Original article appeared in the TucsonSentinel.com
Written by Paul Ingram
A federal judge in Tucson unsealed hundreds of pages of documents and photos this week as part of a class-action lawsuit over the treatment of detainees held by Border Patrol agents in the Tucson Sector.
In a 11-page decision, U.S. District Court Judge David C. Bury agreed Monday with immigration advocates, who argued that the documents and photographs should be released as part of the lawsuit.
Three people who were held by Tucson Sector Border Patrol are leading a lawsuit accusing the agency of violating the constitutional rights of detainees by regularly holding them for more than 24 hours in temporary facilities. This breaks the agency’s own policies, and advocates say subjects immigrants to freezing, overcrowded cells without access to food, water, medical care and legal counsel.
The American Immigration Council, along with the ACLU, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and a California law firm, argued that the court should unseal the documents despite arguments from government lawyers that the documents should remain under a protective order.
Until recently, Bury wrote, the standard surrounding the release of documents in such a case were “a debatable question” however, a 9th Circuit Court of Appeals case in January pushed the argument in the advocates’ favor.
“There is a common law right of access to judicial documents,” wrote Bury, which requires federal lawyers to present compelling reasons to overcome what the 9th Circuit called a “strong presumption” that favored access to public records.
The photos provide a rarely seen view of Border Patrol’s holding facilities along the Southwest, showing the holding area that have become so notorious that cells are regularly called hieleras, or “iceboxes,” by both agents and detainees.
The photos show sparse cells, where garbage and paper tissues accumulate in the corner, and the stainless steel toilets are streaked with rust.
The documents also show 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.
The lawsuit began when the American Immigration Council reviewed the statements of detainees and information from the agency obtained through Freedom of Information Act requests and found that in the first six months of 2013 more than 80 percent of the people in Border Patrol custody in the Tucson Sector were held more than 24 hours.
This contradicts the agency’s own policies, including a 2008 memo which said that a detainee should not be held for more 12 hours and should be moved “promptly.”
However, in 2013 more than 58,000 people, including children and pregnant mothers were held two to three days, the AIC said. Many were forced to sleep on hard benches or concrete floors in concrete cells.
This violates the Fifth Amendment rights of those detained and also violates the Administrative Procedure Act, which guides how federal agencies may set up their own guidelines, the AIC said in the lawsuit.
The suit asks a federal judge to intervene and require the agency to follow new guidelines enforced by a court order.
Following a series of memos in September, Judge Bury sharply criticized the Border Patrol for failing to retain surveillance video from Southern Arizona detention facilities.
Bury warned government attorneys that there could be “an adverse presumption” in favor of the plaintiffs because the videos were destroyed, calling the loss of the video recordings “at best, negligent and was certainly willful.”
The agency said that the videos were lost because the agency did not have the capacity to hold the digital video files and thus, surveillance video showing the three people involved in the lawsuit was not available.
DHS and Customs and Border Protection have not responded to requests for comment regarding the decision, however, previously CBP has said that it does not comment on pending litigation.
However, in 2015, the agency released a short statement, saying that U.S. Customs and Border Protection takes the “safety and welfare of individuals in its custody seriously.”
“This is consistently addressed in training and reinforced throughout an agent’s career. On a daily basis, agents make every effort to ensure that those in our custody are given food, water, and medical attention as needed. CBP investigates all allegations of misconduct, and is committed to making continued progress in detainee treatment and the emphasis of policies that protect human life and treat individuals with dignity and respect,” said the statement.
The agency also said that the facilities are designed to be “short term in nature” and “provide for the security, safety and well-being of those in our custody and are maintained in accordance with applicable laws and policies.”
Over the past seven years, nearly a dozen humanitarian and immigration rights groups have produced reports highlighting severe problems in the agency’s handling of immigrants at temporary holding facilities throughout the southwest border.
In October 2014, the group Guatemala Acupuncture and Medical Aid Project, a public health organization based in Tucson, produced a 91-page report contending widespread mistreatment of Central American and Mexican immigrant families by Border Patrol agents.
This report echoed claims produced by the ACLU and five other immigrant rights groups in a a formal complaint against CBP in June 2014, which relied on interviews with 113 unaccompanied minors, who claimed that the agency routinely denied food and water, refused medical care, and in some cases, subjected the children to stress positions and physical, mental and sexual abuse.
In response, the Office of the Inspector General site issued two memos based on visits to 126 holding facilities and said that with only a few exceptions, the Border Patrol was largely complaint with “law, regulations, and policies” affecting immigrant children.
However, the inspectors only visited one Arizona facilities, the Nogales Placement Center, where hundreds of immigrant children were processed before sent on to officials Health and Human Services.
OIG did find that temperatures were “inconsistent” in holding facilities, but ultimately concluded that the vast majority were “compliant.”