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Border Patrol must provide mats for detainees to rest, 9th Circuit rules

In this Aug. 11, 2017, photo U.S. Customs and Border Patrol agents pick up immigrants suspected of crossing into the United States illegally along the Rio Grande near Granjeno, Texas. (AP Photo/Eric Gay)

In this Aug. 11, 2017, photo U.S. Customs and Border Patrol agents pick up immigrants suspected of crossing into the United States illegally along the Rio Grande near Granjeno, Texas. (AP Photo/Eric Gay)

A federal appeals court on Friday rejected a bid by Border Patrol to avoid having to provide mats and blankets to migrants they detain in holding cells in Arizona for more than 12 hours.

The 9th Circuit Court of Appeals rejected arguments by the federal agency that having to provide the mats would be a hardship. Among the arguments were that having mats where people can lie down reduces the number of migrants who they can put into each holding cell.

That claim did not impress the court.

“It is not unreasonable to infer that a person who has been detained in a station for over 12 hours (after having been awake for some period of time before his detention) has a right to lie down and rest, even in the middle of the day,” appellate Judge Consuelo Callahan wrote for the three-judge panel.

Callahan said this whole thing would not be an issue during normal processing which should take no more than two and one-half hours.

But it turns out that during a period of three and a half months in 2015 only 3,000 of the approximately 17,000 people detained were processed out of detention within 12 hours.

Detail of exterior of courthouseAbout 8,600 were held at a Border Patrol station up to 23 hours, 6,800 for up to 47 hours, 1,200 for up to 71 hours and 476 for 72 hours or more.

And then there was the finding by District Court Judge David Bury that “the hard concrete floors and benches retain the cold caused by low thermostat temperatures and make it too hard and cold to sleep.” Migrants have referred to the holding facilities as hieleras,” the Spanish word for “ice boxes.”

But while saying detainees are entitled to mats and blankets, the appellate court rejected arguments by their attorneys that they are entitled to beds and mattresses. Callahan said that’s asking too much for what is supposed to be a temporary holding facility.

The appellate judges were equally unpersuaded by the claim that the migrants should have access to showers and that the access to medical care was inadequate because there were not specially trained medical personnel like doctors or nurses.

Consuelo Callahan

Judge Consuelo Callahan

There was no immediate response, either from the groups that filed suit on behalf of the migrants or the Border Patrol.

Friday’s ruling comes a year after Bury ordered Border Patrol to make immediate changes to how it treats people being held after being picked up for being in this country illegally.

The judge said it is a violation of the rights of those being detained — often for days — to not provide them clean bedding, including a mat on which to sleep.

He also ordered the agency to deal with the personal hygiene needs of detainees being held for longer than 12 hours, including the ability to wash and clean themselves. Bury cited testimony of an expert who saw holding rooms with floors, walls, benches, drains, toilets, sinks, stalls and other fixtures, “all of which were badly soiled.”

And Bury said there was evidence Border Patrol was not even complying with standards which require one toilet for every 12 male prisoners and one for every eight female detainees. One large holding room at the Nogales station had a capacity of up to 88 — but with just one working toilet and one that didn’t flush at all.

In deciding to issue the injunction, Bury said that some of the conditions cited by the American Civil Liberties Union and other groups representing detainees amounted to a deprivation of their constitutional rights. And that the judge said “constitutes irreparable injury.”

What that means, Bury wrote, is he can order immediate intervention rather than simply allowing those affected to sue — after the fact — for financial compensation.

It was the part of the order to provide mats and blankets that caused Border Patrol to seek appellate review.

Attorneys for the government argued that allowing detainees to lie down to sleep significantly reduced the holding cell capacity and interfered with their ability to transfer individuals efficiently. They also said the presence of the mats had increased processing time and made it difficult to comply with federal laws which require separating and monitoring “vulnerable” populations.

Callahan, however, said the evidence shows that Bury was careful to balance the rights of the detained individuals with any “legitimate governmental objective.”

In this case, she said, Bury acknowledged that the Border Patrol stations are not really designed for holding people but instead for short periods between being detained and moved somewhere else. And Callahan noted that Bury crafted his order to recognize that the agency need not provide the same level of services to those in the stations as might be required in an actual detention facilities.

The judge also said there is “little to no evidence” that providing detainees with mats interferes with the ability of the Border Patrol to identify and process individuals.

On the other side of the equation, Callahan agreed with Border Patrol that providing showers for thousands of detainees “raises substantial security and logistical concerns.”

“Furthermore, although plaintiffs have a right to hygiene, the Constitution does not require access to a shower within 12 hours or even 24 hours,” she said.

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