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Judge orders halt to controversial BP detention practices

A federal judge issued a preliminary injunction against the Border Patrol, saying that advocates in a class-action lawsuit against the agency have "presented persuasive evidence that the basic human needs of detainees are not being met" in Tucson Sector holding cells.

In a 29-page decision released Friday afternoon, U.S. District Judge David C. Bury said 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. 

As part of his preliminary injunction, Bury 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; follow its own Medical Screening Form at all stations, and ensure that agents follow their own requirements for the delivery of medical care. 

Finally, Bury 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. 

Bury also told Border Patrol that agents should ensure detainees had access to personal hygiene items, including toilet paper, toothbrushes, and toothpaste, and feminine hygiene products. And, agents are also required to ensure that baby food, diapers and meals were available for children in BP custody. 

Bury's decision comes as part of a class-action lawsuit filed against the agency, which said 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. 

During a hearing held on Monday and Tuesday, experts for Border Patrol said that the agency's holding facilities were similar to jails rather than long-term detention facilities and thus should follow those standards. However, Bury rejected this claim, saying that because many immigration detainees were held under civil law, rather than criminal, process, they entitled to more "'considerate treatment'" than those who are criminally detained." 

Holding a person in conditions that "significantly exceeds or is independent of the inherent discomforts of confinement" violates their Fifth and Fourteenth Amendment rights, Bury said. Holding immigrants in a situation that was "most restrictive" than conditions in a prison could be "cruel and unusual" punishment, he said. 

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Bury wrote that the conditions appeared to be designed to punish detainees because "it is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective." 

Bury also rejected the claim that Border Patrol's "hold rooms" were similar to jails because immigrants were regularly held up for 48 hours at the facilities. Unlike jails were a person is held for hours for processing, immigrants could face detention for days, Bury wrote. 

"The processing being conducted at the Border Patrol stations, whether or not it is being done for booking purposes, takes days," Bury said. 

The treatment includes a lack of bedding — immigrants are offered only thin mats and mylar survival blankets for warmth and comfort — while they have to attempt to sleep in noisy cells where the overhead lights are always on. Advocates say these conditions violate the civil rights of detainees

Bury wrote that the "harshness" caused by a lack of mats and the "inadequacy of the mylar blankets is compounded" by several other issues, including keeping the holding-cell light on 24-7, delivery a meal of frozen burritos and snacks at 4 a.m., and a constant movement of detainees throughout the night. 

Bury also said that cells were overcrowded requiring people to "lie cramped together and next to toilet facilities or to sit or stand up," and that "hard concrete floors and benches retain the cold caused by low thermostat temperatures and make it too hard and cold to sleep." 

On Aug. 18, the court released dozens of images culled from video surveillance cameras inside Border Patrol stations, providing a rarely seen view of federal holding facilities in Arizona, including the concrete detention areas that have become so notorious they are often called hieleras, or "iceboxes," by both agents and detainees.

Video evidence also shows that detainees were forced to sleep in cells while overhead lights remained on throughout the night.

In August, civil rights advocates asked for an injunction, requesting relief for anyone held in BP custody. The move was part of a class-action lawsuit filed last June by the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP, a California law firm.

As part of the injunction, advocates asked Bury to limit the detention of people in Tucson Sector facilities to under 12 hours, arguing that "hold rooms" at each of the sector's eight Border Patrol stations are "constantly illuminated" and "fail to provide an environment" for sleep because of "excess noise." 

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Advocates also noted that detainees are not given beds, mattresses or blankets. Instead, BP's Tucson Sector uses thin green mats and plastic mylar survival blankets that fail to keep people warm if they're trying to sleep on the floor or one on of the concrete benches built into the holding cells.

Bury wrote that advocates have "presented evidence of harm related to the conditions of confinement" which includes the "physiological effects of sleep deprivation" as well as the "constant discomfort that comes from an inadequate food supply, " and health risks related to exposure due to contaminated water and unsanitary cells." 

Bury said that these conditions also included "medical risks associated with being unable to continue taking prescription medications or being exposed to communicable diseases." 

According to data submitted to the court by Border Patrol, only 115 detainees out of 16,992 were able to take showers from June 10 to September 28, 2015. And, Bury noted a discrepancy. According to the agency 20 people took showers at the Casa Grande station, but Border Patrol agents told the court that "no shower facilities existed." 

The preliminary injunction will remain in place while the class-action lawsuit continues through 2017. 

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Court records

A still from a video camera inside one of the Tucson Sector's Border Patrol stations showing a group of men sleeping on the floor beneath mylar survival blankets