.

In his letter, Rodriguez said the governor's declaration "discriminates against the federal government and its grantees in violation of the Supremacy Clause and the well-established doctrine of intergovernmental immunity."

Abbott issued his disaster declaration on May 31, saying the "surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat of widespread and severe damage, injury and loss of life and property" in certain Texas counties.

The Texas Health and Human Services department subsequently issued follow-up instructions, telling state-licensed operators of shelters for unaccompanied migrant children that "by August 30, 2021, you must wind down any operations at your child-care facility that provide care under a federal contract to individuals who are not lawfully present in the United States."

Rodriguez said in his letter that federal law provides that unaccompanied children "do not accrue unlawful presence" while in the United States. HHS doesn't consider the minors in its care to be "unlawful immigrants," he said.

Veronica Escobar: Access to care they need'

El Paso is home to six shelters for unaccompanied minors, including locations run by the nonprofit Southwest Key, nonprofit BCFS and for-profit Caliburn International. 

More:Inside an El Paso shelter for unaccompanied migrant children

The shelters are set up to provide the children a safe place to sleep, hot meals, medical and mental health care, education and activities while case workers search for a sponsor in the U.S.

U.S. Rep. Veronica Escobar, D-El Paso, said in a post on Twitter following the governor's declaration: "Imagine being a governor and using your power to prevent vulnerable children from access to care they need. This attack is against children."

The nationwide shelter network currently has licensed capacity for 13,500 beds, although about 4,000 beds remain unavailable because of pandemic restrictions.

Closing the state-licensed locations in Texas could have significant consequences at a time of increased migration of children to the Southwest border.

More than 18,700 unaccompanied children arrived at the U.S.-Mexico border in March and nearly 17,000 more crossed in April. The majority are arriving in Texas.

To meet the need, HHS opened more than a dozen "emergency intake" sites at convention centers in Dallas, San Antonio, San Diego and Los Angeles and facilities elsewhere to shelter the children. It also stood up sprawling tents at Fort Bliss with capacity to house more than 5,000 children.

HHS has said the temporary locations are meant as as stop-gap measure to quickly get the children out of Border Patrol custody.

More:Workers describe sprawling tent city, 'deeply alarming' conditions for kids at Fort Bliss Shelter

The 52 licensed facilities in Texas "comprise a significant portion of ORR’s total operational footprint, and represent an indispensable component of the Federal immigration system," Rodriguez wrote in the letter. "If interpreted to reach ORR’s network of grantee-facilities in Texas, the May 31 Proclamation would be a direct attack on this system."

"Absent an understanding with Texas by June 11 that ensures ORR’s grantees will be able to retain their licenses subject to the same licensing standards as other child-care facilities operating in Texas, HHS will be prepared to pursue all available relief," he said.

Lauren Villagran can be reached at lvillagran@elpasotimes.com.