ACLU Sues Border Patrol and Homeland Security

The Arizona ACLU has teamed up with its San Diego counterpart and a private law firm, Cooley LLP, to file a federal lawsuit against multiple U.S. agencies for failing "to produce records related to the abuse and mistreatment of children in the custody of Customs and Border Protection and its sub-agency, the Border Patrol."

Five federal agencies -- the Department of Homeland Security, the Office of Inspector General, Customs and Border Protection, Immigration and Customs Enforcement, and the Office for Civil Rights and Civil Liberties -- are blamed for not protecting immigrant children taken into custody, though the formal charge is violating the Freedom of Information Act.

"DHS officials are well aware that Border Patrol detains children in inhumane conditions, yet [they] have allowed those conditions to persist . . . By failing to meaningfully investigate or otherwise respond to consistent reports of systemic abuse, DHS and CBP officials have demonstrated a continuing disregard for the civil and human rights of children in their custody, and may have violated state and federal child abuse reporting laws," states the lawsuit.

Filed Tuesday, the lawsuit comes less than a year after the ACLU submitted a complaint to DHS on behalf of 116 migrant children abused by Border Patrol. The reported mistreatment included "harsh temperatures, severe overcrowding, and denial of adequate hygiene supplies, bedding, food, water, and medical care," allegations the CBP Commissioner called "spot-on."

"In some ways this [lawsuit] is a follow-up to the complaint," ACLU Border Litigation Attorney James Lyall tells New Times. "DHS has consistently failed to do anything with complaints it gets from individuals and advocacy organizations." A 2014 American Immigration Council Report that called the complaint system an "ornamental component of CBP that carries no real weight in how the agency functions."

There is a long and well-documented history of abuse by Border Patrol agents, but it yields little disciplinary or corrective action. Case in point: Shortly after the ACLU filed the complaint, the Office of Inspector General said it would conduct an investigation into the issue, then promptly called it off four months later.

Lyall says government agencies have consistently tried to "downplay" the severity of the situation, blaming it on the "surge" of children crossing the border in recent years, even though this treatment is nothing new. "The only way that the surge figures into the analysis is that more children are being subjected to the horrific conditions," he says.

While the suit's specific goal is to obtain the requested records, the plaintiffs also are trying to hold the DHS and Border Patrol accountable for their actions. "We hope to show the extent of neglect and mistreatment of immigrant children [and] the failure of multiple institutions to protect children," Lyall says. Because as far as he's concerned, the Border Patrol is basically operating black sites.

"Border Patrol restricts access to detention facilities such that attorneys, advocates, and family members are generally prohibited from meeting with detainees, many of whom are held incommunicado for days. Immigrant children -- like all immigrants -- have no guarantee of legal counsel in removal proceedings; without legal representation, children are far less likely to report abuse or pursue civil rights complaints involving government officials," notes the lawsuit.

And the fact that the agencies have been able to deny and ignore that there is a problem is remarkable, Lyall says, "because by any reasonable definition of child neglect, these conditions qualify."

Not that anyone should be surprised that a problem exists, he adds: "It's consistent with overall border strategy of deterrence."

His group and other immigration advocates hear stories all the time about Border Patrol agents yelling things like, "If you don't like it, you shouldn't have come!" And "This is what you get for coming here!" (It's important to note that he doesn't know whether "horrific and brutal detention" is explicitly part of BP policy, but he feels it is certainly consistent with the strategy.)

What happens to immigrants in custody -- adults and children alike -- is "brutal, inhumane, and unconstitutional," Lyall says, which is why the ACLU hopes to take further legal action after it receives the evidentiary materials requested in this suit. "Sooner or later we're going to start getting documents [that prove] multiple agencies have failed to act and violated child protection laws."

(Read the full text of the lawsuit below)

ACLU FOIA Violation

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Miriam is a staff writer at Phoenix New Times.
Contact: Miriam Wasser