Border Patrol quickly expelling most detained migrants in Az under CV-19 policy

Just 12 people have been held for longer than 48 hours in Tucson Sector custody over the last 30 days, as the agency increasingly relies on a provision employed during the outbreak of COVID-19 that allows agents to immediately expel most people back to Mexico. 

Many are being deported in under two hours, officials said.

In February, U.S. District Judge David C. Bury ruled the conditions at the sector's eight stations are "presumptively punitive and violate the Constitution," and he blocked CBP from holding people who have been processed by agents for more than 48 hours from "book-in time."

Bury's decision came weeks after a seven-day trial, in which attorneys representing migrants held in the Tucson Sector argued that the agency holds immigrants in squalid and freezing cells that are often so overcrowded that people sleep in the bathroom stalls, with their heads near the toilet.

As Bury wrote 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."

In a declaration required as part of the permanent injunction, Miguel Leon, the assistant chief patrol agent in the sector, reported to the court Friday that the dozen detainees were held longer than 48 hours. Leon is not required to report all detainees to the court every 30 days, however, so it remains unclear how many detainees were in Border Patrol's custody over the past 30 days. However, monthly apprehension data shows that 2,611 people were taken into custody in the Tucson Sector in April—this includes 76 people traveling as families, and 161 children traveling without parents or guardians. 

While the agency does not release custody numbers, instead relying on releases of apprehension data each month, a long-running lawsuit over conditions at the Tucson Sector's detention means that the agency is now required to report custody information to a federal judge. 

Earlier this week, Acting Homeland Security Secretary Chad Wolf visited the Tucson Sector and said that around 80 percent of people taken into custody by Border Patrol agents were deported in as little as two hours. 

Beginning on March 21, U.S. Customs and Border Protection, the Border Patrol's parent agency, began the rapid deportation process sending more than 21,000 people back to Mexico, including more than 15,000 in April. The agency said that expelling migrants back to Mexico was required "in the interest of public health," and allows the agency to avoid having to hold people in Border Patrol stations.

This is a decline of nearly 49 percent from a month earlier. However, Tucson Sector is also only one of two sectors that is experiencing an increase in the number of both families coming into the sector and the number of unaccompanied children. 

"That is a significant difference compared to recent months," Leon said. "In large part, this is due to the COVID-19 pandemic and the exercise of authority under Title 42 to immediately expel individuals who cross the border into the United States from Mexico." 

People "subject to the order will not be held in congregate areas for processing and instead will immediately be expelled to their country of last transit," CBP said. 

"These are individuals that come to us with little to no medical history, little to no travel history, and oftentimes with no identity documents," Wolf told the media Tuesday. "So it's very difficult to do any medical checks on them, understand where they've been and what they perhaps have been exposed to. So, we want to make sure that we're not exposing the front-line workforce to that." 

Traffic along the border has been dropping since last summer, when the agency took more than 144,000 people into custody in May, but that decline has increased as the border between the U.S. and Mexico has largely shut down. Compared to last April, the number of people picked up during the same time in 2020 has declined nearly 85 percent. 

During an interview on Fox News, the acting CBP commissioner said that as of May 10, the agency had 117 people in custody. 

"This strategy has kept a potentially vast number of migrants from overwhelming our healthcare systems along the border," Morgan argued. "And our Border Patrol agents are seeing fewer people attempt to cross the border illegally. In fact, CBP’s encounters with migrant individuals have dropped to approximately 500 a day."

Wolf credited the travel restrictions with a 60 to 70 percent decline in border traffic, later adding that when he toured the Border Patrol's Tucson station, which includes the Tucson Coordination Center, the sector's headquarters and intelligence hub, there were only four migrants inside.

Bury previously ordered the agency to provide sleeping mats, and showers, and the agency had attempted to fulfill this requirement by offering people rubber mats and slowly adding showers to many of its stations. Trump administration appealed this decision too, but were rebuffed by a three-judge panel, who wrote that the government's were "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," wrote Judge Consuelo Callahan. Border Patrol officials had argued that Bury's requirements would cause a burden during immigration surges, however, Callahan rejected this argument.

"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.

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.

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."

The government has appealed Bury's decision, but in the meantime, Leon's declaration shows that the agency is moving forward.

Leon said that Tucson Sector is renovating the Tucson Coordinator Center to "accommodate a limited number of beds meeting detention-industry standards and cloth blankets that are capable of being washed and reused," said Leon. 

Showers have also been provided for every detainee in custody for 48 hours since April 17, Leon said, adding that all but Tucson Sector stations have showers available. The stations in Casa Grande and Sonoita  do not have showers, but detainees are transported to either the Tucson Station or Nogales station for showers instead. 

Leon also told the judge that the agency was adding standalone drinking fountains. "This will be just one more source of potable water for detainees held in these rooms. The water will come from a filtered source and provided by Tucson Water which will be consistent with their water purity standards and is the same water" that agents drink, he said. 

In his declaration, Leon noted that sleeping mats are prohibited in the toilet areas, and the agents have placed signs in the detention spaces, he said. 

In April, CBP began soliciting contracts to feed detainees across the southwestern border, including the Tucson Sector. The $208 million contract would last for five years, and require a company to deliver pre-packaged, ready-to-eat meals to detainees three times a day. The contractor is expected to deliver about 1,500 meals per day, and on average about 300 meals per day, the agency said. 

This would be a significant departure from the agency's often ad-hoc meals, which included frozen burritos, re-heated in a microwave, as well as crackers, juices and other items, agents said during testimony in January. Detainees have regularly complained about the burritos, one of the major complaints filed by advocates. 

Leon told the court that the agency was in the process of obtaining a contract for a dietitian to advise the agency on the requirements for maintaining detainee health. "Currently, when detainees are in custody for more than 48 hours at the TCC, additional food items are offered, such as raisins, fruit cups, applesauce, brown rice, vegan, and gluten free options,"  Leon said.