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Judge keeps order for BP to provide bedding, showers to detainees

Border Patrol officials must follow the terms of a preliminary injunction and provide clean bedding and showers for detainees in custody for more than 12 hours after a judge rejected a motion asking him to reconsider his orders.

In a terse 4-page decision released Tuesday, U.S. District Court Judge David C. Bury said that the "facts and circumstances" in the case had not changed. He said would not reconsider his November order, which requires the agency to provide bedding materials, including a mat and a mylar survival blanket, for all detainees held more than 12 hours, along with access to showers or other means to wash themselves. 

Bury's decision comes as part of a class-action lawsuit filed last year against U.S. Border Patrol, in which advocates claimed 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. 

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 suit 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.

Bury agreed with some of these assertions, writing in his injunction that advocates had "presented persuasive evidence that the basic human needs of detainees at not being met" in Tucson Sector holding cells. 

This includes women and children, as well as asylum seekers and refugees. 

In his decision, Bury wrote 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. 

Bury also ordered the agency to monitor itself for compliance in ensuring that sinks and toilets were working, that notoriously cold cells were kept at higher temperatures, and that cells were sanitary. And, Bury told Border Patrol that agents should ensure detainees had access to personal hygiene items, including toilet paper, toothbrushes, and toothpaste, and feminine hygiene products. Agents are also required to ensure that baby food, diapers and meals were available for children in BP custody. 

The injunction requires the agency to follow new standards as the class-action lawsuit moves forward. 

However, following his decision, federal lawyers filed a motion asking for reconsideration, arguing that Bury's order had resulted in "unexpected consequences" for the agency. Requiring the agency to provide bedding material resulted in decreased capacities at the station in Tucson. Providing enough space for people to lie down reduced capacity by more than 50 percent, the agency said. 

As a consequence, government lawyers complained that the new requirements resulted in longer processing times for immigrants, missed or delayed transfers to the other agencies, and longer detention times. 

They also complained that the new requirements limited the ability to use programs "designed to interrupt smuggling operations" in the Tucson Sector, and reduced the number of agents "performing their mission-related duties protecting the U.S. border in the Tucson Sector." 

This puts the agency in an "untenable position," as the agency may not be able to quickly transfer people to U.S. Immigration and Customs Enforcement and other law enforcement agencies, and new resources "cannot be procured quickly" leaving the agency "without adequate resources to fully perform its mission." 

"As a result, there is a strong likelihood that illegal immigration will increase in the Tucson Sector," the government said. 

Bury dismissed these arguments, writing that "the Court cannot suspend what it believes are constitutional rights." 

"Detainees were lying down in the holding cells" already, as most detainees are held longer than 12 hours, Bury wrote. 

"The Preliminary Injunction only requires these detainees be given mats," Bury said. "The Court expected lying down on a mat, which measures about 30 inches by 75 inches, to take up more space than being sandwiched side by side on the cell floors." 

Bury wrote that he saw "direct evidence of the crowded conditions in the Border Patrol station holding cells" and considered this when he granted the preliminary injunction.

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Bury also said that video evidence presented as part of the lawsuit showed some cells empty. 

Government lawyers had asked for a 24-hour window for giving out sleeping mats, but Bury quashed this argument as well, calling this an arbitrary measure "not rationally related to the need to sleep and lie down." 

In the motion, lawyers representing the agency said that they had shipped sleeping mats to some stations, and changed mealtimes to better accommodate sleeping. Additionally, the agency said that it had spent $3,500 for "adult body wipes" allowing detainees to wash themselves in stations that did not have showers, and was working on procuring another $20,000 worth of "Paper Shower, wet and dry body wipes." 

Bury seemed satisfied by this action, writing that his order did not require the agency to provide showers, but rather detainees should be provided "some means to maintain personal hygiene." 

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