A still from a video camera inside one of the Tucson Sector’s Border Patrol stations showing a group of men sleeping on the floor beneath mylar survival blankets. Photo from court records.
Two women who were in Border Patrol custody in the Tucson Sector nearly four years apart described similar circumstances of freezing cells in squalid conditions, as a trial over the treatment of migrants in Southern Arizona continued for a second day.
Identified only as “Witness A” and “Witness B,” the women told U.S. District Judge David S. Bury, who is overseeing the bench trial, that they were placed into freezing cells that were dirty, served spoiled food, and their requests for routine medical care were either ignored or put on hold.
The two women capped off a day of testimony, in which two experts, one the former head of the prison system in Washington state, and the other a medical doctor, described problems with the Border Patrol’s treatment of men, women and children in the sector’s eight stations. The trial is the culmination of a long-running lawsuit launched in 2015 with claims that the agency violates migrants’ constitutional rights by regularly holding them for more than 24 hours in temporary facilities leading to conditions that advocates called “inhumane, punitive, and unconstitutional.”
The lawsuit has provided a rarely seen view of Border Patrol’s holding facilities in Arizona, showing the concrete detention areas that have become so notorious that cells are regularly called hieleras, or “iceboxes,” by both agents and detainees.
After years of declining apprehensions, last fiscal year nearly 852,000 people — largely families with children, or children traveling alone — were taken into custody by Border Patrol. Many of these families were from three Central American countries, and most sought out BP agents and requested asylum.
In the Tucson Sector, around 63,500 people were taken into custody by U.S. Border Patrol, and about one-third were either families, or children who arrived in the U.S. without parents or guardians.
The trial follows years of litigation over the treatment of detainees, including women and children, at the agency’s Southern Arizona facilities, which began in 2015 with three people who sued the federal government, with help from the California law firm Morrison & Foerster LLP, and supported by the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.
In 2016, Bury ordered the agency to abide by a preliminary injunction, but the testimony of the second woman, who was held in April 2019, may show that the agency continues to falter when it comes to the treatment of migrants, violating Bury’s orders.
“Witness A” said that she was from El Salvador, and that she arrived in the U.S. in early June 2015 near Sasabe, Ariz., with a group of people. As they rested, Border Patrol agents, some with dogs, while others were on motorcycles surrounded the group and arrested them. Along with her sister “Witness A,” or as the agency’s defense team referred to her “Ms. A,” was taken to the Border Patrol station near Casa Grande and held for two days.
As she described it, she was treated “like an animal” by agents, who laughed at her request for food—telling her “sure, we’ll take you to a good restaurant and you will have really fresh water,” she said—and ignored her complaints that wounds from thorns were becoming red and infected. As she described her, she was bruised and dehydrated, and she was having trouble urinating because she had “problems with her kidneys,” but she was left in a cell with 20 other women where she shivered and struggled to keep warm beneath a mylar blanket with her sister in a room that smelled like “pee and poop,” she said through a translator.
She also said that Border Patrol agents gave her a burrito, but she refused to eat it because it was far past its expiration date, and was “green and smelled bad.” Instead, she survived on a cookie and a juice box, she testified. She also said that she was sleep-deprived, and that she became paranoid.
“I felt like I was not treated like a person, but I was treated practically like an animal. I was afraid that I would freeze of death, I would die of hunger, or I would die of thirst.” And, she said she worried about her sister, and felt bad because “I couldn’t protect her.”
Defense lawyers repeatedly rejected her testimony, arguing that the conditions she described were not relevant because those issues had changed over time, but Bury said he would consider her testimony, but he might not put much weight to it since it predates the injunction he placed on the agency in November 2016.
The second woman, “Witness B” said that she crossed into the U.S. on April 30, 2019, with her boyfriend and her brother. About seven weeks pregnant at the time, Witness B said that she had a “high-risk pregnancy” and that she was vomiting when she was brought to the Border Patrol detention facility in Tucson, known as the Tucson Coordination Center, the sector’s headquarters. She said that she repeatedly asked for a doctor, but was told to wait, including at one point when she met the doctor, but he told her that he had to check on “all the children first,” and didn’t get back to her for hours, she testified.
“I felt sad,” she said through a translator. “I was worried because I wanted to see a doctor, I was worried about my baby’s health.” She said she continued vomiting, and at one point, an agent tried to reassure her, telling her that his wife was also pregnant, and that it was normal, she said.
She said she was brought to a cell with many other women, and was given a pad to sleep on. A woman in the cell gave her a mylar blanket.
In video showed to the court, she walks into the room and attempts to find a place to sleep, finding that the only open spot is in front of the toilet stall. In video, she curls in knees up to her chest, and sits still as mylar blankets shuffle and shift in the bright lights of the holding cell. Around 2 a.m., a second video shows her curled up beneath her own mylar blanket, as two other women enter the cell. One women steps over her, and tries to wrangle her sleeping pad into the toilet stall, where she tries to settle in for the night.
She said she was “very cold, and sick” under the blanket, and she struggled to sleep because of the lights, “banging noises” outside, and the laughter of agents on shift.
The next morning, she was transported to a hospital in Tucson, where she was given medication and intravenous fluid. And, the doctor suggested that she be given bananas and rice, but that an agent told the doctor, “that will be hard.”
The women’s testimony adds to the pile of evidence, reports and complaints that have been made against the agency for nearly a decade, and fits into the complaints made in 2015 as part of the lawsuit.
While the lawsuit moved forward, 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.
Bury ordered the agency to provide sleeping mats to detainees, and he ordered them to provide access to showers when available, and in final shot at the agency, he certified the case as a class-action lawsuit, and wrote that the suit would cover “all individuals who are now or in the future will be detained at a CBP facility within the Tucson Sector.”
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.”
Earlier Tuesday, Eldon Vail, the former head of Washington state’s prison system, finished his testimony, telling the court that “the situation” in Border Patrol stations is “much more severe than anything I’ve seen in any jail.” He argued that the use of mylar blankets, a plastic blanket covered in reflective material, was unusual and that the only time he saw the blankets used in a “correctional setting” was when the blankets were used to warm up prisoners fighting wildfires.
He called the use of mylar blankets instead of cloth blankets, mattresses, and pillows “particularly disrespectful to folks in custody.” And, he said that data obtained as part of the lawsuit shows that “more and more people are being subjected to these conditions for longer times.” Four years after the lawsuit began, these problems continue, he said, “in fact they’re getting worse.”
He also argued that the agency was allowing the holding areas, concrete rooms with concrete benches installed, were often overcrowded, so much so that men and women were sleeping in the toilet stalls. “I’ve never seen any situation, under any authority, where people have to wind up sleeping in the toilet,” Vail said.
A lawyer for the Justice Department argued that Border Patrol’s operations were different, and he asked Vail if he understood how the Trafficking Victims Protection Reauthorization Act—a 2008 law that guides the treatment of children in the agency’s custody—as well as the Flores Settlement—the result of a 1997 lawsuit over the treatment of children in immigration custody—might tie agency’s hands.
Vail argued that “processing” is a different function than detention, and that Border Patrol had by design conflated these two missions together. “I don’t think any of that trumps the modern conditions of a detention facility.”
Vail also dismissed an argument that the changing demographics of the people in custody, shifting from mostly Mexican men to families from Central America, might complicate the agency’s mission. “I’m concerned about the conditions of the custody that the person is in,” Vail said.
After Vail finished testifying, he asked Vail to categorize the differences between an arrest, a hold, detention, jail, and imprisonment. “I know you hate to draw a bright-line; I do too, but I find I have to do it a lot.”
Vail said that anytime “you take possession of a body in custody,” the rules apply, and while there’s a difference between holds and detentions, he thought that there was a significant difference between the “first night” and 48 hours. At 48 hours, a person is owed a raised bed and a shower, he argued.
Bury also complained about the handling of some exhibits, which have been labeled “secret” or “confidential.”
“The public has a right to know,” the judge said, questioning why some documents, including the number of possible mats that can be placed in a single hold room in the Tucson Sector’s stations, has been treated as a “closely guarded secret.”
Justice Department lawyers argued that smugglers could use the numbers to intentionally “overwhelm” the sector. Bury raised his brow, but given that it didn’t affect the litigation, and the plaintiffs were willing to protect those numbers, decided to let the matter go.
Border Patrol rejected a request for comment on the lawsuit, saying only that it does not speak on “ongoing litigation.” But, as government attorneys argued in a filing last week, the number of people in “a given hold room is never intended to create discomfort or challenges for those in custody, but rather is determined by operational concerns.”
“Food, water, sanitation, hygiene items, bedding, medical care, etc., are not withheld as a punitive measure, and station temperatures are not set for punitive purposes,” they said.
This story was originally published by TucsonSentinel.com and was republished here with permission.
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