Judge set to order Border Patrol to halt controversial detention practices
A federal judge said Tuesday that he will soon issue a preliminary injunction, ordering a halt to Border Patrol practices that see detainees kept sleepless in "hold rooms" at the agency's eight Southern Arizona stations, where they are exposed to constant noise, 24-hour bright lights and too-cold temperatures.
U.S. District Judge David C. Bury said that he wanted "a few days to think about it," but that he would likely issue an order shortly to require the agency to change how it treats detainees, including many women and children, who are often held for more than 24 hours in dirty, cold and overcrowded cells, where they experience sleep deprivation.
The treatment includes a lack of bedding — immigrants are offered only thin mats and mylar survival blankets for warmth and comfort — while they have to attempt to sleep in noisy cells where the overhead lights are always on. Advocates say these conditions violate the civil rights of detainees.
On Aug. 18, the court released dozens of images culled from video surveillance cameras inside Border Patrol stations, providing a rarely seen view of federal holding facilities in Arizona, including the concrete detention areas that have become so notorious they are often called hieleras, or "iceboxes," by both agents and detainees.
Video evidence also shows that detainees were forced to sleep in cells while overhead lights remained on throughout the night.
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 lawsuit 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.
As part of the injunction, advocates asked Bury to limit the detention of people in Tucson Sector facilities to under 12 hours, arguing that "hold rooms" at each of the sector's eight Border Patrol stations are "constantly illuminated" and "fail to provide an environment" for sleep because of "excess noise."
Advocates also noted that detainees are not given beds, mattresses or blankets. Instead, BP's Tucson Sector uses thin green mats and plastic mylar survival blankets that fail to keep people warm if they're trying to sleep on the floor or one on of the concrete benches built into the holding cells.
During the hearing, Bury gave several indications that he was considering issuing an injunction.
Following testimony by George Allen, chief assistant patrol agent in the Tucson Sector, the judge asked if facilities for the Santa Cruz County Sheriff's Office were better than the facilities for Border Patrol.
"If the Cochise County Sheriff arrests a man for armed robbery and takes him to Santa Cruz, does he have better facilities available to him than the 20,000 to 30,000 detainees you have? Does he have clothing? Food? Warmth?"
Allen responded yes each time, and then Bury asked: "Don’t you think it’s time that your facilities are modified or changed to accommodate the human need at least for sleep, if you’re going to keep somebody for 2 to 3 days?"
Allen defended his agency's practices noting that people were kept longer than 24 hours because of a complex situation, adding that his agency deals with "things that are beyond our control" including a reliance on other agencies, including U.S. Immigration and Customs Enforcement, U.S. Health and Human Services, and the U.S. Marshals Service, to pick up detainees. Allen also said that rules requiring that Mexican nationals be released back to their country during daylight hours also keep the agency from quickly moving people out of temporary holding facilities despite its own policies.
Allen noted that more Mexicans were asking for protection inside the United States using "credible fear" claims, and that there were far more people from Central America, as well as India and Pakistan, who could not be quickly processed and deported because while agents are required to be proficient in Spanish, they need to find translators for other languages.
Allen also said that some people may have warrants in other states, like Kansas, requiring special holds until the warrant could be confirmed and arrangements could be made for a transfer. All of these things keep detainees at the station for extended periods, he said.
Allen also defended the agency's use of mylar blankets, saying that the agency had "looked at the options" but that they couldn't find a company that could keep up with the laundry.
"We might deal with a couple hundred people a day," Allen said. "What we found is that because of scabies and lice, it was hard to keep blankets clean and hygenic, so the recommendation was for one-use mylar blanket that can be recycled."
During cross-examination, a lawyer for the plaintiffs, Harold J McElhinny, asked Allen to try one of the blankets. Allen, clad in his green dress uniform, unwrapped the silvery sheet and wrapped it around his broad shoulders.
"I'm not a scientists, so I don't know how these work, but if you wrap them around yourself you can keep yourself warm. There's no insulating quality, it's not an insulation barrier so it won't work if you're on the ground, but if you're standing up, it keeps the wind off you," he said.
"What about if you're lying on a cold concrete bench," asked McElhinny.
"Well, it's not different than lying on the ground," Allen replied.
Allen also said that the agency keeps the lights on for security. "We need to be able to see people in hold room, make sure they’re safe, you can see what’s happening," he said.
McElhinny argued to Bury that such practices contributed to sleep deprivation, violating the Eighth Amendment rights of detainees by subjecting them to "cruel and unusual punishment."
"We represent a class of people who sued in 2015, and yet every night this practices continues just four miles from this courtroom," McElhinny said. "We implore you to end this practice as quickly as possible."
McElhinny said that agency had more than a year to respond to their claims and find an appropriate solution, and now was the time to "hold their feet to the fire."
A lawyer for the government, Sarah Fabien, responded that Bury should take his time because the issue "needed to be explored" and that an injunction could be prohibitive. As Fabien claimed that there was no evidence of harm because of detainee issues, Bury interrupted her.
"I have a hard time hearing that violating a person's civil rights in not harmful. While I'm in my judicial chambers, and someone searches my home, doesn't that harm me?" Bury asked.
Fabien responded saying that the question of whether the lack of "optimum sleep" creates a long-term harm "needs to be explored" before Bury orders the agency to comply with "invasive and serious changes."
"The court should not issue changes that impede the agency of the ability to make changes later," she said.
McElhinny shot back that "there's no government purposes that justifies cruel and unusual punishment."
Bury began issuing his order by complimenting Allen, saying that he was "the right man for this job. I think he can get it done."
However, "the complexity of government operations cannot trump civil rights," Bury said, call sleep a "basic human need."
Bury said he would speak to attorneys in the case in the next few days on the phone to outline his specific orders as the case goes to trial, however, he said he would likely offer some kind of relief to current detainees because "something needs to be done."