By Brad Poole
TUCSON, Ariz. (CN) – Although the Tucson Sector of the U.S. Border Patrol does the best it can with what it has, that might not be enough to avoid a ruling that conditions in the agency’s temporary holding cells violate the Constitution, a federal judge warned the government during closing arguments.
The lawsuit, filed in 2015 then later allowed by U.S. District Judge David Bury to become a class action, claims cold, overcrowded conditions in the cells, where sleep is difficult without beds and with lights on 24 hours a day, are inhumane. The Border Patrol housed more than 63,000 people in the temporary cells last year, more than 12,000 of them longer than 72 hours.
Bury praised the Border Patrol for doing a “great job” with the resources they have, but told the government Wednesday that he sees little progress toward improving conditions since the lawsuit was filed.
“There’s not going to be anything done unless a court gets involved, and I hate that,” Bury said. “I see no progress on (detainees) getting what they need to protect their constitutional rights.”
Although the Border Patrol sometimes holds detainees in the Tucson Sector’s nine stations longer than 72 hours, by which time policy says they should normally be transferred or released, it is often because other agencies don’t have room for them either, said defense attorney Sarah Fabian, who gave the defense closing.
Fabian didn’t give a hard answer when Bury asked what the agency has done to address the 12,000 people held longer than 72 hours last year – the outside limit of detention that is addressed in Border Patrol policy – without beds.
“It may be bearable and explainable that first night, but it’s not humane on the second night, or on the third or fourth,” said plaintiffs’ attorney James Lunden, who gave the plaintiffs’ closing argument.
Conditions are not improving, Lunden said.
“It’s not temporary. It has not gotten better. It has gotten worse,” he told Bury.
On the issue of overcrowding, Fabian showed pictures of one cell – the night before an inspection – to plaintiff’s prison conditions expert Eldon Vail, a retired longtime corrections administrator in Washington state.
Although the 10 or so people in the cell was slightly more than the agency’s “mat capacity,” Fabian argued in her closing that it was part of the Border Patrol’s mission.
“We have to consider that that is of limited duration during completion of that legitimate mission,” which is to process detainees and transfer them to other agencies, she said.
But those photos only show what conditions were that night – before a planned inspection, Vail said.
Fabian argued that although government records show how long people were in custody, they do not show how long they were in cells. Some detainees spend hours going to the hospital or in custody even before they get to a Border Patrol station, she said.
The government argued during the trial they often keep detainees longer than they have to mainly because other agencies – Immigration and Customs Enforcement for adults and families, Health and Human Services for unaccompanied minors, or the Marshal’s Service for criminal prosecutions – can’t take them.
Bury seemed sympathetic.
“I don’t think the Border Patrol is holding people longer than 72 hours because they want to. They don’t have a choice, correct?” he asked Fabian Wednesday.
“Correct,” she said.
The lawsuit also claims medical screenings – usually provided by emergency medical technicians and not doctors or nurses are inadequate or non-existent.
Fabian argued in her closing that the plaintiffs hadn’t even shown any evidence that rights had been violated where medical screenings are concerned. All detainees are being evaluated, and a physician’s assistant and two EMTs are on duty to treat people as needed, she said.
“Unless the court determines that the system that is in use now constitutes a constitutional violation, then the court has no power to issue an injunction,” she said.
Bury agreed, telling her it isn’t his job to simply make things better.
Among 63,000 people housed in the Tucson Sector in 2019, 53% were single adults and 47% unaccompanied children or members of families, according to Border Patrol testimony. In 2016 and 2017, 85% were single adults.
That changing demographic is part of the reason for delays in transferring detainees, Fabian said, because fewer detainees are eligible for release.
Beds were a key issue in the trial. American Correctional Association standards say detainees should get a bed with sheets and a pillow if they are in custody longer than 12 hours. Tucson Sector Border Patrol holding cells do not have beds. Detainees instead get durable, plastic-covered foam mats for sleeping.
In a pretrial preliminary injunction, Bury ordered the Border Patrol to give every detainee a sleeping mat after 12 hours, which they are getting, according to Border Patrol witnesses.
Lunden said he agreed with Bury that the Border Patrol is doing everything it can to keep conditions within widely accepted prison standards.
“We have no criticism of the people who staff these facilities,” Lunden said.
The judge’s sole task, he argued, is to decide if the agency is violating the Constitution and to order compliance, he said.
“If they can’t, then that’s a consideration for another time,” Lunden said.
Bury plans to rule on the case within a couple weeks.
The class is represented by attorneys from the California law firm Morrison & Foerster, the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, and the Lawyers’ Committee for Civil Rights Under Law.
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