Judge hints he may rule for migrants in Border Patrol suit

TUCSON, Ariz. —
A judge indicated Wednesday he may side with migrants in a lawsuit that alleges extreme overcrowding and inhumane conditions at some of the Border Patrol's facilities in Arizona.

U.S. District Court Judge David C. Bury criticized the lack of measures taken by the Border Patrol to address persistent overcrowding and lengthy times in custody. He didn't say exactly when he would rule but indicated it would be the end of next week at the earliest.

“Nobody has done anything. Is that why a court has to jump in?” Bury asked. “It just seems like the lack of a response to these numbers just calls for a court order.”

Attorneys representing migrants who have been held in the agency's facilities in Tucson want Bury to issue a broad order forcing the Border Patrol to improve several aspects of detention.

Primarily, they want migrants to have access to beds after a certain amount of time in custody, but also want the judge to require the agency to provide more layers of clothing, access to showers, food that's assessed by a nutritionist and the ability to dim lights in sleeping facilities.

Currently, migrants are placed in holding cells with no beds but are given thin sleeping mats. They have derisively referred to the conditions as living in ice boxes.

The government says the attorneys for the migrants have not proven any constitutional violations and that the agency has taken steps to reduce time in custody. It says many things are out of the agency's control, such as whether other agencies involved in taking migrants have capacity.

Government attorney Sarah Fabian called the requests in the lawsuit a wish list, adding that there hasn't been any funding to build facilities for beds.

“The power of the court to loosen the purse strings of Congress is limited,” Fabian said.

The amount of time migrants spend in custody has grown over the years, resulting in extreme overcrowding and allegations of mistreatment in facilities that were built for short-term stays. About 12,000 people were in custody for more than 72 hours in the Tucson Sector last year, or about 20%. The average time in custody was nearly 54 hours.

The lawsuit was filed in June 2015, predating a surge of immigrant families who came to the border last year.

“This is not temporary. They have not cleaned up their act,” attorney Jack Londen said. “There's no reason to think that this problem is going to solve itself.”

The judge appeared to agree on Wednesday.

‘”I don't want to get involved in this but it seems like Mr. Londen may be right. There's no action unless a court orders it,” Bury said.

In 2016, he ordered the Tucson Sector to provide clean mats and thin blankets to migrants held longer than 12 hours and to allow them to clean themselves. The agency also must turn over surveillance video and statistics like time in custody, he said.

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In 2017, Bury said the agency violated court orders by failing to preserve surveillance footage that it was required to turn over. Bury partially granted a motion to hold the Tucson Sector in civil contempt over video files that were irreparably damaged, agreeing the agency knew about the bad files but didn’t notify plaintiffs.