Doe v. Nielsen

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

Immigrant rights groups have filed a class-action lawsuit challenging detention conditions in CBP (Customs and Border Protection) detention facilities. The complaint alleges that 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 have filed suit on behalf of two women detained in the Tucson Border Patrol Station as well as a Tucson man detained twice in that facility. All Plaintiffs consistently recount days of mistreatment and neglect during their time in Border Patrol holding cells. Plaintiffs’ accounts are fully consistent with accounts of the many former detainees who signed declarations describing their confinement in holding cells within the Tucson Sector. Plaintiffs allege that conditions in all of the Tucson Sector Border Patrol facilities violate the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act and seek to compel the Tucson Sector of the Border Patrol 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 filed a motion for expedited discovery in which they sought the opportunity to inspect 4 of the 8 Border Patrol facilities at issue, as well as 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.  The Court granted expedited discovery.  Thereafter, Plaintiffs filed a motion for sanctions over Defendants’ failure to fully comply with the expedited discovery order, which the Court granted in part.

In early 2016, the Court certified a class consisting of all detainees who now or in the future were held overnight in a CBP facility within the Tucson Sector of the Border Patrol. The Court also ruled on Defendants’ Motion to Dismiss, denying it with respect to all of Plaintiffs’ constitutional claims but dismissing Plaintiffs’ APA claims.

On December 4, 2015, Plaintiffs moved for the issuance of a preliminary injunction that would order the Border Patrol to alleviate the harsh conditions of detention as soon as possible. The motion was initially filed under seal. Defendants’ moved to seal much of the evidence supporting Plaintiffs’ preliminary injunction 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 newspaper, moved to intervene in the suit for the limited purpose of opposing Defendants’ Motion to Seal.  The Court subsequently granted the Arizona Republic’s motion, unsealed numerous documents, and asked for further briefing on the remainder.  The Court also amended the class definition such that it now includes all individuals who now are or in the future will be detained by Border Patrol in its Tucson Sector.

On November 14th, 2016, plaintiffs presented evidence at an evidentiary hearing for the preliminary injunction, arguing that the Border Patrol’s facilities continued to violate the rights of detainees. On Friday, November 18, 2016, Judge Bury issued a preliminary injunction, holding 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. Stating that “purgatory should not be worse than hell,” Judge Bury then ordered the Border Patrol to improve the conditions in the Tucson Sector for all class members.

On January 3, 2017, the Court denied Defendants’ Motion for Reconsideration. On March 13, 2017, the Court granted in part a motion for sanctions against Defendants for their failure to preserve video evidence. On March 20, 2017, Defendants submitted evidence to the Court indicating that they had taken remedial steps to ensure preservation of video evidence.

Both parties appealed to the Ninth Circuit. On December 22, 2017, the Ninth Circuit upheld the District Court’s decision in its entirety. Following that decision, the case returns to the District Court for a possible trial on a permanent injunction. As of August 2018, this case remains pending.

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 |