August 7, 2018 at 6:43 PM
The tired and poor masses crossing the border illegally do a lot of huddling after coming to America. It’s the air conditioning.
So notoriously cold are the U.S. Border Patrol’s detention cells that those heading north are warned that the first stop will be a hielera, or “icebox.” The shivering stay is a rite of passage, and at the busiest border stations, the floors and benches are crowded with detainees bundled in silver polyethylene sheets, the only blankets made available. Their shifting bodies produce a constant crinkling, like the sound of Christmas gifts being unwrapped for hours on end.
A fight for control of the temperature inside these facilities is the subject of litigation between the U.S. government and immigration advocacy groups who accuse the Border Patrol of using the thermostat as a tool to deter migration and gain leverage over those in custody.
While these accusations stretch back years, the uproar triggered by the Trump administration’s “zero tolerance” family separation policy has brought new claims of hypothermic misery.
“They do it as a form of punishment,” said Peter Schey, one of the lead attorneys in the ongoing class-action suit known as the Flores settlement, which dates to the late 1990s and sets detention standards for migrant children in federal custody.
Last month, Schey and others submitted to the U.S. District Court for the Central District of Californiatestimonies and sworn statements from more than 200 detainees about their treatment in U.S. custody. Complaints about the cold come up again and again.
“It was hard to keep warm,” one Honduran mother, identified only as Maria A, said in a sworn statement. “When other people would leave there would be extra blankets so we would try to take them to have more to keep warm but the guards would notice we had more blankets and they would take them from us so we only had one,” her statement says. Maria’s 4-year-old son had become “very sick” because of the cold, it notes.
Customs and Border Protection officials vigorously dispute allegations of mistreatment. Many of the migrants in custody are from rural parts of Central America, they note, and simply not accustomed to air conditioning, or what some Border Patrol officials refer to as “refrigerated air.” The agency says that temperature settings are never used for punitive purposes and that thermostats are checked regularly to ensure they are between 66 and 80 degrees, the range that CBP deemed reasonable under the terms of the Flores settlement.
But the stories of trembling detainees and harsh conditions prompted U.S. District Court Judge Dolly M. Gee, who oversees compliance with Flores, to order the appointment of a “special master” who will conduct independent oversight of detention facilities. Attorneys for the government request more time to investigate and rebut the claims, but the judge cited a need to get “realistic, unbiased reports of what’s happening.”
“This needs to happen sooner rather than later,” said Gee, who rejected the Trump administration’s request to allow the government to hold children longer than the 20-day limit established by the court.
Driving the air conditioning dispute is the fact that two distinct groups must share the detention facilities — migrants and Border Patrol agents — and they have very different needs.
In South Texas, where Border Patrol stations absorb the most traffic involving illegal crossings, migrants often arrive with damp clothing after crossing the Rio Grande. Their long-sleeved shirts may be taken away because of concerns about suicide. Then they remain sedentary for hours or days on end, sitting and sleeping on heat-sapping concrete benches and floors, with little room to move.
Border Patrol agents, meanwhile, have jobs that require them to move in and out of the muggy heat, wearing uniforms and gear that may include body armor. Some are burly, and they are acclimatized to refrigerated air. They want the thermostat kept at a temperature that keeps them comfortable.
“Our folks wear long sleeves because they have to go through vegetation, or the desert, where they’re out in the sun,” said one CBP official, speaking on the condition of anonymity because the temperature dispute is a matter of ongoing litigation. “We have to make sure our folks can do their job.”
“It doesn’t mean we don’t stop trying to make people as comfortable as possible in our custody,” the official said.
Attorneys and immigrant advocates say the lower end of the government’s temperature range is too extreme even for Americans whose homes and offices are climate-controlled.
“I know I would freeze in a room that was 68 degrees, and I would want more than a Mylar blanket on me,” said Jennifer Podkul, policy director at KIND, one of the legal-aid organizations that advocates for migrant children.
Under the Flores settlement’s terms, migrant children should remain in CBP custody for no longer than 72 hours, and the Border Patrol generally seeks to transfer all adults in its custody to U.S. Immigration and Customs Enforcement (ICE) as quickly as possible. Complaints about temperature generally do not extend to ICE facilities, Podkul noted, because its detainees are given sweatshirts, blankets and beds.
CBP officials said they use disposable Mylar blankets, at a cost of 68 cents per unit, because the expense and logistical challenge of laundering fabric would be too great. The plastic is more hygienic, officials said, and agents are vigilant against blanket-sharing because of previous outbreaks of lice and scabies.
“They’re not comfortable and cozy, but they do provide warmth,” the CBP official said.
Stories of sleepless nights on concrete floors are repeated throughout migrants’ testimonies in the Flores suit, and the CBP official acknowledged that mats are not always available for adults. “There are facilities that do have mats. There are others that do not,” the official said. “At the larger facilities, there are mats for juveniles.”
One Honduran mother, identified in court filings as Dilsia R., said she and her 12-year-old daughter were wet and muddy from crossing the Rio Grande when they were taken into custody June 25.
Dilsia testified that her daughter was taken to a separate room for juveniles. “I did not sleep at all that night, it was too cold,” her statement says. “I sat there on the ground without any type of bed and shivered to the next day.”
Schey, whose Center for Human Rights & Constitutional Law is the chief plaintiff for the Flores litigation, said that in the hundreds of detainee interviews, 9 in 10 complain about the cold. He believes something more sinister is going on than a culture clash over air conditioning.
“By keeping the temperatures as low as they do, it really increases the susceptibility of detained children and their parents to go along with whatever the CBP agent who interviews them wants,” he said. Schey said migrants seeking asylum due to violence in Central America report being pressured to agree to voluntary deportation, and chilly temperatures leave them desperate to get out of their cells.
“It’s a way to enforce submissiveness and discourage people from asserting rights they may have to prevent their [deportation],” Schey added. “It also encourages people to want to just leave and agree to be deported, because they have no idea how long they’ll be kept in an ‘icebox,’ where their kid is shivering, sneezing and hasn’t slept.”
CBP officials dispute those claims. Last year, the agency designated a Flores juvenile coordinator to ensure compliance with the court agreement. While conducting unannounced inspections of detention facilities, the coordinator carries a thermometer and records the readings in his reports.
The inspector, Henry A. Moak Jr., wrote in a June report provided to Gee that during his visits to eight detention facilities, he found only one instance of a temperature setting below the established range.
In most facilities Moak measured, the temperature ranged between 70 and 75 degrees. But in interviews with 38 detainees, many also told Moak they were cold, including one 4-year-old boy from Guatemala. Moak noted that the temperature in the cell was 76.4 degrees, but the boy’s father told him they had not received a blanket or mat after four hours in custody.