Border Patrol sued over migrant-detention conditions

Original article appeared in AZ Central.

By bob ortega

Human-rights groups are asking the federal courts to order Customs and Border Protection to improve what they describe as the “unconstitutional and unconscionable conditions” under which undocumented immigrants are held for processing at Border Patrol stations and facilities in the Tucson Sector.

A lawsuit, filed Monday in the U.S. District Court for Arizona on behalf of three undocumented immigrants, alleges that across the Tucson Sector, the Border Patrol holds men, women and children in freezing, overcrowded and filthy cells for days at a time, in conditions that violate both the U.S. Constitution and CBP’s own policies.

According to the suit, people are stripped of outer layers of clothing and held in cold, concrete cells known as “hieleras,” or ice-boxes; they are not provided with beds or bedding; they are denied adequate food, water and medical care; they are denied access to showers and to basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins and diapers; and they are often held for days virtually incommunicado.

Agents leave the lights on and repeatedly wake detainees up during the night, the complaint alleges.

“Children as young as 4 years old” have their jackets taken away and are “left crying through the night, sick, exhausted, shivering,” said Nora Preciado, an attorney for the National Immigration Law Center, one of four organizations involved in the suit. Preciado said that more than 75 detainees gave statements to attorneys, saying that when they complained, “agents responded that the harsh conditions were punishment for coming to the U.S.”

The suit does not seek monetary damages, but asks the court to order CBP to address “inadequate, unsafe and unhealthy” detention conditions.

A CBP spokesperson said that the agency doesn’t comment on pending lawsuits. But last year, CBP Commissioner Gil Kerlikowske disputed that cells are unduly cold, while acknowledging that some of the complaints about poor conditions were “spot-on.”

During a surge of unaccompanied children last year, the Department of Homeland Security’s Office of Inspector General made 126 site visits to holding facilities. In two memos, the Inspector General acknowledged that children were being held for more than 72 hours, and that temperatures in the cells were “inconsistent,” but the memos said that “most facilities were compliant” with laws and federal regulations.

However, only one Tucson Sector site, in Nogales, was included in those visits. Attorneys involved in the suit said Wednesday that DHS and CBP persistently have downplayed complaints about holding conditions.

Under CBP’s guidelines, the holding rooms at Border Patrol stations and substations are supposed to be for short-term use while people are processed to be sent either for immediate deportation or to long-term detention centers operated by Immigration and Customs Enforcement.

But public records obtained by the groups filing the suit showed that, in the Tucson Sector, for the first six months of 2013, more than 58,000 people, or 80 percent of those detained, were held by the Border Patrol for longer than 24 hours. More than a third were held for more than 48 hours. And more than 11 percent were held for longer than 72 hours.

“And that is in cells that hold no beds, only concrete benches, toilets, sometimes a sink — that’s all that’s in them,” said Mary Kenney, an attorney for the American Immigration Council.

One unnamed detainee described being held for days in a cell with 50 other women and children.

“There was not enough room for everyone to lie down and some kids had to sleep near the toilet. At times I was able to lie on the floor, but other nights it was so crowded that I had to sleep sitting up or kneeling.”

Although the names of scores of undocumented immigrants are contained in statements they gave accompanying the lawsuit, two of the three plaintiffs are women listed as Jane Does. James Duff Lyall, an attorney for the American Civil Liberties Union, declined to explain why they were not named. The third plaintiff, Norlan Flores, is an undocumented immigrant detained by the Border Patrol in 2007 and again in 2014.

The complaints detailed in the lawsuit echo similar allegations that have been raised by immigrant-rights groups for years, and even investigated by Congress.

“A quick fix would be to follow their own policies, even though those are still constitutionally inadequate,” said Lyall. “The punitive nature of these detention conditions is very much part of policy of deterring immigration through what CBP calls a ‘consequence delivery system,’ which is another way of saying suffering.”

Lyall said that while this lawsuit focuses on the Tucson Sector, where the groups had the best data, similar problems exist at Border Patrol stations and facilities all across the country.

“It shouldn’t take a class-action lawsuit for the government to treat people in a humane manner,” he said.