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Trial begins in drawn-out lawsuit over Border Patrol treatment of detained migrants

Expert witness calls overcrowding at facilities 'simply unacceptable'

An expert witness called overcrowding at Border Patrol detention facilities "simply unacceptable" during testimony Monday as part of a long-running lawsuit alleging that people are crowded into squalid, freezing cells while in the agency's custody.

The case, filed in 2015, went to trial beginning Monday at the federal courthouse in Tucson.

In their litigation, the plaintiffs—identified only as "John Doe et. al.,"—argued that the agency violating their constitutional rights by regularly holding them for more than 24 hours in temporary facilities leading to conditions that advocates called "inhumane, punitive, and unconstitutional."

The lawsuit has provided a rarely seen view of Border Patrol's holding facilities in Arizona, showing the concrete detention areas that have become so notorious that cells are regularly called hieleras, or "iceboxes," by both agents and detainees.

After years of declining apprehensions, last fiscal year nearly 852,000 people — largely families with children, or children traveling alone — were taken into custody by Border Patrol. Many of these families were from three Central American countries, and most sought out BP agents and requested asylum. 

As the numbers of families increased at the border, Border Patrol began releasing migrants after they were processed directly to humanitarian aid organizations in Tucson, prompting Pima County officials to fund a migrant shelter at an unused wing of the county's juvenile detention facility.

The trial follows years of litigation over the treatment of detainees, including women and children, at the agency's Southern Arizona facilities, which began in 2015 with three people who sued the federal government, with help from the California law firm Morrison & Foerster LLP, and supported by the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.

During his testimony Monday, Eldon Vail, a former head of Washington state's prison system, said that he had reviewed hundreds of documents, along with video and photographs, and that he concluded that the agency's detention areas were fundamentally overcrowded.

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"It is not sustainable to keep people in these conditions," he said. "Especially  as the numbers keep increasing." 

Vail said that he had also visited the Border Patrol's Tucson Sector headquarters, known as the Tucson Coordination Center, three times, including a visit in September 2019. 

While the agency has a "complex mission," the agency's "capacity problems" mean that people are staying in the detention areas longer and longer, and he criticized the overcrowded cells, arguing that putting as many as 39 people in a holding area meant for less than dozen could "compromise" the health and hygiene of those in the room.

"Their personal hygiene is compromised in a way that shouldn't be done to anyone," he said.

Vail noted that Border Patrol was violating rules set up by the American Correctional Association, a nonprofit trade association and accreditation, that guides private and public prisons by packing the holding areas. But, the Border Patrol's "oddly-shaped rooms" made this difficult.

"It's human to give people a little more room," he said. He also pointed out that in some cases, while some holding areas were packed, other rooms were nearly empty. 

As he testified, lawyers for the plaintiffs had him review video from holding areas across the Tucson Sector, showing rooms that were often packed with people. 

Only one video was shown to the courtroom, and in the video captured from a surveillance camera a man works his way across a sea of silvery mylar blankets, stepping carefully over the bodies of people sleeping on plastic mats as he makes his way to a single toilet stall. He opens the door, and finds that in the short-walled stall another man is sleeping with the silvery mylar blanket tucked over his head to keep out the always-on lights of a Border Patrol station. 

Vail also noted that in one cell, 39 people were packed in, including about "half moms and half kids" for more than 12 hours, some trying to sleep on concrete benches, while others nestled into corners, blocking access to the doors, the trash cans, a water jug set in the middle of the room, and the three toilet stalls.  "It's difficult to differentiate what's human, and what's just a pile of mylar," he said. 

Vail was one of two witnesses, who testified on behalf of plaintiffs, following Robert Miś, a data analyst who presented several exhibits showing how many people spent as many as 72 hours or more in Border Patrol custody, often in cramped and overcrowded cells. 

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Meanwhile, the government is represented by a team of lawyers, including Sarah Fabian, a Justice Department lawyer who found herself the target of outrage after she argued during a similar case at the Ninth Circuit Court of Appeals that the federal government was not legally required to provide toothbrushes, soap or adequate sleep. 

Fabian made her argument as part of the Trump administration's attempt to undo the Flores Settlement Agreement, the result of a 1997 lawsuit over the treatment of immigrant kids which was settled after the government agreed to certain rules. As the Trump administration moved to block the numbers of so-called "unaccompanied minors," or children arriving without parents or guardians, the government attempted to rewrite the Flores Settlement. 

After Fabian made her point, Senior U.S. Circuit Judge A. Wallace Tashima, called her argument "inconceivable" in a widely-watched video of the arguments, published by the circuit court on YouTube. 

"To me it’s more like it’s within everybody’s common understanding: If you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary,” said Tashima. "Wouldn’t everybody agree to that? Would you agree to that?" 

Before the case began, U.S. District Court Judge David C. Bury admonished lawyers on both sides, saying that plaintiffs and defendants should be willing to stipulate some facts in the case. "Essentially, we know everything about these detainees, but what happens with these detainees, how these human beings are affected by those conditions and why, that’s what this case is about,” Bury said.

Lawyers, he said had submitted "thousands" of documents, but "no one agreed-to fact," he said, adding that had the lawyers agreed to some facts, the case could take three days, rather than as many as 13. "Here we start, and not one fact that has been agreed to. That's not good folks." 

As they began with the first witness, both sides said they would include data that included November 2019. "And, now we run into the problems of continuing conditions," Bury quipped. 

While the lawsuit moved forward, Bury agreed to unseal hundreds of pages of documents, along with photos that provided a rarely seen view of Border Patrol's holding facilities along the Southwest. In the photos, reported by TucsonSentinel.com in June 2016, the images show sparse cells, where garbage and paper tissues accumulate in the corner, and the stainless steel toilets are streaked with rust.

Bury has also ordered the agency to provide sleeping mats to detainees, and he ordered them to provide access to showers when available, and in final shot at the agency, he certified the case as a class-action lawsuit, and wrote that the suit would cover "all individuals who are now or in the future will be detained at a CBP facility within the Tucson Sector." 

The documents also illustrated the mundane maintenance that goes with running the facilities, including a log that shows temperatures at the Willcox station and the lack of water in one cell at the Casa Grande station, which meant that neither the toilet nor water fountain — contained in a single stainless steel cabinet — were available.

Bury was so convinced by some of the claims that in November 2016, he issued a preliminary injunction against Border Patrol, saying that advocates had "presented persuasive evidence that the basic human needs of detainees are not being met" in Tucson Sector holding cells. 

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.

During a hearing months earlier, experts for the Border Patrol said that the agency's holding facilities were more similar to jails rather than long-term detention facilities, but Bury rejected this claim, arguing that because immigration detainees were held under civil law, rather than a criminal process, they are entitled to more "'considerate treatment'" than those who are criminally detained."

And, he wrote that the "harshness" of the conditions at Border Patrol stations 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."

Border Patrol rejected a request for comment, saying only that it does not speak on "ongoing litigation." But, as government attorneys argued in a filing last week, the number of people in "a given hold room is never intended to create discomfort or challenges for those in custody, but rather is determined by operational concerns." 

"Food, water, sanitation, hygiene items, bedding, medical care, etc., are not withheld as a punitive measure, and station temperatures are not set for punitive purposes," they said. 

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AP Photo/Ross D. Franklin, Pool

Children sleep and watch television in a holding cell at the CBP Nogales Placement Center on Wednesday in 2014.