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Class-action suit claims Border Patrol violates immigrants' civil rights

More than 80% held more than 24 hours in temporary cells, violating agency's own policies

During a six-month period in 2013, people detained by the Border Patrol near Tucson were regularly held more than 24 hours in temporary facilities, breaking the agency's own policies and subjecting immigrants to freezing, overcrowded cells without access to food, water, medical care and legal council, according to a new federal class-action lawsuit.

Combining the statements of detainees and information from the agency obtained through the Freedom of Information Act by the American Immigration Council, the lawsuit contends that in the first six months of 2013 more than 80 percent of the people in Border Patrol custody in the Tucson Sector were held more than 24 hours, said the suit, filed Monday.

This contradicts the agency's own policies, including a 2008 memo which said that a detainee should not be held for more 12 hours and should be moved "promptly." 

However, in 2013 more than 58,000 people, including children and pregnant mothers were held two to three days, the AIC said. Many were forced to sleep on hard benches or concrete floors in concrete cells that have been come to be called hieleras, or "iceboxes" by both agents and detainees. 

This violates the Fifth Amendment rights of those detained and also violates the Administrative Procedure Act, which guides how federal agencies may set up their own guidelines, according to the suit.

The lawsuit asks a federal judge to intervene and require the agency to follow new guidelines enforced by a court order. 

"To my knowledge this is the first case of its kind in that it seeks a court order to fundamentally reform Border Patrol's notorious detention facilities," said James Lyall, an attorney with the ACLU of Arizona. 

Lyall is part of the Border Litigation Project, which has led five separate lawsuits against Border Patrol in the past 12 months, including a lawsuit regarding the First Amendment rights of protesters at checkpoint near Amado and complaint filed by an Arizona woman who said agents threatened her with a Taser and a knife during a 2013 stop.

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The recent lawsuit was filed in U.S. District Court of Arizona by four civil rights organizations and a California law firm on behalf of two unnamed plaintiffs and Norlan Flores, a Tucson man who was detained by U.S. Border Patrol after he was pulled over by police in August 2015

"It shocks the conscience," said Nora Preciado, staff attorney with the National Immigration Law Center. "They're not providing food, water, or sleeping arrangements for thousands of people, including women and children." 

"Our plaintiffs were detained for civil matters, but there is nothing civil about being deprived of water, provided inadequate or expired food, and being subjected to sleep deprivation," Preciado said. "We filed this lawsuit because the federal government has systemically failed to adhere to its own meager standards and constitutional requirements and thousands of people have suffered as a result."

Lyall said the conditions were "punitive" and part of a larger strategy to "enforce consequences to limit immigration."

"Consequences are another way of saying suffering," he said. 

In a statement, U.S. Customs and Border Protection said the agency takes the "safety and welfare of individuals in its custody seriously."

"This is consistently addressed in training and reinforced throughout an agent's career. On a daily basis, agents make every effort to ensure that those in our custody are given food, water, and medical attention as needed. CBP investigates all allegations of misconduct, and is committed to making continued progress in detainee treatment and the emphasis of policies that protect human life and treat individuals with dignity and respect," said the statement. 

The agency also said that the facilities are designed to be "short term in nature" and "provide for the security, safety and well-being of those in our custody and are maintained in accordance with applicable laws and policies." 

Over the past seven years, nearly a dozen humanitarian and immigration rights groups have produced reports highlighting severe problems in the agency's handling of immigrants at temporary holding facilities throughout the southwest border. 

Most recently, in October 2014, the group Guatemala Acupuncture and Medical Aid Project, a public health organization based in Tucson, produced a 91-page report contending widespread mistreatment of Central American and Mexican immigrant families by Border Patrol agents.

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This report echoed claims produced by the ACLU and five other immigrant rights groups in a a formal complaint against CBP in June 2014. 

That complaint relied on interviews with 113 unaccompanied minors, who claimed that the agency routinely denied food and water, refused medical care, and in some cases, subjected the children to stress positions and physical, mental and sexual abuse. 

In response, the Office of the Inspector General site issued two memos based on visits to 126 holding facilities and said that with only a few exceptions, the Border Patrol was largely complaint with "law, regulations, and policies" affecting immigrant children. 

However, the inspectors only visited one Arizona facilities, the Nogales Placement Center, where hundreds of immigrant children were processed before sent on to officials Health and Human Services. 

OIG did find that temperatures were "inconsistent" in holding facilities, but ultimately concluded that the vast majority were "compliant." 

In June, CBP Commissioner R. Gil Kerlikowske told National Public Radio that some of the criticisms about the facility were "absolutely spot-on." 

"What I did not see, other than several complaints of offensive language, I didn't see complaints of assault, or use of force," Kerlikowske said. "I didn't see complaints where the children or the women said they had been assaulted or hurt or sexually assaulted." 

While the agency dealt with a massive influx of family units and unaccompanied minors from May to July 2014, the problems appear to go further back. 

In 2012, Amnesty International released "In Hostile Terrain" and No More Deaths produced "Culture of Cruelty," which collected information from 2008 to 2011. 

"Thousands of people are subjected to these inhumane and intolerable conditions every year," said Mary Kenney, a staff attorney with the AIC. "Our investigation revealed that these filthy, overcrowded and punitive conditions are the norm in all eight Border Patrol stations within the Tucson Sector."

While the records collected by the AIC only cover the first six months of the 2013 fiscal year, the AIC believes that the records are a "representative sample" said Kenney.  

Named in the lawsuit is Homeland Security Secretary Jeh Johnson, along with the commissioner of Customs and Border Protection, and the chief of the Border Patrol. The lawsuit also names Manuel Padilla Jr., the Tucson Sector's chief patrol agent, and Jeffrey Self, the commander of the Arizona Joint Field Command. 

"From the moment these people are apprehended they are treated in a way that can only be described as subhuman," said Preciado. 

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Ross D. Franklin/AP Pool Photo

Dozens of unaccompanied minors held at the U.S. Border Patrol's Nogales Processing Center on June 14, 2014, in Nogales as part of the agency's response to the influx of thousands of children into the United States through the Rio Grande Valley.

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