Posted on February 22, 2020

Arizona Migrant Detention Facilities, Where Some Sleep in Bathroom Stalls, are Unfit for Humans, Judge Rules

Meagan Flynn, Washington Post, February 20, 2020

A federal judge in Arizona has ruled that Border Patrol facilities in the Tucson sector deprive migrants of “basic human needs,” saying the conditions at the temporary detention facilities are “substantially worse” than those in jails or prisons and violate the Constitution.

Overcrowding was at times so severe, U.S. District Judge David C. Bury found, that migrants were forced to sleep on the floor in bathrooms and in toilet stalls.

The Wednesday ruling permanently enjoins U.S. Customs and Border Protection from detaining migrants in holding cells at its Tucson sector stations for longer than 48 hours — “unless CBP can provide conditions of confinement that meet detainees’ basic human needs.”

That means migrants staying any longer than two days must be provided a variety of things they have not been getting: sleep free from constant disruption, in a real bed with a blanket; nutritious food; access to a shower; and a medical assessment by a medical professional.

The ruling also says CBP must immediately stop making migrants sleep in “toilet areas” because of overcrowding.

“Regardless of whether a detainee is sleeping on a mat or directly on the concrete floor, being forced to sleep in a toilet area due to overcrowding offends the notions of common decency,” Bury, a George W. Bush appointee in the District of Arizona, wrote in the 40-page order. “It is unsanitary and degrading for all detainees who either have to sleep in the toilet area or try to use the toilet when others are sleeping there.”

A CBP spokesman said the agency is reviewing the ruling and deferring to the Justice Department, which did not immediately respond to a request for comment.

Bury’s ruling, which follows a seven-day bench trial in January, makes permanent a 2016 temporary injunction that compelled CBP to provide mats and silver Mylar blankets to all detainees; many were previously sleeping on the bare concrete floor.

The class-action lawsuit was filed in 2015 by the National Immigration Law Center, the American Civil Liberties Union, the American Immigration Council, Morrison & Foerster, and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area to combat filthy Obama-era conditions. But the case extends through the Trump administration, with most evidence at trial spanning 2017 to 2019, an attorney for the migrants told The Washington Post.


The Fifth and 14th Amendments bar government from punishing people before being convicted of a crime. Immigrants are civilly held after crossing the border.

The government has long argued in this case and in similar cases that CBP facilities were not designed for long-term detention, serving as temporary holding facilities until migrants can be transferred to other agencies. Processing them should take only a matter of hours, never longer than 48 hours, according to the ruling. That’s why most Border Patrol stations are not outfitted with showers, which CBP has said would slow down processing times.

But according to the ruling, in 2019, 34 percent of the 63,490 migrants detained in facilities in the Tucson sector spent more than 48 hours in custody, with 19 percent held longer than three days.


In June, U.S. District Judge Dolly M. Gee ordered the federal government to work with an independent monitor to immediately improve the unsanitary conditions affecting hundreds of children.

Around the same time, in a separate case, a panel of judges on the U.S. Court of Appeals for the 9th Circuit excoriated a Justice Department lawyer for arguing that the government wasn’t legally required to provide child migrants toothbrushes, soap, showers, towels or adequate sleeping conditions.