A federal judge in Tucson has concluded that Customs and Border Protection is detaining migrants in a way that violates their rights.
In a 40-page ruling, Judge David Bury concluded that those being held for more than 48 hours at Border Patrol facilities in the Tucson Sector face conditions that are “substantially worse” than not just other places where those suspected of immigration laws are being held but even that of jails and prisons.
“The court finds that conditions of detention in CBP holding cells, especially those that preclude sleep over several nights, are presumptively punitive and violate the Constitution,” he wrote.
Bury acknowledged there can be exceptions from constitutional violations for “exigent circumstances.” That, he said, could include things like a civil disturbance that might delay the time for processing.
“But this is a narrow exception and overcrowding or regular classification considerations do not constitute exigent circumstances that would justify floor-sleeping,” the judge wrote. “The periodic surges occurring along the border is a chronic condition and not an exigent exception to justify unconstitutional conditions of confinement.”
The bottom line is that Bury issued an order telling the CBP, which oversees the Border Patrol, that those whose processing has been completed cannot be held more than 48 hours unless it provides “conditions of confinement that meet basic human needs for sleeping in a bed.” And his order covers not just blankets but “food that meets acceptable dietary standards, potable water, and medical assessments performed by a medical professional.”
“We think this is fantastic,” said attorney Mary Kenney of the American Immigration Council, one of the groups involved in the lawsuit.
She acknowledged there are still some questions about the conditions of confinement for the first 48 hours, conditions that are not covered in Bury’s order. But what the ruling covers, Kenney said, is crucial.
“This is a very significant ruling for the court to be saying this is unconstitutional to keep an individual longer than that time without providing a bed, without providing adequate food and water, without providing a medical assessment or a medical professional, or that shower,” she said.
The ruling stems from a 2015 lawsuit in which immigrant rights groups alleged “inhumane and punitive conditions” at Arizona facilities.
That lawsuit was filed on behalf of three individuals who attorneys said were denied food, adequate clothing and sleep. But Kenney charged at the time that what they experienced is not unique.
“They have been packed into overcrowded and filthy holding cells with the lights glaring day and night; stripped of outer layers of clothing and forced to suffer in brutally cold temperatures; deprived of beds, bedding and sleep; denied adequate food, water, medicine and medical care,” the lawsuit charged. It also said there was a lack of “basic sanitation and hygiene items,” like soap, toilet paper and sanitary napkins.
Bury, in his ruling, found much of that to be verified.
“Surveillance video reveals overcrowding so severe that, at time, detainees had no place to sit, much less lie down on mats,” he wrote.
“Detainees (including children) sleep in toilet stalls for lack of space,” Bury continued. “Detainees (including mothers holding children) are forced to climb over benches to reach toilets and drinking water; and detainees are forced to sleep sitting up.”
All that, he said, was problematic.
“Floor sleeping in toilet areas is humiliating to both the detainee sleeping there and any detainee needing to use the toilet,” the judge wrote. “It also poses a risk to a detainee of infection or contamination with fecal matter and other bodily fluids.”
A lot of this overcrowding, the judge suggested, is due to federal agents holding people longer than is necessary to process.
That processing, Bury explained, involves determining the individual’s identity and immigration and criminal history. That then determined whether the person should be repatriated to the country of origin, transferred to the custody of another agency, referred for prosecution, “or, in rare circumstances, released on his or her own recognizance.”
But Bury found that during the most recent fiscal year the average time spent by an individual in custody in the Border Patrol’s Tucson Sector was nearly 54 hours, including more than 12,000 people held for more than 72 hours. And, he said, time in custody has increased over previous years.
“There is no basis on which CBP can accurately predict on any given day whether tens or thousands of individuals will show up at a specific location or at a specific time along the border,” Bury said.
And he said the number of individuals in any given holding room is never intended to create discomfort or challenges but rather determined by “operational concerns.”
But he said there is no “legitimate custodial governmental interest” in overcrowding due to people being held after processing is complete. And he said the reasonable time for completing that is 48 hours.
The judge also brushed aside any potential claim that the agency can justify the conditions due to lack of resources. He pointed out that his order is prospective, governing what happens from now on.
“And the government may be compelled to expand the pool of resources to remedy a constitutional violation,” Bury wrote.
Attorneys with the U.S. Department of Justice who handled the case could not immediately be reached for comment.
