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CBP will pay $3.8M fees in civil rights suit over conditions for migrants

Long-running case closed in 2020, but fight over attorney charges continued

U.S. Customs and Border Protection has agreed to pay more than $3.8 million in attorney's fees and other litigation expenses stemming from a class-action lawsuit launched against the agency over the treatment and care of migrants in custody in Southern Arizona.

The lawsuit was filed in 2015 on behalf of three people who were held in one of the Border Patrol's eight stations in the Tucson Sector, which covers the Arizona-Mexico border from Yuma County to the New Mexico line. Advocates said that the conditions were "inhumane, punitive, and unconstitutional," and said that people apprehended endured squalid conditions, including freezing cells that were often dirty where they were served spoiled food, and their requests for routine medical care were either ignored or put on hold.

In January 2020, U.S. District Judge David S. Bury held a bench trial, and over seven days, lawyers from the California law firm Morrison & Foerster LLP—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—presented the case that their clients' constitutional rights were violated by the conditions of the Border Patrol's stations.

The lawsuit 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.

Bury agreed, ruling that the conditions at the sector's eight stations are "presumptively punitive and violate the Constitution," and he blocked Border Patrol from holding people who have been processed by agents for more than 48 hours from "book-in time."

In his 40-page decision, issued in February 2020, Bury issued a permanent injunction blocking Border Patrol from keeping people in holding cells for more than 48 hours.

"Detention may not extend into a third night under the 'no longer than 48 hours' rule until CBP can provide conditions of confinement that meet detainees' basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional," he said.

While the firms did not seek, and the court did not award monetary damages, last year, advocates moved to have the agency cover attorney fees, asking for around $4.8 million. However, lawyers for the federal government pushed back, and by September offered to pay around $3.1 million. In October, the two parties met in a joint settlement conference before U.S. District Judge Eric J. Markovich, and during a full-day hearing, the two groups settled on $3,832,052.

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Bury agreed to the settlement, and ordered Border Patrol to post the settlement order in each of the Tucson Sector stations, as well as on the ACLU of Arizona's website.

During the trial, two women testified that they endured cells that were so overcrowded that people sleep in the bathroom stalls, with their heads near the toilet, conditions that prompted one expert in prisons to tell the court that conditions in the Border Patrol's stations were "much more severe than anything I've seen in any jail."

"The evidence is undisputed that conditions of confinement at Tucson Sector CBP stations are substantially worse than conditions afforded criminal detainees at the Santa Cruz County jail or other jail facilities, where detainees are medically screened by medical professionals; have a bed with cloth sheets, blankets, and pillows, and an opportunity for uninterrupted sleep; have clean clothing, including second layers for warmth; showers, toothbrushes and toothpaste, and warm meals with a variety of food choices, including fruits and vegetables, accommodating food allergies and religious beliefs," Bury wrote.

The lawsuit was originally named for the two Jane Does, but the formal name of the case has changed a half-dozen times as the Homeland Security Secretary and other officials were replaced during the Trump administration. The case is now known as Doe v. Mayorkas, named for Alejandro Mayorkas, the current DHS head under the Biden administration.

During the trial in January, Border Patrol officials regularly argued that they were hamstrung by the ability of other agencies, including U.S. Immigration and Customs Enforcement, the U.S. Marshals Service, and Heath and Human Services, to accept immigrants, but while Bury's acknowledged this reality, he was unmoved by this argument, writing: "Considering the conditions of confinement in CBP holding cells in the context of holding these detainees for the purpose of civil immigration proceedings, the conditions of confinement are especially harsh and unrelated to the purpose of their confinement.

Bury acknowledged that there is "no evidence in this case of any intent by CBP to create punitive conditions of confinement." Rather, the evidence "reflects that CBP has stretched existing resources to provide the best conditions of confinement available under the circumstances," he wrote.

However, the challenged conditions are "punitive because in the context of CBP operations, there is no legitimate governmental interest for the extended detentions currently occurring at CBP facilities." Migrants "who are civil detainees, face conditions of confinement" that are "more restrictive" than what they would face in either a civil or criminal detention facility, Bury wrote.

Following the lawsuit, Border Patrol began upgrading its facilities, adding showers in some stations, and seeking bedding for migrants who were held more than 48 hours.

However, the COVID-19 pandemic derailed these efforts, especially once the agency was given the power to rapidly deport people under Title 42—a public health order issued by the CDC that allows the agency to expel people who have traveled through a country with significant COVID-19 infections.

That order has remained in place through the transition from the Trump administration into the Biden administration. In January, out of 153,941 encounters between migrants and Border Patrol agents, roughly 51 percent were immediately processed and expelled, while just 75,455 were held in custody under Title 8—which includes both people prosecuted for immigration-related crimes, as well as those who seek asylum and are allowed to stay in the U.S.

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

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