Doe v. Nielsen

Doe v. Nielsen, No. 4:15-cv-00250-DCB (D. Ariz., filed June 8, 2015)

Three individuals filed a class action suit challenging detention conditions in the Tucson Sector of the U.S. Border Patrol. The complaint alleges that the Tucson Sector Border Patrol holds men, women, and children in freezing, overcrowded, and filthy cells for days at a time in violation of the U.S. Constitution and CBP’s own policies. Detained individuals are stripped of outer layers of clothing and forced to suffer in brutally cold temperatures; deprived of beds, bedding, and sleep; denied adequate food, water, medicine and medical care, and basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins, diapers, and showers; and held virtually incommunicado in these conditions for days.

The American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP represent the plaintiffs and class. Plaintiffs seek to compel the Tucson Sector to bring its detention facilities in line with Constitutional standards, including limiting the time a person may be detained in holding cells to a few hours, providing adequate food, water, and medical care, beds and bedding, access to showers and hygiene supplies, and maintaining appropriate capacity limits and temperature controls, among other reforms.

Subsequent to filing the suit, Plaintiffs sought and were granted expedited discovery, and thus were able to inspect 4 of the 8 Border Patrol facilities at issue, and were given copies of CBP video recordings of the holding cells and agency logs from these same 4 facilities dating back to the filing of the complaint. Thereafter, Plaintiffs filed a motion for sanctions over Defendants’ failure to fully comply with the expedited discovery order, which the Court granted in part.

On December 4, 2015, Plaintiffs moved for a preliminary injunction. Defendants’ moved to seal much of the evidence supporting Plaintiffs’ motion, and thus block public exposure to photographs and other revealing evidence.  On January 28, 2016, Phoenix Newspapers Inc., the parent corporation to the Arizona Republic, moved to intervene in the suit for the limited purpose of opposing Defendants’ Motion to Seal.  The Court granted the Arizona Republic’s motion and unsealed numerous documents.

In early 2016, the Court certified a class consisting of all detainees who now or in the future will be detained by the Border Patrol in the Tucson Sector. The Court also denied Defendants’ motion to dismiss with respect to the constitutional claims but did dismiss Plaintiffs’ APA claim.

In late 2016, following an evidentiary hearing, the District Court issued a preliminary injunction which held, among other things, that forcing a detainee to sleep on a concrete floor with no bedding was a violation of his or her constitutional rights. The Court ordered Border Patrol to provide sleeping mats to all individuals detained for 12 hours or more; afford individuals a means to clean themselves; provide them with toothbrushes and toothpaste; monitor cell conditions to ensure that they were sanitary and that toilets and sinks were in working condition; and adopt an enhanced medical screening form to use with all detained individuals. Both parties appealed to the Ninth Circuit. On December 22, 2017, the Ninth Circuit upheld the District Court’s decision in its entirety.

Plaintiffs’ partial motion for summary judgment was denied on March 15, 2019, with the Court ruling that all issues are best resolved at trial. Trial will be held in January 2020.

Counsel: The American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP

Contact: Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org

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