Lawsuit charges adult migrants detained without due process violates U.S. Constitution


McALLEN, Texas (Border Report) — A lawsuit filed recently on behalf of 16 adult migrants detained by U.S. Customs and Border Protection in South Texas charges that the federal agency violated the 5th Amendment of the U.S. Constitution by holding them for long periods of time “without due process,” or the ability to consult with legal counsel.

The lawsuit, which was filed in U.S. District Court Southern District of Texas in Brownsville, is unique because currently there is no federal law restricting the amount of time that an adult migrant can be held by CBP. Under federal law, minors are not supposed to be held for more than 72 hours before being turned over to the Office of Refugee Resettlement. But, there is no policy, other than CBP internal memorandums, which prevent adults from being held for weeks or even months, Karla Vargas, a senior lawyer with the Texas Civil Rights Project told Border Report.

“Right now there is only internal policy by Customs and Border Protection that says that adults need to be moved out of these adult processing centers, known as hieleras, within 72 hours but that’s only internal policy,” Vargas said.

Vargas said adult migrants routinely are being held for two weeks, and some for as many as 50 days when processed by CBP in the Rio Grande Valley.

“This is the first step for trying to get some protection for adults that are held in these facilities,” she said.

The lawsuit, which was originally filed on July 2, was amended and refiled on Aug. 2 on behalf of some migrants who are still being detained by CBP facilities in the Rio Grande Valley.

“CBP’s conduct violates Fifth Amendment prohibitions against holding prisoners incommunicado,” the lawsuit states.

Named as defendants in the lawsuit are: U.S. Department of Homeland Security Acting Secretary Kevin McAleenan; CBP Acting Commissioner John Sanders; U.S. Border Patrol Chief Carla Provost; Rodolfo Karisch, chief patrol agent-Rio Grande Valley Sector; and Michael Pitts, field office director for ICE/ERO at the Port Isabel Service Processing Center.

In am email, CBP told Border Report: “as a matter of policy CBP can’t comment on pending litigation.”

Cited in the lawsuit are allegations that CBP officers are not properly screening migrants to determine if they have a real and credible fear of returning to their home countries. “If the person was previously removed, it appears that the removal order is simply reinstated, without making that inquiry,” the lawsuit states.

“CBP’s conduct violates Fifth Amendment prohibitions against holding prisoners incommunicado.”

Lawsuit filed against CBP

Furthermore, the lawsuit states that migrants in CBP facilities do not have access to lawyers. “When people are held in these CBP processing centers they are held incommunicado. They have absolutely no access to the outside world. They do not have access to attorneys, to make a phone call to their families. So the entire time they’re being held in these centers their families don’t know where they are, whether they need to be looking for a body,” Vargas said.

“They have absolutely no access to the outside world. They do not have access to attorneys, to make a phone call to their families. So the entire time they’re being held in these centers their families don’t know where they are.”

Karla Vargas, senior lawyer, Texas Civil Rights Project

Lawyers are not allowed to visit migrants at CBP facilities.

CBP processing centers were originally designed to quickly process migrants. Facilities run by Immigration and Customs Enforcement are designed for longer-term care of migrants. But, a surge of immigrants coming from El Salvador, Guatemala and Honduras has swamped CBP officers and has led to many adults being detained at CBP processing centers, like one that recently opened in Donna, Texas, for much longer times.

“CBP processing centers are supposed to be a quick processing — background check, confirm identity, any previous immigration or criminal history and that’s it. There’s absolutely no reason for CBP to be withholding people for the lengths of times they have been,” Vargas said.

A preliminary injunction hearing has been set for Sept. 5.

Sandra Sanchez can be reached at

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