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Rivera Rosa v. McAleenan

United States District Court, S.D. Texas, Brownsville Division

October 15, 2019

KEVIN K. MCALEENAN, et al., Respondents. JAIRO ALEXANDER GONZALEZ-RECINOS, et al., Petitioners,
KEVIN K. MCALEENAN, et al., Respondents. JAVIER ERNESTO GIRON MONTERROZA, et al., Petitioners,
KEVIN K. MCALEENAN, et al., Respondents. SANTOS ZUNIGA, et al., Petitioners,
KEVIN K. MCALEENAN, et al., Respondents. BRYAN LOPEZ-LOPEZ, et al., Petitioners,
KEVIN K. MCALEENAN, et al., Respondents.


          Fernando Rodriguez, Jr. United States District Judge

         United States Customs and Border Protection (CBP) detained sixteen aliens for being in the United States illegally and kept them in its custody for weeks before transferring them to the custody of Immigration and Customs Enforcement (ICE). CBP allegedly maintained these aliens in abhorrent conditions and without access to, or contact with, counsel or family. The detained aliens filed five lawsuits, which have now been consolidated into this action, alleging a petition for writ of habeas corpus and causes of action based on alleged violations of the Administrative Procedure Act and the Fifth Amendment of the United States Constitution.[1]Petitioners advance their claims in their individual capacities and as putative class representatives of similarly situated aliens in CBP custody.[2]

         Petitioners currently seek a preliminary injunction that would require Respondents to, among other things, grant detained aliens access to counsel while in CBP custody, improve the conditions at CBP facilities, and transfer all aliens from CBP custody to ICE custody within seventy-two hours, or otherwise release the aliens on bond or with electronic monitoring.

         In each of the individual lawsuits, the Court denied the request for a temporary restraining order and scheduled a preliminary injunction hearing. Following consolidation, Petitioners filed their Second Amended Petition, [3] and then filed their Motion for Preliminary Injunction.[4] On September 5 and 6, 2019, the Court held a two-day evidentiary hearing during which 11 witnesses testified.[5] The record contains numerous exhibits and several briefs, including one from amici American Civil Liberties Union Foundation of Texas and the American Civil Liberties Union Foundation.[6]

         The Court has considered the substantial record and the applicable law. For the following reasons, the Court finds that the Motion for Preliminary Injunction should be denied.

         I. Findings of Fact

         Based on the exhibits in the record and the testimony the parties presented at the preliminary injunction hearing, the Court makes the following findings of fact.[7]

         A. Standard Procedures for Detained Aliens[8]

         United States Customs and Border Protection (CBP), a component of the Department of Homeland Security (DHS), safeguards the nation's borders. The United States Border Patrol serves as CBP's law enforcement office. By law, Border Patrol's primary responsibilities include “interdicting persons attempting to illegally enter or exit the United States”.[9] CBP detains individuals who cross “the border illegally[], process[es] them and then turn[s] them over to Immigration and Customs Enforcement [ICE]”.[10] (In this Order, the term CBP includes the actions of Border Patrol.)

         When CBP detains an alien in the field, an initial medical field screening occurs.[11] If an alien requires immediate medical attention, CBP takes the alien to the closest medical facility.[12]Otherwise, CBP transports the individual to a CBP station. This lawsuit concerns CBP stations in the Texas counties of Cameron, Willacy, Starr, and Hidalgo. As of April 2019, within those counties, CBP maintained a Centralized Processing Center in McAllen and stations in Rio Grande City, McAllen, Weslaco, Harlingen, Fort Brown, and Brownsville (collectively, the “CBP Stations”).[13] Until the Spring of 2019, CBP transported most aliens to the McAllen Centralized Processing Center, which has a maximum capacity of 1, 500 aliens.[14]

         When aliens arrive at a CBP Station, they receive another medical examination. If medical personnel determine that an alien requires care, or if the alien expresses medical needs, CBP transports the alien to a medical center or has medical personnel at the station address the issue.[15]

         For aliens who clear the medical examination, CBP conducts an initial interview, known as vetting or intake.[16] As part of this vetting, an immigration officer interviews the alien to obtain background information, biometrics, and criminal history.[17] This process enables CBP to confirm the identity of the alien.[18] The immigration officer will inform the alien of the right to have his country's consular office notified of his arrest or detention, and this notification is documented in a Consular Notification Form, which each alien signs.[19] For detainees from Spanish-speaking countries, CBP uses a Spanish language version of the form and provides a translator. The immigration officer will then designate the alien for expedited removal or for removal proceedings.

         1. Expedited Removal

         Expedited removal applies when an alien found inadmissible by an immigration officer is encountered within 100 miles of the border and cannot show he was physically present in the United States continuously for the 14 days before being encountered.[20] Under expedited removal, an immigration officer may “order the alien removed from the United States without further hearing or review.”[21] Before removal, however, the immigration officer poses various questions to the alien, including the four in Form I-867B:

Why did you leave your home country or country of last residence?
Do you have any fear or concern about being returned to your home country or being removed from the United States?
Would you be harmed if you are returned to your home country or country of last residence?

         Do you have any questions or is there anything else you would like to add?[22]The immigration officer records the responses on the form, and requests that the alien sign it under oath, confirming that the answers are true and correct.[23]

         If an alien does not express fear of being returned to his country, Department of Homeland Security regulations require that the alien be advised of the charges against him and the details on his “identity, alienage, and inadmissibility, ” and that he be provided “an opportunity to respond” to the charges.[24] Having done so, if the alien is from Mexico, CBP can deport the alien without further proceedings.[25] If the alien is from a non-contiguous country, CBP transfers the alien to ICE, which then deports the individual.[26]

         But if an alien under expedited removal proceedings conveys an intent to apply for asylum or expresses a fear of persecution in his home country, all removal proceedings must stop “until the alien has been referred” for a credible fear interview before an asylum officer.[27]CBP makes no determinations on the merits of a credible fear interview, and does not conduct such interviews.[28] Most aliens who require a credible fear interview await transfer to ICE custody and are then interviewed at an ICE facility. Once CBP transfers an alien to ICE custody, CBP's responsibility as to the care and custody of that alien ends.[29]

         An alien who requires a credible fear interview receives a Form M-444, “Information About Credible Fear Interview”, which describes the interview process and the alien's rights.[30]The alien has the “right to consult with other persons prior to the interview and any review thereof at no expense to the United States Government” and “the right to request that an immigration judge review the asylum officer's credible fear determination”.[31] Form M-444 also notifies the alien of the “consequences if the asylum officer determines the absence of a credible fear of persecution or torture”.[32]

         CBP does have the authority, with approval from its headquarters, to release individuals from CBP custody with a Notice to Appear.[33] However, this release mechanism does not typically apply to those under expedited removal proceedings.[34]

         2. Removal Proceedings

         Based on the initial interview with an alien, an immigration officer can conclude that the alien is inadmissible or subject to deportation under applicable statutes based on several grounds, including health concerns, criminal history, security risks or marriage fraud.[35] In such cases, the immigration officer processes the alien for removal proceedings under 8 U.S.C. § 1229. CBP usually transfers an alien designated for removal proceedings to ICE custody.[36]Upon transfer, CBP's responsibility as to the care and custody of that alien ends.

         With some exceptions, Section 1226 of Title 8 governs the detainment of aliens processed for removal proceedings. The Attorney General can detain the alien or release him on bond or conditional parole “pending a decision on whether the alien is to be removed from the United States, ” except as provided in § 1226(c), which requires the “detention of criminal aliens”.[37] An alien may appeal his custody terms to an Immigration Judge, who also oversees the removal proceeding process.[38]

         B. Procedures and Standards for Conditions at CBP Stations

         When CBP transports aliens to a station, CBP places them in hold rooms based on several factors, such as age, gender, and whether the aliens are traveling as a family unit. CBP moves aliens among different hold rooms depending on their stage in processing, for meals, for the cleaning of hold rooms, and for security concerns. The size and capacity of hold rooms vary, but every hold room has multiple concrete benches, a toilet, a sink, and access to drinking water.[39]

         In October 2015, CBP promulgated its National Standard of Transport, Escort, Detention, and Search (“TEDS Standards”) to “govern CBP's interaction with detained individuals.”[40] Under the TEDS Standards, “[t]he safety of CBP employees, detainees, and the public is paramount during all aspects of CBP operations.”[41] CBP must make every effort “to promptly transfer, transport, process, release, or repatriate detainees as appropriate according to each operational office's policies and procedures, and as operationally feasible.”[42] “Detainees should generally not be held for longer than 72 hours in CBP hold rooms or holding facilities.”[43]Respondents agree that CBP designed and maintains its stations for the short-term detention of aliens.[44]

         “Every effort must be made to ensure that hold rooms house no more detainees than prescribed by the operational office's policies and procedures . . . and [c]apacity may only be exceeded with supervisory approval.”[45] Even so, “under no circumstances should the maximum occupancy rate, as set by the fire marshal, be exceeded.”[46]

         The TEDS Standards provide guidance on many factors related to the conditions under which CBP detains aliens, including:

Medical Care: “[U]pon a detainee's entry into any CBP hold room, . . . observed or reported injuries or illnesses should be communicated to a supervisor . . . and appropriate medical care should be provided or sought in a timely manner . . . . “[I]f officers/agents suspect that a detainee has an observed or reported medical condition, such as a contagious disease, appropriate protective precautions must be taken.”[47]
Temperature: “When it is within CBP control, officers/agents should maintain hold room temperature within a reasonable and comfortable range for both detainees and officers/agents. Under no circumstances will officers/agents use temperature controls in a punitive manner.”[48]
Hygiene: “Detainees must be provided with basic personal hygiene items, consistent with short term detention and safety and security needs. Reasonable efforts will be made to provide showers, soap, and a clean towel to detainees who are approaching 72 hours in detention.”[49]
Food: “Food provided must be in edible condition (not frozen, expired, or spoiled). Adult detainees, whether in a hold room or not, will be provided with food at regularly scheduled meal times. Adult detainees, whether in a hold room or not, will be provided with snacks between regularly scheduled meal times.”[50]
Water: “Functioning drinking fountains or clean drinking water along with clean drinking cups must always be available to detainees.”[51]
Cleanliness: “All facilities or hold rooms used to hold detainees must be regularly and professionally cleaned and sanitized.”[52]

         C. Number of Detentions and Average Time in CBP custody

         1. 2019 Surge

         In recent years, the Rio Grande Valley has consistently represented between 40-45% of the total apprehensions along the United States' southern border with Mexico:[53]

Fiscal Year

Southern Border Total Apprehensions

RGV Apprehensions

Percentage of Apprehensions Represented by RGV

Oct. 2015 - Sept. 2016

408, 870

186, 830


Oct. 2016 - Sept. 2017

303, 916

137, 562


Oct. 2017 - Sept. 2018

396, 579

162, 262


         During these three fiscal years, the average monthly apprehensions have totaled 15, 569, 11, 464 and 13, 522, respectively.

         Beginning in the first quarter of 2019, CBP experienced a sharp increase in the number of detained aliens. The increased volume began in January, peaked in May, and remained high through July:[54]


17, 711


25, 355


33, 758


36, 699


49, 761


43, 170


36, 860

         During these seven months, the monthly average equaled 34, 793. At the height of the 2019 Surge, in May, CBP detained 2, 400 aliens in one twenty-four-hour period.[55] As of early September 2019, Border Patrol had apprehended 328, 000 individuals for Fiscal Year 2019-“a hundred percent increase” over Fiscal Year 2018.[56]

         The demographics of the detained aliens also changed during the 2019 Surge. Notably, about 50% of men crossing the border arrived accompanied by children, which represented a much higher percentage than historical norms.[57] In 2014, for example, 1% of male aliens came with children.[58] Overall, family units-which consist of a parent or guardian accompanied by a child-represented about 60% of all apprehensions for Fiscal Year 2019.[59]

         CBP has also experienced a 126% increase over Fiscal Year 2018 in apprehensions of “OTM” aliens-i.e., aliens Other Than Mexican.[60] In general, repatriation to a contiguous country, such as Mexico, occurs more expeditiously, as CBP can remove a Mexican alien directly and without involving other agencies.[61] In contrast, for OTM aliens, the removal process must run through ICE, and the requisite transfer of the alien to ICE custody increases the time and resources required for removal.[62]

         As the number of individuals and complexity of cases increased, so did processing time in CBP Stations.[63] At the high point of the 2019 Surge, the “median time in custody for single adults in the RGV sector was 428 hours”, or about 18 days.[64] The increased time that detained aliens remained in CBP custody stemmed not only from the increased volume of detainees, but also from CBP's decision to prioritize processing, transferring or releasing unaccompanied children and family units.[65] CBP made this decision in part to comply with the Flores Settlement Agreement related to unaccompanied children.[66] As a result, single adults received lower priority for processing and thus experienced longer detention periods.[67]

         2. Third Quarter 2019

         In recent months, CBP has experienced a decrease in detentions. July remained high, at 36, 860 individuals detained, but by August that number decreased to about 11, 000.[68] As a result, by the time of the preliminary injunction hearing in early September, the average time in CBP custody had decreased to 60.89 hours for all individuals, 36.83 hours for OTM single adults and 35.29 hours for Mexican single adults.[69]

         CBP attributed the decreased detention figures to several factors. First, the United States in January 2019 implemented the Migrant Protection Protocols (MPP), under which some individuals who arrive by crossing the Mexican border can be required to await in Mexico for their hearing in the United States.[70] This release of aliens naturally lessens the number of detainees in CBP stations.[71]

         Second, CBP credits the efforts of Central American countries to stem the flow of migrants.[72] For example, in the past, some Central American countries required individuals subject to repatriation to obtain travel documents before the repatriation occurred. Currently, however, the Guatemalan Cooperative Agreement between that country and the United States authorizes the repatriation of Guatemalans before the issuance of travel documents.[73] This agreement lessens the time that these aliens spend in custody in the United States.

         D. Conditions in CBP Facilities during the 2019 Surge

         Both Petitioners and Respondents agree that during the 2019 Surge, the conditions at CBP Stations deteriorated and reached levels that did not comply with the TEDS Standards.[74]The evidentiary record reveals not only deplorable conditions, but also that detained aliens remained in those conditions for extended periods of time.

         In July 2019, the Acting Inspector General provided the Acting Secretary of the Department of Homeland Security with a Management Alert entitled, “Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley”.[75] The Office of Inspector General (OIG) issued the report after visiting five CBP facilities in the Rio Grande Valley, including several at issue in this lawsuit. The OIG Report contains images depicting the extreme overcrowding of families and adults, and highlights many deficiencies in the conditions at the stations visited, including:

One facility had held single adults in standing-room-only conditions for a week;
During OIG visits, detainees “banged on the cell windows, shouted, pressed notes to the window with their time in custody, and gestured to evidence of their time in custody”;
Most single adults had not had a shower despite several being held for as long as a month; “Most single adult detainees were wearing the clothes they arrived in days, weeks, and even up to a month prior.”[76]

         The OIG Report concluded that under the overcrowded conditions, “CBP was not able to meet TEDS standards.”[77]

         The OIG Report also noted that “3, 400 detainees had been held longer than the 72 hours generally permitted under the TEDS standards.”[78] “Of those 3, 400 detainees, CBP held 1, 500 for more than 10 days.”[79] The report stressed that “overcrowding and prolonged detention represent an immediate risk to the health and safety of DHS agents and officers, and to those detained.”[80]

         During the preliminary injunction hearing, no CBP witness disagreed with the findings of the OIG Report.[81] They did highlight that the report had failed to recognize the factors that led to the overcrowded conditions and the efforts that CBP had initiated in response to the situation, but ultimately, the witnesses agreed that the conditions were substandard.[82]

         The testimony that several Petitioners provided during the hearing echoed the findings in the OIG Report. Each of the Petitioners spent time in the CBP Stations during the 2019 Surge.[83] Their testimony and other portions of the record confirmed that all CBP Stations were overcrowded.[84] Because CBP designed the facilities for short-term detention, CBP did not incorporate basic necessities that long-term facilities typically provide. These circumstances affected many aspects of the conditions in which CBP maintained aliens, at times for prolonged periods. Testimony also revealed that CBP often exceeded the maximum capacity of the holding cells.[85]

         The overcrowded conditions worsened the detained aliens' sleeping arrangements. The holding cells contained too many individuals to enable all of them to lie down, so the aliens slept standing up or took turns sleeping on the ground.[86] CBP lacked sufficient sleeping mats, requiring detainees to sleep on the concrete floor.[87] The lights remained on throughout the night, for security reasons and because CBP activities continued around the clock, including moving aliens between the holding cells.[88]

         Most CBP Stations lack showers. One witness testified that he did not shower for 52 days, and another testified that he showered once in 52 days.[89] At best, some CBP Stations occasionally offered the detained aliens wet wipes, although the wipes often proved inadequate.[90] CBP also only occasionally provided basic hygienic products, such as toothbrushes and toothpaste.[91] Consistent with this testimony, one Petitioner testified that he spent 50 days without a toothbrush.[92]

         The holding cells contain only one toilet with limited privacy, especially in an overcrowded room.[93] As the toilet is inside the holding cell and not within a separate enclosed area, the smell of urine and feces permeated the room.[94] At times, the heavy use of the toilet led to its overflowing.[95] One witness testified that during his stay in a holding cell, the toilet overflowed and was not repaired immediately, requiring some detained aliens to sleep or stand in the waste overnight. Those detainees were not provided a shower or clean clothes after standing in the filth.[96]

         Several aliens testified about the inadequate food provided to them. Most received food three times per day, but during certain periods, the three meals consisted of a cookie for breakfast, and a bologna sandwich for lunch and for dinner.[97] Some received even less food.[98]

         Only on rare occasions would detainees receive a hot meal or fruit.[99] This diet unsurprisingly caused some aliens to “becom[e] constipated and requir[e] medical attention.”[100]

         CBP provided medical care, including dental services, although some detained aliens testified that they received inadequate medical attention.[101] Due to the close quarters, sicknesses spread among the detainees.[102] And detained aliens at times shared medicine.[103]

         Detained aliens consistently referred to the CBP Stations as “hieleras” (the Spanish word for icebox) because of the low temperatures in the holding rooms.[104] The Petitioners who testified noted the cold environment in CBP Stations, [105] although CBP witnesses testified that they kept the thermostat set at 74 degrees in McAllen, with the temperature at Donna III varying from 66 to 80 degrees.[106] CBP provided mylar blankets, but several detained aliens testified that the blankets emitted a fine dust, which led to respiratory problems for themselves and other aliens.[107]

         Detained aliens had almost no communication with family or attorneys during their detention. CBP acknowledged that its stations are not designed to allow attorneys to visit with detained aliens, in part because allowing such visits could create security risks for the attorneys.[108] This CBP policy confirms the Petitioners' testimony that they remained detained for weeks without the opportunity to speak with a lawyer.[109]

         Along with the testimony about the general conditions at the CBP Stations, five Petitioners also spoke about their individual experiences. Their respective experiences highlight the specific manners in which the conditions harmed individuals. The witnesses also testified about the initial interviews that CBP provided them and the documents that CBP presented to them for signature. The testimony on this issue was mixed, but did raise concerns about irregularities in CBP's processes.

         1. Kevin Ruano

         CBP detained Ruano for about 26 days in the Brownsville and Fort Brown CBP stations.[110] While in custody, he experienced a fever and nosebleeds.[111] He requested medical attention, but when CBP told him he would lose his place in the removal queue if CBP transported him to a medical facility, he decided to forgo treatment.[112] Due to the limited meals provided, he lost ten pounds while detained.[113]

         Ruano testified that CBP did not explain the asylum process and coerced him to sign certain documents. But he acknowledged that the Form I-831 that he signed contained accurate information.[114] Ruano also testified that the documents were in English, so he could not understand them. But the documents indicate that a translator was present for Ruano and he signed the document agreeing that CBP provided a translator.[115] Ruano testified that he asked to speak to his consulate but was never provided the opportunity to do so.[116]

         2. Jonathan Rizo

         CBP detained Rizo for about 26 days in the Brownsville and Fort Brown CBP stations.[117]He experienced a fever, body aches, and congestion while in CBP custody. At first, CBP only provided “a pill or something”, but as his illness progressed, his fellow detainees pleaded with officers to provide additional medical attention.[118] CBP took Rizo to the hospital, where he was diagnosed with water in his lungs. He received an injection and some pills to help with his ailments.[119]

         Rizo also testified that CBP did not inform him of his right to apply for political asylum or his right to have his consulate notified.[120] He explained that CBP agents “forced” him to sign “a lot of” documents, and that the individual who pressured him to sign spoke to him only in English and laughed when Rizo did not understand.[121] At the same time, the Form I-867B contains the “Subject Refused to Sign” stamp, suggesting that Rizo exercised his right to not sign certain documents. He also disagreed with the statement in the Form I-867B noting that Rizo told CBP that he entered the United States “to seek employment.” Rizo emphasized, “I'm sure that I didn't say that.”[122]

         3. Bryan Lopez Lopez

         CBP detained Lopez for about 52 days in the McAllen, Kingsville, and Corpus Christi stations.[123] He recounted troubling experiences while in CBP custody, although his testimony left unclear whether these experiences occurred in a station at issue in this lawsuit. He recalled agents directing racist and derogatory comments at him and his fellow detainees.[124] He reported that when he slept on the floor, other detainees urinated on him several times.[125] He also developed a foot infection while in CBP custody, and the unsanitary conditions aggravated the condition and prevented the medical treatment he received from being effective.[126]

         Lopez confirmed that he initialed CBP's standard forms.[127] But he also testified that during his initial interview, a CBP agent wanted him to sign a “deportation document”, and that when Lopez refused and expressed a desire to apply for asylum, the agent dismissed him: “And he said, by the way, I'm not interested in that-everything is a lie.”[128] The agent also told him that an asylum officer could only help Lopez with his deportation.[129]

         4. Hector Rivera Rosa

         CBP detained Rivera for about 50 days in the Harlingen, McAllen, and Fort Brown stations.[130] He testified that while in custody, he experienced a toothache, fever, and an eye and foot infection, but received medical treatment solely for the toothache.[131] The treatment proved ineffective, and when CBP denied him a follow up visit with a dentist, he pulled out his own tooth to stop the pain.[132] In addition, the unsanitary conditions in the holding room aggravated his foot infection.[133]

         Rosa testified that he requested to speak to his Consulate but never had a chance to do so while in CBP custody.[134] CBP officers told Rosa that the Consulate could only help with his deportation.[135] CBP officers also told him that an “an attorney cannot do anything for you.”[136]

         5. Juan Carlos Asencio Asencio

         CBP detained Asencio for about 32 days in McAllen.[137] He testified that on top of developing a cough and fever, he also experienced a heart problem while in CBP custody.[138]Around 2 A.M. one day, he woke up short of breath, started to gasp, and “ended up at that time for a few minutes without life.”[139] At the infirmary, a nurse diagnosed him with tachycardia and told him he had heart issues.[140] He was given a laxative and taken back to his cell, despite his request to be taken to the hospital.[141]

         Asencio's Form I-867B and Consular Notification Form contain a “Subject Refused to Sign” stamp.[142] But Asencio testified that CBP officers never asked him to sign any documents and, as a result, he never refused to do so.[143] He confirmed, however, that the Form I-867B contained accurate information.[144] Asencio also testified that CBP refused his request to make a phone call and speak to an attorney.[145] His Consular Notification Form shows that he declined having his Consulate notified, but Asencio refuted this statement: “At no time did I deny it, I asked to see one.”[146]

         E. CBP's Mitigation Efforts during the 2019 Surge

         During the 2019 Surge, CBP engaged in numerous efforts to relieve the overcrowding and improve conditions at its stations. The record shows that CBP knew that it was not complying with its own standards-i.e., the TEDS Standards-but engaged in efforts to relieve the difficult situation that aliens were experiencing.

         In general, CBP sought to transfer aliens to ICE custody as quickly as possible, prioritizing the processing of unaccompanied minors and family units. At the height of the 2019 Surge, however, ICE also reached capacity and often refused to accept additional aliens, forcing CBP to maintain detainees in its custody.[147] CBP began to transfer detained aliens to other CBP facilities, including to Laredo and San Diego.[148] At one point, CBP transferred 7, 500 people per week to these other stations to alleviate the overcrowding in the Rio Grande Valley.[149] CBP witnesses testified that they did not maintain custody of aliens to punish or deter them.[150]

         To deal with the influx of aliens, CBP increased virtual processing, installed more processing terminals, and added 125 agents.[151] In May 2019, CBP erected four tents, each capable of holding 142 people, at the McAllen station.[152] About a month later, CBP in McAllen also began providing three hot meals a day to detainees, and installed mobile shower facilities that enabled detainees to receive a shower every 72 hours.[153] At the same station, CBP also purchased drop sinks so detainees could wash themselves and their clothes more thoroughly.[154]And at times, CBP officials spent their own money on body wash, shampoo and conditioner to help detainees.[155]

         In May 2019, CBP opened a new station, called Donna I, with a holding capacity for 500 people. A month later, Donna II opened, adding capacity for 500 aliens. CBP uses Donna I and II for family units.[156]

         F. Third Quarter 2019: Improved Conditions and Decreased Time in Detention

         In August 2019, CBP opened Donna III, a “soft-shell” facility capable of holding 2, 000 single adults.[157] The facility has sleeping mats, 160 portable restrooms, showers (60 for males and 60 for females), a telephone bank with 20 telephones, medical facilities and 68 washer/dryer units.[158] The lights in Donna III remain on continuously for the safety of the detainees and CBP personnel.[159]

         Also in August, CBP issued interim guidance for its agents about enhanced amenities for CBP detainees.[160] Based on this guidance, when aliens currently arrive at Donna III, they receive clean clothes and a shower, and can access the phone bank.[161] Each day, they receive a pre-pasted toothbrush, as well as three meals, two of which are hot.[162] Every third day, detained aliens can make calls and shower. They are provided with toothpaste, body wash and deodorant for each shower.[163] CBP imposes no restrictions on who the detained aliens can call.[164]

         At the time of the preliminary injunction hearing, CBP had 228 aliens detained in Donna III, or about 10% of the facility's capacity.[165] The overall RGV sector operated at about 28% of capacity, with 1, 700 people detained.[166] The average time in CBP custody for single adult males from Mexico and other countries was about 35 hours and 37 hours, respectively, although these averages do not include non-deportable aliens.[167] As one impact of the increased capacity, as of August 2019, CBP detained no aliens at the McAllen station.[168]

         All three Donna facilities are only temporarily funded.[169] Federal funding for Donna III currently exists through October of this year.[170]

         CBP continues to apprehend about 500 aliens per day.[171] CBP agreed that the possibility of another surge still exists.[172]

         G. Current Immigration Status of Petitioners[173]

         Currently, no Petitioner remains in CBP custody. CBP designated Rivera-Rosa for removal proceedings and transferred him to ICE custody.[174] He remains detained.[175]

         As to the other fifteen Petitioners, CBP designated them for expedited removal and ultimately transferred them to ICE custody. These Petitioners all expressed a fear of persecution or desire to apply for asylum, and have undergone a credible fear interview, although the Court is aware of the interview results for only five Petitioners.[176] Of those five, an asylum officer determined that Zuniga Gaitan, Landaverde Lopez and Recinos Nolasco had not established a credible fear of persecution or torture.[177] These individuals each appealed the decision to an Immigration Judge, who concurred with the asylum officer's findings. Upon the filing of a Joint Stipulation of Dismissal, the Court has dismissed without prejudice the claims of these three individuals.[178] The Court has similarly dismissed without prejudice the claims of Giron-Monterroza.[179] It is the Court's understanding that these aliens have been removed or deported.

         An asylum officer concluded that Reyes-Vigil and Areas-Hernandez demonstrated a credible fear of persecution or torture, but ICE continues to keep these men in custody.[180] ICE also continues to detain Perez Valle, Flandez Fleites, Santay Son and Asencio Asencio.[181]

         ICE has released Gonzalez Recinos, Herrera Rivera, Rizzo Ruano, Beltran Rizo and Lopez Lopez.[182]

         II. Analysis

         Petitioners advance three causes of action in their Second Amended Petition. First, Petitioners Perez Valle, Landaverde Lopez, Lopez Lopez and Santay Son present a petition for writ of habeas corpus based on the allegations that Respondent Pitts continues to hold them in custody, that they have either not received their credible fear interviews or the results of that interview, and that they continue to “suffer[] the effects of their unlawful detention by CBP.”[183]These four Petitioners seek their immediate release, either on personal recognition, bond or with electronic monitoring.

         Second, Petitioners allege causes of action under the Administrative Procedure Act and the Fifth Amendment of the United States Constitution, basing these claims on allegations that CBP held detained aliens in custody for longer than 72 hours and in substandard conditions. As to these causes of action, Petitioners assert claims on their own behalf and on behalf of a putative class. As relief, Petitioners seek an order requiring that CBP transfer a detained alien to ICE custody within 72 hours of detention, or release the alien on bond, personal recognition or with electronic monitoring. Petitioners also ask the Court to order CBP to comply with enumerated standards regarding the conditions of detention at CBP Stations.[184]

         In their Motion for Preliminary Injunction, Petitioners present all three causes of action as grounds for the requested injunctive relief. To obtain a preliminary injunction, a movant must establish: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury, if the injunction is denied, outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.[185]

         A. Substantial Likelihood of Success on the Merits

         1. Habeas Claim

         As indicated above, in their live pleading, Petitioners limit the scope of their habeas claim to certain Petitioners who remain in ICE custody, requesting that the Court order their immediate release. But in their Motion for Preliminary Injunction, all Petitioners argue they have demonstrated a likelihood of success as to their claim for habeas corpus based on the alleged violation of their due process rights under the Fifth Amendment when CBP held them for longer than 72 hours in substandard conditions.[186] Respondents object to this shift in the scope of the Petition, but also respond to the substantive arguments, as the issues are relevant to the other causes of action.

         The Court agrees that Petitioners' petition for writ of habeas corpus is limited by the Second Amended Petition. In that pleading, Petitioners seek only immediate release for certain Petitioners, based mainly on allegations related to credible fear interviews while in ICE custody. Petitioners have not developed the record on the alleged delays in the credible fear interviews or obtaining the results of those interviews. And Petitioners do not brief the matter in their Motion for Preliminary Injunction. As a result, the Court finds that Petitioners have not established their right to relief under a writ of habeas corpus as presented in the Second Amended Petition.

         At the same time, the analysis on the habeas claim that Petitioners seek to advance in their Motion for Preliminary Injunction applies to the causes of action with respect to other claims. Thus, the Court will consider those grounds in the context of a habeas claim.

         An individual may seek habeas relief under 28 U.S.C. § 2241 if he is “in custody” under federal authority “in violation of the Constitution or laws or treaties of the United States.”[187] The “sole function” of a habeas petition is to “grant relief from unlawful imprisonment or custody.”[188] “Allegations that challenge the fact or duration of confinement are properly brought in habeas petitions, while allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions.”[189] The Fifth Circuit follows a bright-line rule: “If a favorable determination . . . would not automatically entitle [the detainee] to accelerated release, . . . the proper vehicle is a [civil rights] suit.”[190] Consistent with these principles, the Fifth Circuit has concluded that claims based on overcrowding in prisons and the denial of medical treatment for inmates cannot be challenged by a habeas corpus petition.[191] District courts have applied the principle to reject a habeas action based solely on alleged inadequate conditions.[192]

         Here, Petitioners challenge both the duration and conditions of their confinement.

         a. Length of Detention

         Petitioners argue that CBP's failure to transfer detainees to ICE custody “within a reasonable amount of time” creates “unconstitutionally prolonged detention”, [193] and they request that the Court order CBP to effectuate this transfer within 72 hours or release the aliens on bond or with electronic monitoring.[194] But Petitioners cite no statutory language or caselaw that would support the imposition of a specific time limit for CBP's detention of aliens, and caselaw does not support grafting such a requirement into the law. On the contrary, the applicable statutes, as applied by the Supreme Court, suggest that no specific time limit applies to CBP's detention of aliens.

         The Supreme Court has recognized “detention during deportation proceedings as a constitutionally valid aspect of the deportation process.”[195] “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”[196] At the same time, “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem” under the Fifth Amendment, [197] and this amendment “entitles aliens to due process of law in deportation proceedings”.[198]

         The law empowers CBP agents to detain aliens through warrantless arrests if they have reason to believe that the person is in the country in violation of immigration laws or regulations and “is likely to escape before a warrant can be obtained for his arrest.”[199] For individuals suspected of violating immigration laws-i.e., a status offense-the CBP agent must take the alien “without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.”[200] CBP complies with this requirement by transporting detained aliens to one of its stations, where an immigration officer conducts an examination to determine admissibility.[201]

         The applicable statutes typically require, and in all instances allow, for the detention of the detained aliens upon completion of the immigration officer's interview. Aliens found to be inadmissible and placed in expedited removal proceedings without the need for a credible fear interview generally are deported quickly and, as a result, prolonged detention does not occur. For aliens requiring a credible fear interview or who have expressed a desire to apply for asylum, an asylum officer conducts the requisite interview. If the asylum officer determines that an alien has shown a credible fear of persecution, “the alien shall be detained for further consideration of the application for asylum.”[202] If the asylum officer reaches a contrary conclusion, the officer orders the removal of the alien, who “shall be detained . . . until removed.”[203] As for aliens subject to removal proceedings, such aliens “shall be detained for a proceeding under section 1229a of this title.”[204]

         The Supreme Court recently confirmed that “nothing in the statutory text [of Section 1225(b)] imposes any limit on the length of detention.”[205] This decision rejected the Circuit Court's holding that detained aliens possess a statutory right to periodic bond hearings under Section 1225(b).[206] The Supreme Court noted that the statute mandates detention “until certain proceedings have concluded”-i.e., either for asylum or removal-and does not say “anything whatsoever about bond hearings.”[207]

         The Supreme Court in Jennings distinguished its 2001 decision in Zadvydas, in which the Court found an “implicit reasonable time limitation” in a statute governing the detention of a certain class of deportable aliens. Zadvydas concerned an alien who had resided in the United States, but because of criminal conduct, had been ordered deported by an Immigration Judge.[208]The immigration law at issue, 8 U.S.C. § 1231(a), required detention of an alien for whom a final removal order existed, and created a 90-day removal period.[209] The same statute provided that after this 90-day period, the “[g]overnment may continue to detain an alien who still remains here or release that alien under supervision.”[210] The alien in Zadvydas had been detained for longer than 90 days because no country would accept him.[211] The situation created the possibility of the Government holding him in detention indefinitely.[212] The Supreme Court considered whether the post-removal statute authorized the Attorney General “to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal.”[213]

         The Supreme Court held that although the statute provided some discretion, it did not “suggest unlimited discretion” to hold detainees.[214] As a result, the Supreme Court construed Section 1231(a)(6) as containing “an implicit ‘reasonable time' limitation, the application of which is subject to federal-court review, ” and found that six months was the presumptively reasonable detention period for post-removal detainees.[215] The Supreme Court found that if this six-month period is surpassed and an “alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing” or otherwise release him.[216]

         Seventeen years later, the Supreme Court in Jennings distinguished Zadvydas as relying on “an ambiguity in Section 1231(a)(6)'s use of the word ‘may.'”[217] In contrast, the relevant portions of the statute in Jennings used “shall”.[218] The Court held that “[w]hile Zadvydas found § 1231(a)(6) to be ambiguous, the same cannot be said of §§ 1225(b)(1) and (b)(2).”[219] As a result, the Supreme Court declined to impose a reasonable time limitation for section 1225(b)(1) and (2) as it had for Section 1231(a)(6).

         The Supreme Court also distinguished Zadvydas on similar grounds in Demore.[220] That case concerned whether 8 U.S.C. § 1226(c), which requires that the Attorney General take into custody an alien found removable for being convicted of certain enumerated crimes, violated the constitution by requiring detention with no requirement that the alien represent a flight risk or pose a danger to society. The Supreme Court held that Congress, through Section 1226(c), could require that criminal aliens be “detained for the brief period necessary for their removal proceedings.”[221] At the time, detention for criminal defendants under Section 1226(c) lasted “roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.”[222]

         The aliens in Demore relied on Zadvydas to argue that unlimited detention without the opportunity to seek release on bond after a determined period violated the Constitution. The Supreme Court rejected this argument, distinguishing Zadvydas on two grounds. First, the Supreme Court noted that Zadvydas concerned aliens “for whom removal was ‘no longer practically attainable, '”[223] and, as a result, the ongoing detention of the alien “did not serve its purported immigration purpose.”[224] In contrast, wrote the Supreme Court, Section 1226(c) concerned the “detention of deportable criminal aliens pending their removal proceedings”, which “serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings.”[225] Second, the Supreme Court distinguished Zadvydas as involving a period of detention that was “indefinite” and “potentially permanent”, while “the detention here is of a much shorter duration.”[226]

         Jennings and Demore provide the applicable analysis in the current matter. Petitioners base their challenge on the same statutes at issue in those cases. While the current lawsuit focuses on detained aliens in CBP custody, and Jennings and Demore concerned aliens presumably in ICE custody, the distinction does not affect the analysis. CBP detains aliens as part of the immigration process, under the authority of Sections 1225 and 1226. Those statutes do not impose time limits for CBP's transfer of detained aliens to ICE custody. Requiring CBP to release aliens on bond or with electronic monitoring after 72 hours of detention would graft into the statute a requirement that Congress did not create. Following Jennings and Demore, the Court declines to do so.

         The analysis in these Supreme Court decisions also supports the Court's conclusion. In Demore and Jennings, the Supreme Court highlighted that the detentions had an identifiable end point, such as the conclusion of the removal proceedings, while Zadvydas considered “potentially permanent” detention. In the current case, Petitioners do not allege that CBP has or intends to detain any alien indefinitely. And the factual record shows that CBP, even at the height of the 2019 Surge, consistently sought to transfer aliens to ICE custody expeditiously, with most aliens transferred within three weeks, which is significantly less time than the detention at issue in Demore. Petitioners appear to argue that the permissible length of detention should be limited here because CBP did not design its facilities for long-term detention of individuals. But the conditions in a facility do not determine whether the Constitution places time limitations on permissible detention. Deficient conditions may support legal actions based on the effect of those conditions, but they do not affect the constitutionally-permissible length of detention in those facilities. In Demore, Jennings and Zadvydas, the Supreme Court never considered the conditions of confinement as a factor.

         As a result, Petitioners have failed to show a substantial likelihood of success on the merits as to a habeas corpus claim based on the length of their detention in CBP custody.

         b. Conditions of Detention

         Petitioners also allege that the substandard conditions in which CBP maintained aliens during the 2019 Surge warrants habeas corpus relief. As the Findings of Fact in this Order indicate, Petitioners submitted substantial testimonial and documentary evidence showing appalling conditions that the detained aliens endured while in CBP custody during the 2019 Surge. Those conditions included, as examples, keeping aliens in standing-room-only holding cells for many days, deficient meals, the lack of basic hygienic products and access to showers, and limited medical care. The CBP witnesses who testified agreed that the conditions at the CBP stations did not meet TEDS standards. In addition, specific individuals recounted very troubling experiences, including one alien pulling out his own tooth when he felt that the care that CBP provided was insufficient, and another alien experiencing a serious heart issue, only to be given a laxative and placed back in his holding room.

         Petitioners devote much of their Motion and related briefs, as well as the testimony of their witnesses, on these substandard conditions and dismaying experiences. And no party contends that detained aliens should be kept in custody in such conditions for prolonged periods. But the question is whether detained aliens who endure such conditions of confinement have recourse through a petition for habeas corpus. Based on controlling authorities from the Supreme Court and the Fifth Circuit, they do not.

         Habeas petitions can only “grant relief from unlawful imprisonment or custody”[227] and cannot be used to challenge “conditions of confinement.”[228] For example, in Carson, an inmate brought a habeas petition challenging his administrative segregation within prison, arguing that segregating him violated the Double Jeopardy and Ex Post Facto Clauses of the Constitution.[229]The District Court had to determine whether the inmate could assert a claim based on habeas corpus, or whether the lawsuit represented a cause of action under 42 U.S.C. § 1983, as a civil action for an alleged deprivation of rights. The District Court held that the challenge concerned the conditions of confinement, which supported a § 1983 claim and not one in habeas. The Fifth Circuit affirmed, reasoning that “a favorable determination . . . would not automatically entitle [the prisoner] to accelerated release”.[230] As a result, the inmate could not advance a habeas corpus claim. Other courts have reached similar conclusions when considering challenges to the conditions of confinement.[231]

         In the current matter, Petitioners contend that the conditions of confinement that CBP maintains violates the detained aliens' constitutional rights.[232] They explain that “the abhorrent conditions at CBP facilities are the byproduct of the duration and fact of Petitioners' illegal confinement in facilities not designed for long-term detention.”[233] But this characterization does not succeed. At the core of their allegations, Petitioners complain of the conditions in which CBP held them. Providing relief on this issue would not require the Petitioners' release, but would require only improving the conditions of confinement. Any person in custody can obtain relief from allegedly inadequate conditions by being released, but this fact does not create a permissible habeas corpus claim when the complaint turns on the conditions of confinement. As a result, Petitioners' allegations fall squarely within those cases concluding that the presented cause of action did not present a cognizable claim for habeas corpus relief.

         Petitioners also argue that various cases support their proposed use of a petition for habeas corpus.[234] But those cases do not apply. In fact, most of those cases only reaffirm that a § 1983 claim is the proper method to challenge conditions of confinement.[235] Petitioners also rely on Bell v. Wolfish, 441 U.S. 520 (1979), in which prisoners challenged their conditions of confinement in habeas corpus. But the Supreme Court in Bell noted that the defendants did not challenge plaintiffs' “use of a writ of habeas corpus to challenge the conditions of their confinement, and petitioners [did] not raise that question in this Court.”[236] Because another cause of action provided jurisdiction, the Supreme Court expressly did not address “the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.”[237] As a result, Bell does not support Petitioners' position here.

         For these reasons, the Court finds that Petitioners have not shown a substantial likelihood of success on the merits of their petition for writ of habeas corpus based on the conditions of their confinement.

         2. Administrative Procedure Act (APA)

         Petitioners allege that CBP violated the APA by holding detained aliens in CBP holding rooms for longer than 72 hours, and by maintaining substandard conditions in violation of CBP's own TEDS Standards.[238] In their Motion, Petitioners focus their APA argument on CBP's alleged “failure to adhere to [its] 72-hour detention policy”.[239]

         Section 702 of the APA waives the Government's sovereign immunity when a plaintiff can satisfy two requirements. First, the plaintiff “must identify some ‘agency action' affecting him in a specific way, which is the basis of his entitlement to judicial review.”[240] Second, for purposes relevant to this lawsuit, a plaintiff must establish that he “suffered legal wrong because of the challenged agency action.”[241] A plaintiff advancing such a claim seeks review “pursuant only to the general provisions of the APA.”[242] In such an action, “[t]here must be ‘final agency action' for a court to conclude that there was a waiver of sovereign immunity”.[243] “If there is no final agency action, a federal court lacks subject matter jurisdiction.”[244]

         The APA defines “agency action” as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”[245] While “[a]gency action . . . need not be in writing to be final and judicially reviewable”, [246] the “only agency action that can be compelled under the APA is action legally required.”[247] “As a general rule, where the rights of individuals are affected, an agency must follow its own procedure, even where the internal procedures are more rigorous than otherwise would be required.”[248] In contrast, “statements of policy” are “not intended to have the force of law . . . [and] do not create legal rights or obligations between an agency and members of the public.”[249] The APA also does not provide a waiver of sovereign immunity for “programmatic challenges.”[250]

         For agency action to be “final”, it must (1) “mark the ‘consummation' of the agency's decision making process, it must not be of a merely tentative or interlocutory nature, ” and (2) “be one by which rights or obligations have been determined, or from which ‘legal consequences will flow.'”[251] For example, the “termination of asylum does not mark the consummation of a decision making process” because “it represents only an intermediate step in a multi-stage administrative process”.[252]

         In the current matter, Petitioners contend that CBP's “deviation” from the TEDS Standards governing the length of an alien's detention represents final agency action subject to judicial review under the APA.[253] Petitioners note that the Supreme Court has held that agencies must follow their internal agency policies, and whether they do so is subject to judicial scrutiny.[254] As the TEDS Standards refer to detention for up to 72 hours, and the evidence shows that CBP kept aliens detained for well beyond that period, Petitioners argue that CBP violated its internal agency policy.

         Petitioners' reliance on the time limitation within the TEDS Standards does not support a claim under the APA. The provision in the TEDS Standards does not have the force of law or create legal rights or obligations between CBP and the public and, as a result, represents a policy statement. No legal consequences flow from CBP's detention of aliens and no rights are affected by whether a detained alien remains in CBP custody for two days or twenty days. Petitioners allege that CBP holds detained aliens in unbearable conditions, does not allow counsel to visit aliens at CBP stations, and does not provide credible fear interviews. But those alleged deficiencies are unrelated to the time that the detained aliens remain in CBP's custody.

         In addition, Section 4.1 of the TEDS Standards presents no legally required standard.

         On the contrary, the provision expressly provides discretion to CBP:

Detainees should generally not be held for longer than 72 hours in CBP hold rooms or holding facilities. Every effort must be made to hold detainees for the least amount of time required for their processing, transfer, release, or repatriation as appropriate and as operationally feasible.[255]

         The language creates no legal requirement that limits detention to 72 hours, but contemplates that the 72-hour goal may not always be met. Petitioners' position, effectively, is not that the Court should require CBP to comply with Section 4.1 of the TEDS Standards, but that the Court should ...

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