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POLICE/PRISON NATIONAL

Arizona Judge Rules Against CBP, ‘Unconstitutional’ Conditions 

U.S. Border Patrol Chief Mark Morgan testifies before the Senate Committee on Homeland Security & Governmental Affairs in a hearing entitled “Initial Observations of the New Leadership at the U.S. Border Patrol” in the Dirksen Senate Building in Washington, D.C., November 30, 2016. U.S. Customs and Border Protection Photo by Glenn Fawcett
U.S. Border Patrol Chief Mark Morgan testifies before the Senate Committee on Homeland Security & Governmental Affairs in a hearing entitled “Initial Observations of the New Leadership at the U.S. Border Patrol” in the Dirksen Senate Building in Washington, D.C., November 30, 2016. U.S. Customs and Border Protection (Photo: Glenn Fawcett)

“The Court finds that the conditions of detention in CBP holding cells, especially those that preclude sleep over several nights, are presumptively punitive and violate the Constitution.”

An Arizona-based US judge ruled against Customs and Border Protection in a landmark ruling Wednesday. Settling a 2015 case, US District Judge David C. Bury ruled CBP’s Tucson holding facilities are unconstitutional. The decision could be used as a precedent for other cases that have arisen due to the increased attention the US–Mexico border has received under the Trump administration.

Unconstitutional Conditions

“The Court finds that the conditions of detention in CBP holding cells, especially those that preclude sleep over several nights, are presumptively punitive and violate the Constitution,” Bury said, according to Newsweek.

In particular, Bury cited the problem of overcrowded cells, which has found detained immigrants forced to sleep next to toilets. The judge found such an idea, and the thought of detainees using the toilet next to sleeping persons, offensive to “the notions of common decency.” Not only is it unsanitary, but it is degrading.

Furthermore, Bury called the conditions worse than prisons. At least in prison, detainees receive medical attention, bedding materials, clothing, toiletries, and healthy food, the judge wrote.

“Likewise, the conditions of confinement for civil immigration detainees similarly improve once they are transferred from CBP holding cells to detention centers operated by the United States Marshals, ICE, ERO, Health and Human Services (HHS), and other immigration detention agencies and organization,” Bury said.

Limiting Time In Custody

Consequently, Bury ordered CBP to limit holding undocumented immigrants and asylum seekers to 48 hours and banned the use of bathrooms for sleeping. CBP guidelines specify detainees should be held for a maximum of 72 hours, Catherine E. Shoichet reported for CNN.

However, in court, Bury found this time limit is often breached. 

“In 2019, the average time spent in CBP custody in the Tucson Sector was 53.92 hours, with 34% of 63,490 detainees being held longer than 48 hours, 9,798 were held up to 72 hours and 12,030 individuals were held longer than 72 hours,” Bury stated in his ruling.

Responding to the ruling, CBP said, “As an agency, we encounter a diverse population of people from all over the world, and we are committed to the health, safety, and humane care of every individual in our custody.”

Pssst, while you're here...

The facts, however, told a different story in district court and although CBP certainly encounters people from all nations, conditions along the Mexican border are indisputably worse than a facility in New York, for example. Although the backlash against CBP and Immigration and Customs Enforcement began after President Donald Trump assumed office, former President Barack Obama was a hardliner on illegal immigration, too. 

Obama-Era Doctrine

Deportation levels under Trump have still not reached Obama-era numbers. In 2012, ICE reported 409,849 deportations, compared with 256,085 in 2018, according to The Wall Street Journal. 

However, Obama was not elected with the Mexican border as a pillar of his campaign. Unlike Trump, he did not pledge to construct a wall and siphon funding from the military to build it when Congress would not fund it. Obama did not call Mexicans “rapists,” before appending that “some, I assume, are good people.”

Therefore, even though the lawsuit against CBP was filed in 2015, the detail will likely be a moot point in the partisan political climate surrounding the border wall construction. Truly, Trump inherited an already-aggressive CBP and ICE from Obama. Instead of using it as an opportunity to approach the problem differently, Trump’s anti-immigrant rhetoric vindicated law enforcement agencies. 

The issue of illegal immigration is unlikely to go away in the near future nor will Wednesday’s ruling be automatically applied to CBP facilities across America—it will only affect operations in Arizona. However, it is a critical win for groups representing immigrants as it gives them something to build on for ongoing and future cases.

“We’re ecstatic that a court has finally recognized and made CBP change the way that it’s going to do its work and is requiring them to at least provide some basic human decency in the method that it treats people,” said Alvaro Huerta, staff attorney with the National Immigration Law Center.

The fact that Bury declared CBP facilities violated the Constitution is noteworthy, he said. Establishing a Constitutional minimum for treatment of detainees could set a bar for other courts to measure future cases against.

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Daniel Davis

Daniel Davis is Managing Editor for The Osage County Herald-Chronicle in Kansas and also covers International news for Inside Over, a Milan-based global affairs publication. He graduated in 2015 with a bachelor’s degree in political science. Outside of writing, he enjoys photography and one day hopes to return to video production. Learn more about him at his website danieldavis.la.

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