Judge: Border Patrol's detention conditions in Az 'violate the Constitution'

A federal judge issued a permanent injunction against the Border Patrol's Tucson Sector on Wednesday, telling the agency that it cannot hold migrants, including families with children, for longer than 48 hours.

In his 40-page decision, U.S. District Judge David C. Bury ruled the conditions at the sector's eight stations are "presumptively punitive and violate the Constitution," and he blocked Border Patrol and parent agency U.S. Customs and Border Protection from holding people who have been processed by agents for more than 48 hours from "book-in time."

"Detention may not extend into a third night under the 'no longer than 48 hours' rule until CBP can provide conditions of confinement that meet detainees' basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional," he said.

Alvaro Huerta, a staff attorney with the National Immigration Law Center, said that he was "incredibly happy" with Bury's decision.

"CBP has not changed the way that it treats people in confinement, unless a court orders it," he said, adding that the case was "incredibly important" because it will "improve dramatically" conditions at Border Patrol's facilities.

"This sets constitutional minimums for the way that people should be treated," Huerta said. "We hope and expect this will have ramifications beyond the Tucson Sector," he said.

Bury's ruling came weeks after a seven-day trial, in which attorneys representing migrants held in the Tucson Sector argued that the agency holds immigrants in squalid and freezing cells that are often so overcrowded that people sleep in the bathroom stalls, with their heads near the toilet.

Testimony about squalid conditions

During the trial, two women testified that they endured this treatment for days, while an expert in prisons said that the conditions in Border Patrol's stations are "much more severe than anything I've seen in any jail."

"The evidence is undisputed that conditions of confinement at Tucson Sector CBP stations are substantially worse than conditions afforded criminal detainees at the Santa Cruz County jail or other jail facilities, where detainees are medically screened by medical professionals; have a bed with cloth sheets, blankets, and pillows, and an opportunity for uninterrupted sleep; have clean clothing, including second layers for warmth; showers, toothbrushes and toothpaste, and warm meals with a variety of food choices, including fruits and vegetables, accommodating food allergies and religious beliefs," he said.

TucsonSentinel.com requested comment from CBP officials, but did not receive a response. The agency has regularly refused to comment regarding ongoing lawsuits.

Suit began in 2015

The decision comes as part of a long-running class-action lawsuit filed in 2015, which argued that agency violates migrants' constitutional rights by regularly holding them for more than 24 hours in temporary facilities leading to conditions that advocates called "inhumane, punitive, and unconstitutional."

Filed on behalf of three people who were held by Border Patrol in the Tucson Sector, the lawsuit was certified as a class-action lawsuit by Bury, and continued for the next five years, until late 2019 when Bury ordered the lawsuit to trial, which began on January 13.

The California law firm Morrison & Foerster LLP led the suit, with support from the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area.

The lawsuit has provided a rarely seen view of Border Patrol's holding facilities in Arizona, showing the concrete detention areas that have become so notorious that cells are regularly called hieleras, or "iceboxes," by both agents and detainees.

After years of declining apprehensions, last fiscal year nearly 852,000 people — largely families with children, or children traveling alone — were taken into custody by Border Patrol. Many of these families were from three Central American countries, and most sought out BP agents and requested asylum.

In the Tucson Sector, around 63,500 people were taken into custody by U.S. Border Patrol, and about one-third were either families, or children who arrived in the U.S. without parents or guardians.

In 2016, Bury ordered the agency to abide by a preliminary injunction, but the testimony of the second woman, who was held in April 2019, may show that the agency continues to falter when it comes to the treatment of migrants, violating Bury's orders.

Bury noted that in 2019, the average time spent at the Tucson Sector's facilities, including stations in Ajo, Nogales, Willcox, Naco, and Tucson was 53.92 hours. Around 34 percent of 63,490 detainees were held longer than 48 hours, while another 9,7898 were held up to 72 hours, and more than 12,000 were held longer than 72 hours, Bury wrote.

Therefore, the acting Homeland Security Secretary Chad Wolf, and the other defendants "administer a detention system that deprives detainees, who are held in CBP stations, Tucson Sector, longer than 48 hours, of conditions of confinement that meet basic human needs," Bury wrote "because CBP holding cells are designed so as to preclude beds," and detainees are often forced to sleep in fully-lit holding cells on concrete floors.

During the trial in January, Border Patrol officials regularly argued that they were hamstrung by the ability of other agencies, including U.S. Immigration and Customs Enforcement, the U.S. Marshals Service, and Heath and Human Services, to accept immigrants, but while Bury's acknowledged this reality, he was unmoved by this argument, writing: "Considering the conditions of confinement in CBP holding cells in the context of holding these detainees for the purpose of civil immigration proceedings, the conditions of confinement are especially harsh and unrelated to the purpose of their confinement..

Bury acknowledged that there is "no evidence in this case of any intent by CBP to create punitive conditions of confinement." Rather, the evidence "reflects that CBP has stretched existing resources to provide the best conditions of confinement available under the circumstances," he wrote.

However, the challenged conditions are "punitive because in the context of CBP operations, there is no legitimate governmental interest for the extended detentions currently occurring at CBP facilities." Migrants "who are civil detainees, face conditions of confinement" that are "more restrictive" than what they would face in either a civil or criminal detention facility, Bury wrote.

'Constitutional baseline' for BP detention

Colette Reiner Mayer, a lawyer from Morrison & Foerster LLP who helped present the case in court, said that the case took five years largely because Border Patrol "consistently argued" that the stations are processing facilities meant for temporary holding, and are not subject to the same constitutional minimums as jails or prisons.

As the case moved forward, Border Patrol's detention facilities had become "ICE overflow," Mayer said, and as the backlog increased, people were "being held for longer and longer times."

"You can't have it both ways, you can say you're a processing facility, and then hold people for extended times," she said, adding that prior to Wednesday's decision, there was no clear ruling on minimum holding standards, leaving what she called a "pretty big gap in the constitutional structure."

Bury's decision recognized what clients of the San Francisco-based Lawyers' Committee for Civil Rights had been saying for years, said Bree Bernwanger. "Our clients have been telling us for years that conditions are punitive, and deprive people of their dignity."

Bernwanger noted that Bury's decision Wednesday also cemented his 2016 preliminary injunction, making his requirement that the agency provide sleeping mats and some ability to bathe permanent. But, she said, Bury also recognized that his previous order "did not go far enough."

She referred back to video and testimony from two witnesses, both identified in court only as "Witness A" and "Witness B" who described harrowing conditions at Border Patrol's facilities during their detention five years apart.

In video shown to the court in January, "Witness B" maneuvers her way through an overcrowded room to find a space to sleep, and ends up curled beneath her mylar blanket in front of a toilet stall.

During a conference call with reporters on Wednesday, "Witness B," a 20-year-old Honduran woman, described her treatment by agents after she crossed with her boyfriend and brother into Arizona in April 2019.

"Witness B" said she was pregnant and suffered from nausea for days while she was in the agency's custody. After days in BP custody, she said that "nobody paid attention to me," except for one agent, who tried to reassure her that her baby was going to be okay, even as she continued to vomit, she said. She was eventually taken to a hospital, where a doctor proscribed her anti-nausea medication, but even though she continued to vomit, she wasn't given the medicine until the next day.

"When I heard about the judge's decision, I felt really happy. Because I know that all the people who have to go to the decision center won't have to experience the same thing I did," she said through a translator. "And, knowing that my testimony affected the case, really makes me happy," she said.

Karolina Walters, a staff attorney with the American Immigration Council, said that Bury's decision "establishes a constitutional baseline about conditions in Border Patrol custody," adding that the impact of the decision "could be quite broad."

While Bury's decision is not binding for other district courts yet, Mayer said that the judge's decision was "very thorough" and it is likely that other courts will take note in future decisions. In the next few weeks, the court will hold a briefing on the specific terms that bind the Tucson Sector. "We'll expect to see more specifics on the requirements in the near future."