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Long-running lawsuit in Tucson shows perennial problems at border detention centers

As officials with the Department of Homeland Security face increasing scrutiny over the detention of migrants after two children died in federal custody in New Mexico this month, a long-running class-action lawsuit in Tucson accuses the agency of punishing migrants by holding them in freezing, dirty cells where tainted water, poor food, and a lack of health care remains a perennial problem.

Over the past decade, nearly a dozen humanitarian and immigration rights groups have produced their own outside reports highlighting severe problems in the agency's handling of immigrants at temporary holding facilities throughout the southwest border region.

This includes a 2015 class-action lawsuit, filed by the American Civil Liberties Union and other civil rights groups, which alleges that U.S. Customs and Border Protection, including the Tucson Sector of the Border Patrol, has routinely denied food and water, refused medical care, and in some cases, subjected adults and children to stress positions and physical, mental and sexual abuse.

In one report, children reported being held in cells when the lights were always on, sleeping on mylar survival blankets, and reported they were often freezing, or subjected to extreme heat in their cells. 

The issue of cold cells has become so notorious that agents and immigrants alike call them "hieleras" — "iceboxes" in Spanish.

In recent weeks, the deaths of two children in New Mexico have highlighted the long-term issue. On Dec. 8, seven-year-old Jakelin Amei Rosmery Caal Maquin died in an El Paso hospital 26 hours after she was apprehended, along with her father and 161 other people, by Border Patrol agents near Antelope Wells, N.M., a lonely stretch of terrain in the state's boot-heel.

Then, on Christmas Eve, eight-year-old Felipe Gomez Alonzo died of complications from the flu at a hospital in Alamagordo, N.M.

During that same period, on Dec. 12, a 5-month-old girl was hospitalized with pneumonia in California, after she spent five days in a Border Patrol holding cell, Buzzfeed reported.

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At shelters, volunteers serving as doctors and nurses, have said that many people arrive with health conditions that are common to detainees, including not only dehydration and hunger, but also sore throats and coughs. While Border Patrol agents offer crackers and frozen burritos, many people have complained that the food makes them "sick" or that it's inedible. 

Moreover, because Border Patrol stations are 24-hour operations, many detainees say that they cannot sleep because the overhead lights are always on, and the detention areas are often cold and crowded. 

Some detainees have also told TucsonSentinel.com that water has a "bad smell" or that it makes their throat hurt to drink it. 

All of this contributes to a rising potential for disease, said one doctor, who added that the flu, when combined with dehydration, can be dangerous for young children. A nurse said that she often sees wounded that need cleaning.

A Border Patrol agent, who was not authorized to speak on the record, said that agents try to care for people, but the stations are often too small for the number of people, and that the lights are kept on for safety. He also added that agents can give out water bottles, and some agents may offer their own lunch or dinner, but that's just not enough. 

DHS response

During an interview with CBS This Morning, CBP Commissioner Kevin McAleenan said that the agency needs help from Congress for a "different approach." 

"We need to budget for medical care and mental health care for children in our facilities and I'm committed to improving our conditions, even as we work on the broader problems—border security, and of course solving the issues in our legal framework that are inviting these families and children to make this dangerous journey," McAleenan said. 

"It's been more than a decade that we've had a child pass away anywhere in a CBP process so this is just devastating for us," he said. "We've got over 1,500 emergency medical technicians that have been co-trained as law enforcement officers. They work every day to protect people that come into our custody." 

McAleenan was referring to agents who can volunteer to receive EMT training, or can be certified as paramedics. In the Tucson Sector, there are around 3,800 agents, including 275 agents with EMT training, and 22 licensed paramedics. The agency also has a special operations team known as the Border Search Trauma and Rescue or BORSTAR, who regularly conduct rescues in remote areas with the help of Arizona Department of Public Safety officers and county sheriff's deputies. 

McAleenan's boss, Homeland Security Secretary Kirstjen Nielsen blamed everyone but the agency, once again calling it a "crisis." 

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"Our system has been pushed to a breaking point by those who seek open borders. Smugglers, traffickers, and their own parents put these minors at risk by embarking on the dangerous and arduous journey north. This crisis is exacerbated by the increase in persons who are entering our custody suffering from severe respiratory illnesses or exhibit some other illness upon apprehension.  Given the remote locations of their illegal crossing and the lack of resources, it is even more difficult for our personnel to be first responders," she said. 

Nielsen said that U.S. Coast Guard Medical Corps will "provide an assessment of CBP’s medical programs and make appropriate recommendations for improvements," and that she has asked the Defense Department to "provide additional medical professionals." 

She also said that all children in Border Patrol custody have been giving a  thorough medical screening," and that "moving forward, all children will receive a more thorough hands on assessment at the earliest possible time post apprehension – whether or not the accompanying adult has asked for one." 

However, Nielsen's statements sidestep the long-term nature of lawsuits filed against the agency, including the ACLU's class action against the Tucson Sector, and decades-old lawsuit in California that despite a consent decree has renewed relevance as the government has strained against requirements that children be held in the least restriction detention possible and only for short periods of time. 

In May, Nielsen said that the Flores Settlement was one of the many "legal loopholes" that people were exploiting to come the U.S. and she called on Congress to change those laws.

In the last two months, 68,510 people traveling as family units and 13,981 unaccompanied children have sought asylum in the United States. "This is a dramatic change from historical trends and has only become starker in December." 

Nielsen blamed the issue on "bad judicial rulings." 

Federal judges have repeatedly stymied the administration's attempts to rewrite asylum law, ban people from seeking asylum if they enter between established U.S. border crossings — a legal act under current U.S. law — and restrict how the conditions that people can claim as reasons to receive asylum. 

In a filing over the summer, the Center for Human Rights and Constitutional Law, with help from a California-based law firm said that the government had "mounted a full-scale assault on the 1997 Flores settlement," telling U.S. District Court Judge Dolly Gee that Border Patrol continues to restrict access to clean water, and puts detainees in cold, unsanitary cells. 

In nearly 218 declarations filed in the case, detainees complained about both BP facilities and those maintained by U.S. Immigration and Customs Enforcement, including nearly 60 where people specifically said they were sick and did not receive adequate medical care. 

Court cases in Tucson show history 

The American Civil Liberties Union and five other groups said that same thing in June 2014. Based on interviews with 113 unaccompanied children, the ACLU said agents routinely denied food and water, refused medical care, and in some cases, subjected the children to stress positions and physical, mental and sexual abuse.

Children reported being held in cells when the lights were always on, sleeping on plastic sheets, and reported they were often freezing or subjected to extreme heat in their cells. The issue of cold cells has become so notorious that officers and prisoners call them "hieleras" — "iceboxes" in Spanish.

One seven-year-old boy, developmentally disabled and unable to speak, or walk was held for five days in Border Patrol custody, and was so poorly cared for that when he was turned over to the custody of Health and Human Services officials, he was immediately taken to a children's hospital where he had two emergency surgeries and stayed for more than 42 days, said Joseph Anderson, director of litigation for Americans for Immigrant Justice.

Other unaccompanied minors reported being denied food or water, or that the only available water was from the toilet tank in her cell. And, some children reported being fed frozen or spoiled food, and they were ignored when they became ill.

A few months later, the group Guatemala Acupuncture and Medical Aid Project, a public health organization based in Tucson, published their own 91-page report, which complained about widespread mistreatment of Central American and Mexican immigrant families by Border Patrol agents.

In 2015, the ACLU and three other civil rights organizations, with support from a California law firm, filed a class-action lawsuit in Tucson, contending that people detained by Tucson Sector Border Patrol agents were regularly held more than 24 hours in temporary facilities, breaking the agency's own policies and subjecting immigrants to freezing, overcrowded cells without access to food, water, medical care and legal council.

Informed by the statements of detainees, and information from the agency obtained through the Freedom of Information Act by the American Immigration Council, the lawsuit said that in the first six months of 2013 more than 58,000 people, including children and pregnant mothers were held two to three days. Many were forced to sleep on hard benches or concrete floors in concrete cells, they said.

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These conditions violate the Fifth Amendment rights of those detained, and the Administrative Procedure Act, which directs how federal agencies may set up their own guidelines, the groups said.

The ACLU followed up with a similar report in May that relied on thousands of pages of documents from the Office for Civil Rights and Civil Liberties, a government watchdog under DHS, showing what the ACLU called "numerous cases of shocking violence and abuse against migrant children." 

In every case, CBP and DHS officials have disputed these findings, arguing that the agency has a "zero tolerance policy" against abuses, and that a set of guidelines created in 2015, known as "TEDS," for Transport, Escort, Detention and Search, are strictly followed. 

In May 2018, a CBP spokesman even when so far as to say that an ACLU report includes "false accusations."

"The 'report' equates allegations with fact, (and) flatly ignores a number of improvements made by CBP," said spokesman Dan Hetlage.

Nearly, a year later, U.S. District Court Judge David C. 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.

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."

The government appealed, but in late 2017, the Ninth Circuit Court of Appeals called the government's arguments "not persuasive."

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Moving forward 

"Our litigation team believes that the care of detainees is something basic that CBP should not be struggling with," Billy Peard, a lawyer with the ACLU of Arizona, said on Friday. "This is a basic function of any jailer to provide bedding, food and water under the U.S. Constitution." 

Border Patrol's arguments are "not principled" Peard said, but rather rely on the idea that Border Patrol's unique nature as an agency devoted to national security, and has a "free pass" when it comes to the treatment of detainees. Peard also said that the Nielsen's announcement to use the Coast Guard might be "good as a stop-gap," but that such a move was "no substitute for having a medical professional on staff or available under contract." 

Peard said that advocates hope to see some rulings in February, and possibly a bench trial in fall 2019, nearly four years after the lawsuit began. This may include a permanent injunction, or a consent decree that guides how the agency treats immigrants in detention. "Even current standards are not adequate, the standards need to be much higher," Peard said.

Government seeks shutdown delay 

In a document filed Friday, lawyers for the plaintiffs filed a motion opposing the government's request to stay the case because of the government shut down.

In a sharp critique of the government's motion, Colette Reiner Mayer, a lawyer with Morrison & Forrester, LLP wrote that not only had the government filed a motion to delay the injunction in August, months before the government shut-down, but that up to 91 percent of CBP employees and 49 percent of the staff for the Justice Department's Civil Division staff are exempt during a "lapse in appropriations."

"Defendants have had ample time to collect whatever evidence they intend to offer in response, and should not be allowed to delay the resolution of Plaintiffs’ Motion any longer," Mayer wrote.

She also noted that under federal law, there are contingency plans that permit agencies to continue operations when necessary.

"This lawsuit challenges the inhumane and punitive conditions of detention in CBP facilities within the Tucson Sector, which necessarily implicates the safety and well-being of class members detained at these facilities," Mayer wrote. "Addressing these safety concerns are even more salient in light of recent reports regarding the deaths of two children in CBP custody and prolonged detentions in overcrowded Tucson Sector facilities. These serious safety issues cannot be further delayed."

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Ross Franklin/AP Pool photo

Two young girls watch a soccer match on a television from their holding area at the CBP Nogales Placement Center in 2014. Other detainees sleep under foil mylar blankets.