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Detainees taking lawsuit over conditions at BP facilities to trial

A long-running class-action lawsuit over the treatment of detainees at Tucson Sector Border Patrol stations will head to trial later this year after a federal judge rejected a motion to force the agency to provide beds or mattresses raised off the floor for those being held, including women and children.

In his 11-page order issued late Friday, U.S. District Judge David C. Bury rejected a motion, filed by the law firm leading the suit with an alliance of civil rights groups, that would have required Border Patrol to provide raised beds to anyone in the agency's custody for more than 12 hours.

Bury rejected the motion and said that both parties have 30 days to file, and the court should schedule a pretrial conference as "this case is ready for trial."

"Increased media scrutiny directed at these holding facilities across Border Patrol sectors supports that people are being held in conditions that are at least as bad, if not worse, as we have shown in our case," said Billy Peard, a lawyer with the American Civil Liberties Union of Arizona. "We’re confident the court will agree when we go to trial."

Neither Tucson Sector Border Patrol nor Homeland Security responded to a request for comment from TucsonSentinel.com, however, officials have said in previous instances that they cannot comment on pending litigation.

In November 2015, the ACLU and other civil rights groups, filed a class-action suit on behalf of Norlan Flores and several other unnamed immigrants to force the agency to change its practices. They argued that detained immigrants are regularly held for more than 24 hours in dirty, cold and overcrowded cells, where they experience sleep deprivation and other problems, potentially violating the agency's own standards.

Over the past decade, nearly a dozen humanitarian and immigration rights groups have issued sharp criticisms of U.S. Customs and Border Protection's handling of immigrants at temporary holding facilities throughout the southwest border region. In one report, children said they were held in cells where the lights were always on, and were only given mylar survival blankets, and often said they were freezing in the cells. In fact, the issue of cold cells has become so notorious that agents and immigrants alike call them "hieleras" — "iceboxes" in Spanish.

And, in recent months, the issue has come into sharper focus after two young children died in Border Patrol custody in December.

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On Dec. 8, seven-year-old Jakelin Amei Rosmery Caal Maquin died in an El Paso hospital 26 hours after she was apprehended, along with her father and 161 other people, by Border Patrol agents near Antelope Wells, N.M., a lonely stretch of terrain in the state's boot-heel. Then, on Christmas Eve, eight-year-old Felipe Gomez Alonzo died of complications from the flu at a hospital in Alamagordo, N.M.

After the death of Caal Maquin, the Office of Inspector General for Homeland Security said it would investigate.

Peard noted that the recent "tragic and preventable deaths of two children" in Border Patrol custody, "highlight the need for better detention conditions and heightened oversight of these facilities."

Bury's order "only covers one aspect of the unconstitutional conditions in Border Patrol’s detention facilities—the lack of beds," Peard said. "The court has simply decided that the issue of beds is more apt for trial, along with all of our other claims. As it currently stands, Border Patrol must continue to provide mats after 12 hours for anyone in detention in any of the eight facilities in the Tucson Sector," he said.

The ACLU would pursue several other claims at trial, Peard said, including a "lack of adequate medical screening and medical care, insufficient access to clean water, insufficient and inadequate food, extremely cold temperatures, unsanitary conditions," along with a lack of access to showers, and overcrowded cells.

The lawsuit also comes as the agency, along with Enforcement and Removal Operations at U.S. Immigration and Customs Enforcement, and others, struggle to deal with an influx of families from Central America, who have crossed into the U.S. in remote areas, including near Lukeville and Yuma, Arizona.

Just last week, CBP announced that 750 people, including families with children, and children traveling without parents or guardians, waded through the Colorado River and surrendered to Border Patrol agents, following an increasing trend all across the U.S.-Mexico border.

After the original complaint and a series of motions and hearings, Bury issued a preliminary injunction that remains in effect, arguing that the agency could not "sidestep reality by relying on the structural limitations of Border Patrol detention facilities" and must allow detained immigrants, including women and children, to sleep in holding cells as well as receive regular meals and take showers.

He also ordered the agency to provide clean bedding for detainees, including a sleeping mat in addition to the regularly-issued mylar survival blanket for all detainees held more than 12 hours. Bury also ordered the agency to monitor itself for compliance ensuring that sinks and toilets were working, that notoriously cold cells were kept at higher temperatures, and that cells were sanitary.

The government appealed, arguing that Bury's injunction was "overly rigid or burdensome," and asked the Ninth Circuit Court of Appeals to intervene. However, in December 2017, a three-judge panel of the Ninth Circuit Court of Appeals rebuffed their appeal, calling the government's arguments "not persuasive."

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"We hold the district court did not abuse its discretion and properly applied precedent such that neither side has shown that the limited preliminary injunction is illogical, implausible, or without support in the record," wrote Judge Consuelo Callahan for the court.

This sent the case back to Bury, with the injunction in place.

On Friday, Bury rejected the idea that he should issue a summary judgement on the idea that "a lack of beds for detainees at CBP stations is punitive" because immigrants in the detention center may be both "civil detainees awaiting civil commitment" while others "may be awaiting criminal commitment."

In her motion, Louise Stoupe with Morrison & Forrester, LLP, the law firm that is leading the lawsuit, wrote that while Bury' requirement that while the mats are "an improvement over the cold concrete," surveillance video showed that people were crowded together on the floor. "Even with the mats, detainees are forced to lie on dirty floors and next to toilets and garbage receptacles. These conditions are indecent and plainly inhibit sleep," Stoupe wrote.

"The law is clear: Civil detainees are entitled to beds for a detention that spans any amount of time in which sleep is necessary," she wrote.

Bury rejected the motion, however, he said that this issue would be considered at trial.

"At trial, the Defendants shall be afforded an opportunity to rebut the presumptions that the conditions of confinement, including floor-sleeping with or without floor mats, are punitive because they are not related to 24/7 detainee processing," he said.

Bury seemed to appreciate the idea that CBP's detention facilities are not excessive for pre-commitment detention, but he also said that CBP "must show why the conditions of confinement at the CBP stations are not excessive."

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Advocates reviewing one of the Border Patrol's holding cells at the Border Patrol station in Tucson

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