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ACLU asks judge to hold BP in contempt over missing evidence

The U.S. Border Patrol may be found in contempt of court after lawyers representing immigrants held in Southern Arizona detention facilities accused the agency of "irreparably" destroying video footage showing the conditions of holding rooms in the Tucson Sector.

On Monday, a coalition of civil rights groups, along with lawyers with Morrison and Forester LLP, filed a motion asking that U.S. District Court Judge David C. Bury hold the agency and federal lawyers in civil contempt of court, and appoint a data monitor to oversee the agency's handling of footage from video recorders in eight Tucson Sector stations.

Additionally, the plaintiffs have asked for more than $41,000 to cover technical and legal costs incurred in an attempt to review and recover corrupted digital video.

In the motion, Colette Reiner Mayer accused the agency of "stonewalling" and "bad faith" surrounding the video footage.

Mayer said that the agency knew that a computer update to the digital video recorders used in a facility in Tucson had corrupted the video, but "instead of fessing up to their failures" officials with Border Patrol "feigned ignorance."

In 2015, the American Civil Liberties Union of Arizona, backed by the American Immigration Council, the Lawyers Committee for Civil Rights, and the National immigration Law Center, filed a class-action lawsuit, arguing that Border Patrol regularly holds people for more than 24 hours in temporary facilities, subjecting immigrants to freezing, overcrowded cells without access to food, water, medical care and legal counsel.

Conditions at Border Patrol stations have become so notorious that cells are regularly called hieleras, or "iceboxes" by both agents and detainees.

In August 2015, Judge Bury ordered the agency to turn over video footage showing the conditions of hold room, but a month later, when it became clear that the agency was failing the preserve video footage, Judge Bury lambasted the agency for destroying evidence and ordered officials to turn over all the surveillance video. 

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However, while advocates asked Bury to considering the missing footage as evidence for their claims he refused to do so. But, he said he would not allow the agency to "take advantage of the missing evidence" and warned that he could reconsider the issue if agency's lawyers tried to use the lack of video evidence to make their case.

"Plaintiffs would be severely impaired if forced to rely on incomplete and spotty evidence, and clearly an adverse presumption would then be appropriate," Bury said. "If at any point in time, Defendants seek to obtain such an advantage from the lack of video tape evidence, the Court will entertain applying an adverse inference and will allow Plaintiffs to reurge this sanction."

In Monday's filing, Meyer asked the court to enforce this sanction.

In August 2016, advocates requested additional video from six Tucson Sector facilities, including all video from the Tucson station for January 2016, and on October 4, the agency shipped several hard-drives containing the requested video, wrote Meyer.

However, it soon became clear that video was missing and after a series of emails and phone calls, the agency admitted on Dec. 19 that there was a "unresolvable corruption issue with the archived footage." An update to four digital video recorders in the Tucson facility "restarted the systems" and the video footage was lost, Meyer wrote.

During the phone call, an official with Border Patrol said that the problem was discovered in June 2016 and the agency had "an internal meeting" regarding the problem. A similar problem could also affect the archives from at least six other stations.

The agency argued that since October or November 2016 it was "working to minimize" the number of updates to computer systems running the video recording software and that since December, "someone is actually checking the video archived each month to determine whether it is corrupted," Meyer wrote.

Additonally, video footage from November 2016 could also have been lost because there is a "problem" with another digital video recorder.

Despite the order from Bury that the agency "not destroy or record over any video surveillance tapes" and "preserve such surveillance tapes currently in possession" the agency has "failed to preserve evidence in this litigation by knowingly creating corrupted archives of video footage," Meyer wrote.

"The files destroyed this time are perhaps the most important evidence in this case," said Steve Kilar, a spokesman for the ACLU. "And we are asking the Court to take the extraordinary step of granting 'adverse inference,' which would mean that the Court will take the sworn testimonies of our clients as fact, since the only objective evidence to corroborate what they have described no longer exists."

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Bury has already issued a preliminary injunction against the agency over the treatment of immigrants in Border Patrol holding facilities.

In November, he ordered the agency to provide clean bedding for detainees, including a mat and a mylar survival blanket for all detainees held more than 12 hours; allow detainees access to showers if they are in custody for more than 12 hours; and follow its own Medical Screening Form at all stations, and ensure that agents follow their own requirements for the delivery of medical care. 

And, early this month, Bury rejected an argument that his orders had created "unexpected consequences" for federal officials, writing that the "facts and circumstances" had not changed, reiterating earlier comments that the agency could not "sidestep reality by relying on the structural limitations of Border Patrol detention facilities."

DHS and Customs and Border Protection have not responded to requests for comment regarding the decision, however, previously CBP has said that it does not comment on pending litigation.

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Ross D. Franklin/AP Pool Photo

Two young girls watch a soccer match on a television from their holding area at the CBP Nogales Placement Center in 2014. Other detainees sleep under foil blankets.