Immigration Detainees Can Sue USA as a Class

TUCSON (CN) - A federal judge certified a class of civil detainees who accused the Tucson Sector Border Patrol of denying them sleep, food, water, medicine and basic sanitation in Southern Arizona immigration jails.

Norlan Flores, a 34-year-old Nicaraguan with two stints in Border Patrol jails in the Tucson Sector, and two Jane Does still in jail sued the Secretary of Homeland Security and other federal officials in June 2015.

They claim that holding cells at several Tucson Sector jails are unconstitutionally "inhuman and punitive," that detainees are often "packed into overcrowded and filthy holding cells with the lights glaring day and night; 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 incommunicado in these conditions for days."

U.S. District Judge David Bury on Monday rejected the government's arguments that the potential class lacked commonality. The government claimed such conditions are not widespread, and applied to the treatment of criminals under the Eight Amendment rather than civil immigration detainees under the Fifth Amendment.

Bury called the government's reasoning "absurd."

"Such a finding would lead to the absurd result that only criminal detainees, not civil detainees, could ever litigate system-wide conditions of confinement as a class," Bury wrote in his Jan. 11 order. "For purposes of commonality the operative question is not whether the same detention status and same legal standard applies as applies in other analogous class action cases."

Citing the landmark ruling in Walmart v. Duke (2011), Bury added: "(T)he question is whether the putative class members, themselves, present a common contention that 'is capable of classwide resolution,' meaning 'determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.'"

Bury also rejected the government's claim that Flores should be dismissed as a plaintiff and class representative because he was not in custody when the lawsuit was filed.

"For purposes of standing, Flores's previous 36-hour detention without contact with counsel after a minor traffic violation, coupled with his indeterminate wait for his approved Visa is sufficient to show an 'actual or imminent invasion of a legally protected interest,'" Bury ruled.

The judge certified a class that includes "All individuals who are now or in the future will be detained for one or more nights at a CBP facility within the Border Patrol's Tucson Sector," though he directed the plaintiffs to file an amendment "better describing" the phrase "one or more nights."

Bury also appointed Flores and the two Jane Doe plaintiffs as class representatives.

The class is potentially huge. Some 200,000 people were arrested in the Border Patrol's Tucson Sector in 2013-2014, which includes eight stations in four counties.

"The class is certified as to defendants' alleged violations under the Fifth Amendment Due Process Clause and the APA [Administrative Procedures Act] of the following asserted rights: The right to sleep, the right to hygienic and sanitary conditions, the right to adequate medical care, the right to adequate food and water, and the right to warmth," Bury wrote.

The plaintiffs are represented by Morrison & Foerster, the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area.

"With these rulings, we can now focus on building a record and documenting the abhorrent conditions that detained individuals must endure and to ending these conditions once and for all," American Immigration Council attorney Mary Kenney said in a statement.

A Border Patrol official said Thursday that it is CBP policy not to comment on pending litigation.

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