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9th Circuit: BP must provide blankets to detained immigrants

Border Patrol officials must provide sleeping mats and blanket to immigrants held in detention for more than 12 hours, a federal appeals court ruled, rejecting government arguments that the requirements were too" rigid" and "burdensome."

The rules had been set by a federal judge in Tucson as part of a class-action lawsuit over the treatment of detained migrants.

A three-judge panel from the 9th Circuit Court of Appeals ruled against agency, which challenged requirements set by U.S. District Judge David C. Bury in November 2016.

In the 31-page decision, Judge Consuelo Callahan wrote for the panel affirming Bury's decision, saying that he "carefully considered plaintiffs’ allegations of constitutional violations" when he issued the preliminary injunction. Federal lawyers, she wrote, failed to show that the district court misunderstood a Supreme Court ruling guiding the treatment of detainees and prisoners, and that the injunction was "overly rigid or burdensome."

The panel said that the government's arguments are "not persuasive."

"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," Callahan wrote.

The district court had "recognized the unique mission of the Border Patrol and, at least for the purposes of a preliminary injunction, reasonably balanced the government’s interests and the detainees’ constitutional rights," she wrote.

Border Patrol officials had argued that Bury's requirements would cause a burden during immigration surges, however, Callahan rejected this argument.

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“It is not unreasonable to infer that a person who has been detained in a station for over 12 hours (after having been awake for some period of time before his detention) has a right to lie down and rest, even in the middle of the day,” Callahan wrote.

She also said that it was unclear how providing mats after 12 hours is more burdensome, that such a requirement interferes with Border Patrol's identification process, and that the agency had failed to press for protection from such requirements during a surge.

However, the panel also rejected claims from advocates that the district court should have required the agency to provide detainees with beds, showers, and medical treatment provided by medical professionals.

Border Patrol stations are not set up to accommodate beds, and the agency has "neither the space for beds and mattresses, nor, presumably, beds and mattresses that might be immediately moved to the stations. Under these conditions, granting Plaintiffs the immediate preliminary relief of mats and Mylar blankets was reasonable," she wrote.

Bury's order provides "actual relief without imposing a huge cost on Defendants to alleviate what might be a temporary need."

Bury's decision stemmed from a lawsuit filed more than two years ago, which alleged that detained immigrants are regularly held for more than 24 hours in dirty, cold and overcrowded cells, where they experience sleep deprivation and a lack of medical care, violating their civil rights and the agency's own policies.

The class-action suit was 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.

Civil rights advocates asked for an injunction, requesting relief for anyone held in Border Patrol custody, and Bury agreed, writing that advocates had "presented persuasive evidence that the basic human needs of detainees at not being met" in Tucson Sector holding cells.

Bury required the agency to provide bedding materials, including a mat and a mylar survival blanket, for all detainees for more than 12 hours, along with access to showers or other means to wash themselves.

The agency could not "sidestep reality by relying on the structural limitations of Border Patrol detention facilities" and allow detained immigrants, including women and children, to sleep in holding cells, receive regular means and take showers. He also ordered the agency to ensure sinks and toilets were working, and that notoriously cold cells were kept at warmer temperatures.

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From June 10 to September 28, 2015 only about 122 people out of 16,992 were given a sleeping mat, and all others were given mylar survival blankets to keep warm, according to agency data.

Moreover, court records showed that during the same time period out of around 17,000 detainees, only about 3,000 were processed out of Border Patrol's custody within 12 hours. About 8,644 detainees were held for up to 23 hours, more than 1,200 were held for 71 hours, and 476 spent three days or more in Border Patrol custody.

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 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.