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Commissioner Chris Magnus
U.S. Customs and Border Protection
U.S. Department of Homeland Security
1300 Pennsylvania Avenue NW
Washington, D.C. 20229
RE: Arizona Border Patrol Sectors’ Practice of Forcing Migrants to Relinquish Their Personal Belongings During Processing
Dear Commissioner Magnus:
We write to express our concern regarding U.S. Customs and Border Protection (CBP) policies and practices that are resulting in the mass dispossession of migrants’ personal belongings in Arizona and elsewhere along the border. This issue, though longstanding, has worsened considerably in the last several months, triggering growing public and congressional scrutiny. In short, Border Patrol agents in the Yuma and Tucson sectors1 are forcing migrants to relinquish nearly all their belongings upon apprehension, including items of religious, sentimental, medical, and legal significance. The many cases we document below, in Exhibit A, suggest that CBP is failing to comply with its own internal operating guidelines and unreasonably confiscating the personal property of individuals in its custody. We urge you to promptly investigate Yuma Sector and Tucson Sector Border Patrol stations’ compliance with agency policies concerning the handling, storage, and transportation of migrants’ personal belongings. We also kindly request a meeting to discuss the insufficiency of current policies in yielding appropriate outcomes on the ground.
1 While many of the anecdotes of property dispossession set forth in Exhibit A can be attributed explicitly to the Yuma or Tucson sectors, others are known only to have happened in the custody of Border Patrol agents in Arizona. Our understanding based on the latest trends is that Yuma Sector is most heavily engaged in forced disposals and confiscations of the possessions of migrants who will ultimately be processed via Title 8. The dispossession happening in Tucson Sector, in contrast, seems to be more (though not exclusively) associated with Title 42 expulsions.
I. Current Border Patrol Practices in Arizona Sectors
The mass dispossession of migrants’ belongings by Border Patrol agents is not new,2 yet the problem has now reached unprecedented levels of magnitude and severity. Border Patrol agents in Arizona are forcing migrants they apprehend to discard all their belongings into on-site dumpsters, the only exceptions being a single layer of clothing and certain items that can fit into a 7-by-7-inch plastic bag.3 As Exhibit A to this letter illustrates, the items migrants are forced to relinquish include vital medications and medical devices, legal documents, money, cellphones, and items of religious significance. Indeed, CBP’s policies in this area made national headlines in August due to revelations that Sikh turbans were among the items being confiscated and destroyed.4 While the agency has taken steps in an attempt to end that particular practice, complaints continue to be reported as documented in Exhibit A. The continued complaints evidence that the aggressive policy context that produced turban removals—in which perceived operational necessity justifies the indiscriminate removal of personal belongings—remains.
In recent months, the Yuma Border Patrol sector has shifted away from on-the-spot forced disposals of property to a more veiled approach: forcing migrants to relinquish their personal belongings to a claim-ticket system, through which it is effectively impossible for them to recover their property.6 Under this system,7 Border Patrol agents confiscate migrants’ belongings and provide them with a claim ticket, which migrants can supposedly redeem at the same Border Patrol
2 See Walter Ewing & Guillermo Cantor, Deported with No Possessions: The Mishandling of Migrants’ Personal Belongings, American Immigration Council (Dec. 21, 2016); Hafter, et al., Shakedown: How Deportation Robs Immigrants of their Money and Belongings, No More Deaths (Dec. 2014).
II. Border Patrol’s Property Practices Violate CBP’s Own Policies and Infringe on Migrants’ Fundamental Rights.
Exhibit A documents a number of specific examples of items confiscated by Border Patrol in recent months. While these examples only scratch the surface, they raise serious concerns that CBP is failing to comply with its own internal operating guidelines set forth in the Transport, Escort, Detention & Search (TEDS) standards. Agencies are legally required to adhere to their internal operating procedures.11 Here, CBP’s confiscation and dispossession of migrants’ personal belongings, including life-saving medicines, legal documents, items of religious significance, and cash and other valuables, violates TEDS policies governing the handling, retention, and return of
8 The system originates from CBP’s “Personal Property” policy, which provides that personal belongings will be held “for a minimum of 30 days from the processing of a detainee” before the items are deemed “abandoned and may be destroyed.” CBP Nat’l Standards on Transport, Escort, Detention & Search (TEDS) (Oct. 2015), Policy 7.1 (Personal Property/General).
9 See Hafter, supra n.2. Individuals at the Yuma FPD’s office have commented to us that, more often than not, their clients’ confiscated property is left in Border Patrol custody and later thrown out. 10 In Arizona, asylum seekers who are released from government custody within the 30-day window are typically dropped off in Phoenix or Tucson with very limited options for temporary shelter. The financial and logistical lift required to travel hundreds of miles back to the Yuma Border Patrol station, redeem a claim ticket, and coordinate travel elsewhere renders the vast majority of asylum seekers unable to reclaim their belongings.
10 In Arizona, asylum seekers who are released from government custody within the 30-day window are typically dropped off in Phoenix or Tucson with very limited options for temporary shelter. The financial and logistical lift required to travel hundreds of miles back to the Yuma Border Patrol station, redeem a claim ticket, and coordinate travel elsewhere renders the vast majority of asylum seekers unable to reclaim their belongings.
11 See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954); see also Alcaraz v. I.N.S., 384 F.3d 1150, 1162 (9th Cir. 2004) (noting that “the so-called Accardi doctrine extends beyond formal regulations”); Torres v. DHS, 411 F. Supp. 3d 1036, 1068-69 (C.D. Cal. 2019) (enforcing ICE’s national detention standards against contractor).
personal property.12 Individuals in civil custody retain a protected interest in their personal property,13 and CBP must take reasonable steps to ensure that this property is safeguarded.
Moreover, under TEDS Policy 7.0, special procedures exist for sensitive items, such as cash, medications, and legal documents. “Special attention must be given to the security and return of the detainee’s cash, currency, negotiable instruments, and debit/credit cards,” and “copies of legal papers signed by the detainee shall be provided to the detainee” while in CBP custody.14
Likewise, medications that must be regularly administered are expected to be stored and made available accordingly.15 This requirement is consistent with detained immigrants’ constitutional right to adequate health care in federal custody.16 Yet, as Exhibit A shows, Border Patrol agents have, in recent months, repeatedly confiscated life-saving medications for high blood pressure, diabetes, asthma, and epilepsy—all of which must be administered regularly—and have refused to provide replacement medications while migrants are in custody or at the point of release, endangering their lives.
Trashing important documents, such as birth certificates and identification cards, likewise contradicts the TEDS standards. It also interferes with migrants’ right to apply for asylum by depriving them of crucial evidence needed to substantiate their legal claims.17 And confiscating and throwing out, or failing to return, religious items—such as religious headwear, prayer rugs, rosaries, religious figurines, and other articles of faith, as documented in Exhibit A—not only disregards CBP’s “Personal Property” and “Religious Sensitivity” policies,18 but it also violates the Religious Freedom Restoration Act (RFRA), which provides heightened legal protections for religious exercise.19 In most instances, depriving migrants of their religious belongings while in custody, or after they are released, will substantially burden their religious exercise.20 RFRA prohibits CBP from impeding religious practices in this manner unless officials can demonstrate
12 See generally, TEDS, supra n.8, Policy 7.0 (Personal Property).
13 See Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).
14 Id., Policy 7.1 (Personal Property/General).
15 Id., Policy 7.5 (Personal Property/Medications).
16 See, e.g., Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (“The Fifth Amendment requires the government to provide conditions of reasonable health and safety to people in its custody.”); Murphy v. Walker, 51 F.3d 714, 720 (7th Cir. 1995) (pretrial detainee had sufficiently alleged a due process claim against prison officials for removing his plaster arm cast and failing to provide Tylenol prescribed by doctor for pain relief).
17 See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987) (noting that Congress enacted the Refugee Act, Pub. L. No. 96-212, 94 Stat. 102 (1980), expressly to “bring United States refugee law into conformance with” international law establishing the right to seek asylum); see also 8 U.S.C. § 1158(a).
18 TEDS, supra n. 8, Policy 1.5 (“General Standards/Religious Sensitivity”) (noting that officers and agents must “remain cognizant of an individual’s religious beliefs while accomplishing an enforcement action in a dignified and respectful manner”).
19 42 U.S.C. §§ 2000bb et seq. The statute applies to any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Id. § 2000bb-2(1). This includes Border Patrol. See, e.g., United States v. Ramon, 86 F. Supp. 2d 665, 677 (W.D. Tex. 2000) (holding that Border Patrol’s policy of targeting and stopping vehicles displaying religious symbols violated RFRA).
20 See, e.g., Newingham v. Magness, 364 F. App’x. 298, 300 (8th Cir. 2010) (reversing and remanding where district court found no substantial burden based on prison Islamic coordinator’s view that a prayer rug was a “convenience” rather than a religious “requirement”); Singh v. McHugh, 185 F. Supp. 3d 201, 216-17 (D.D.C. 2016) (holding that Army’s denial of religious accommodation constituted a substantial burden where Sikh plaintiff sincerely believed that not wearing his turban would dishonor and offend God); Ali v. Stephens, 69 F. Supp. 3d 633, 644 (E.D. Tex. 2014), aff’d, 822 F.3d 776 (5th Cir. 2016) (prison rule barring religious headwear outside of cells and religious services substantially burdened prisoner’s sincere belief that he must wear a kufi at all times).
that the burden is the least restrictive means of furthering a compelling governmental interest.21 This legal standard is “exceptionally demanding,”22 and CBP fails to meet it because current policy already points to a less restrictive means of operation: It explicitly permits migrants to “keep some personal items in their possession, as long as a particular item does not pose a threat to the security or good order of the facility.”23
Finally, with respect to return and retrieval of migrants’ belongings, CBP policy provides that officers “will make every effort to transfer a detainee’s personal property with the detainee when the detainee is transferred to another agency, repatriated, and/or released.”24 But other policies and practices conflict with this obligation. As an initial matter, CBP’s policies pertaining to personal property are frequently not communicated to migrants in a language that they can comprehend. Even if they do receive accurate information in their native language, as discussed above, it is virtually impossible for individuals to retrieve their property under CBP’s current rules. CBP policy requires officials to retain confiscated property for a mere 30 days, after which it “will be considered abandoned and may be destroyed.”25 This is simply not enough time to enable migrants to reclaim their belongings. Indeed, requiring them to return within any time frame to reclaim their property is impracticable and unnecessary. For example, CBP could instead allow migrants to have access to their personal belongings while in custody and ultimately retain those belongings upon release. Alternatively, even if some personal possessions must be put in storage, they should be stored on site or nearby, and migrants should be given the opportunity to obtain those items before they are released or transported elsewhere, so that no return to the border station is required. In cases where migrants are transferred to the custody of another government agency (e.g., ICE or the U.S. Marshals Service), their personal belongings should “follow” them and be stored in the same facilities where migrants are housed.
III. Border Patrol Must Permanently Reform These Cruel and Unnecessary Practices.
These sweeping, draconian policies and practices around personal property are indefensible. Seizing migrants’ belongings, and then trashing or refusing to return them, is morally and legally wrong. Given the vast budgetary resources afforded to your agency, we are confident that alternative solutions are well within reach, even in times where the number of border apprehensions may suddenly or unexpectedly increase. We thus respectfully request the following:
1. A meeting to discuss your plan to bring CBP’s practices around the handling, retention, retrieval, and return of migrants’ personal property into accordance with existing agency policy, federal law, and the Biden administration’s stated commitment to the humane treatment of migrants.
21 42 U.S.C. 2000bb–1.
22 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014).
23 TEDS, supra n. 8, Policy 7.4 (Personal Property/Possessions Kept on the Detainee). Moreover, while there may be some operational differences between CBP and other agencies, the fact that other institutions involving carceral settings are able to accommodate such religious items weighs strongly against CBP under any legal analysis. See Holt v. Hobbs, 574 U.S. 352, 368 (2015) (“While not necessarily controlling, the policies followed at other well
run institutions would be relevant to a determination of the need for a particular type of restriction.”) (internal quotation marks omitted).
24 TEDS, supra n.8, Policy 7.1 (Personal Property/General) (emphasis added).
2. All applicable agency guidance related to the handling, retention, retrieval, and return of migrants’ personal property, including the most up-to-date TEDS standards and the National Personal Effects Internal Operating Procedures (IOP) referenced in the CBP interim guidance regarding the handling of Sikh migrants’ turbans.
We look forward to hearing from you regarding this matter and to meeting to discuss next steps. In the meantime, please do not hesitate to contact us with any questions.
American Civil Liberties Union of Arizona
American Civil Liberties Union
AZ-CA Humanitarian Coalition
Florence Immigrant & Refugee Rights Project
Kino Border Initiative
Property-Recovery Project, No More Deaths
Uncage and Reunite Families Coalition
Sen. Kyrsten Sinema
Sen. Mark Kelly
Rep. Raúl Grijalva
Rep. Judy Chu
Rep. Joaquin Castro
Office of the Immigration Detention Ombudsman
Senate Committee on Appropriations, Subcommittee on Homeland Security
House Committee on Appropriations, Subcommittee on Homeland Security
Senate Committee on the Judiciary, Subcommittee on Immigration, Citizenship, and Border Safety House Committee on the Judiciary, Subcommittee on Immigration and Citizenship
Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Government Operations and Border Management
House Committee on Homeland Security, Subcommittee on Border Security, Facilitation and Operations
Below are examples of property dispossessions that have been encountered in recent months by the signatories to this letter and their partner organizations. While this list focuses primarily on the Arizona Border Patrol sectors, it also includes cases flagged for by partners in New Mexico and the Rio Grande Valley—to demonstrate the breadth of the issue and because migrants apprehended by Arizona Border Patrol agents are sometimes transferred “laterally” to other parts of the border.
1. Items of religious significance
o January-September 2022: The AZ-CA Humanitarian Coalition (AZ-CA) encountered migrants who were forced by Arizona Border Patrol agents to abandon their prayer rugs, sometimes in dumpsters. One of these individuals had to discard a prayer rug that had been in their family for over a hundred years. 26
o June-September 2022: Partner organizations documented at least 95 cases in which Arizona Border Patrol agents confiscated and did not replace turbans from members of the Sikh faith.
o July 2022: AZ-CA encountered an Afro-Cuban migrant whose religious artifact (a small figurine of significance in the Lukumí faith) was confiscated by Arizona Border Patrol agents.
o July-September 2022: The Kino Border Initiative (KBI) encountered several migrants whose Bibles and rosaries were confiscated by Arizona Border Patrol agents.27 One individual commented to KBI staff that, although a rosary may not be of much value to some people, their faith sustained them during their journey to the United States. AZ-CA also encountered migrants during this time period who were forced to throw away rosaries and multi-generational family bibles into the on-site dumpsters.28
26 AZ-CA provides a welcoming experience and critical support to migrants at various stages of their journey by streamlining rapid response efforts and advocating for a humanitarian response to migrants. 27 KBI is a binational, inclusive Roman Catholic organization, inspired by the spirituality of the Jesuits and Missionaries of the Eucharist. KBI is locally rooted in Ambos Nogales on the Mexico-U.S. border, with a regional approach throughout Central America and North America. The organization offers direct humanitarian assistance and holistic accompaniment to those deported to Nogales, Sonora, Mexico, by ICE or CBP as well as individuals fleeing violence who arrive at the border to seek asylum. KBI conducts an intake survey with every individual who receives its services, and that intake survey is the source of some of the anecdotes included in this letter. 28 The ACLU previously documented CBP’s seizure of religious items—including rosaries, Bibles, turbans, and other religious articles—in a March 2019 letter to CBP. See ACLU letter directed to DHS Office for Civil Rights and Civil Liberties (CRCL), Office of the Inspector General (OIG), ICE, & CBP Re: Investigating religious-freedom violations by Border Patrol and ICE (Mar. 15, 2019). The ACLU again outlined these concerns in 2020 in a follow up letter. See ACLU letter directed to DHS CRCL & OIG Re Investigating religious-freedom violations by DHS (Sept. 10, 2020).
2. Medications and medical devices
o November 2021-September 2022: Partner organizations documented 42 cases of vital medications being confiscated and not replaced by Arizona Border Patrol agents. Among the medications seized were those for HIV, high blood pressure, diabetes (types 1 and 2), and epilepsy. Agents also took migrants’ asthma inhalers and prenatal and hormonal vitamins from women with high-risk pregnancies. Most of the individuals whose medications for high blood pressure and diabetes were confiscated were released to shelter providers with (sometimes extremely) elevated blood pressure and blood sugar levels. Among the most egregious cases:
▪ November 2021: A woman had a history of high blood pressure and stroke. Her medications were confiscated by Border Patrol agents in Arizona. While detained, she requested medical attention in an effort to have her medications replaced and was told that “ICE is not a pharmacy.” Upon arrival at a shelter, she was in hypertensive urgency with a blood pressure measuring 180/120.
▪ January 2022: An individual with HIV had his medications removed by Border Patrol agents in Arizona and was not given any medications while detained. He ended up contracting COVID during that time and was not provided any medications upon release.
▪ February 2022: An individual with a bleeding disorder requiring injections of anticoagulants had their medications and injection supplies confiscated by Border Patrol agents in Arizona. The individual had several months’ supply. Upon release, they were allowed to keep only two vials of their medication, and CBP failed to provide them with replacement needles or any other way of administering it.
o January-September 2022: AZ-CA encountered at least 15 separate instances in which elderly individuals were forced by Border Patrol agents in Arizona to abandon medical assistive devices, such as wheelchairs, walkers, and canes.
o January-September 2022: A New Mexico shelter provider that receives migrants from the El Paso Sector Border Patrol received reports that critical medications and medical devices, such as epi-pens and inhalers, were seized by agents. For example, around April of this year, an 18-year-old boy, who was separated from his mother, was released from Border Patrol custody without his epilepsy medication.
o June 2022: The ACLU of New Mexico encountered a woman who was detained by Border Patrol agents in El Paso with her two children. Her five-year-old daughter has epilepsy and takes medication three times a day and follows a strict dietary regimen. Once she was detained by CBP, her daughter’s medications were taken away, and the family was refused any medical assistance until later that night, after her daughter began convulsing. Her daughter was taken from CBP custody to the University Medical Center (UMC) in El Paso where she stayed for two days.
Doctors at UMC prescribed medications for four months, as well as Enfamil and PediaSure nutrition drinks for approximately one month. Once the child returned to CBP detention, CBP agents withheld the medicine and meal supplements prescribed by UMC staff. The mother was unable to obtain medication for her child until they were released to a shelter in Las Cruces, New Mexico, where her child once again had convulsions. While at the shelter, her child received medical care and medication.
o May-September 2022: KBI encountered at least 20 cases of migrants whose currency had been confiscated by Arizona Border Patrol agents. One migrant, who arrived at KBI in July, reported that $200 dollars was taken by agents. Another who arrived in the same group reported that, while in custody, he had witnessed a Border Patrol agent take $150 from another migrant and rip it up in their face saying, “This is trash, this is of no value to you here.” The agent then threw the torn bills into a trash can. Three more migrants who arrived at KBI in August reported that Arizona Border Patrol agents had confiscated $450, $300, and $90 dollars, respectively.
o June 2022: The ACLU of New Mexico encountered a woman who reported that the attending Border Patrol agent confiscated her wallet containing $240, slid the money into his pocket, and then returned the wallet. When she asked the agent where the money was, he changed the subject and told her not to worry since, “you have a very good case and will be approved to stay.”
4. Items of legal significance
o March 2022: KBI encountered a woman who reported that Arizona Border Patrol agents had confiscated medical documents that were relevant to her immigration case. While traveling north through the Sonoran Desert (on the U.S. side), the woman was raped by three men. When she was later apprehended by Border Patrol agents, she told them what had happened and repeatedly asked to go to hospital to receive a medical examination. One of the Border Patrol agents insinuated she was lying and tried to dissuade her from going. Eventually, however, they took her to the hospital, where she received a medical examination and corresponding paperwork. She handed the one of the Border Patrol agents the paperwork in the hope that it might persuade them to let her apply for asylum, but the agent did not return it and the woman was expelled back to Mexico without the documentation. The Guatemalan consulate later attempted to help the woman apply for a U-Visa since she experienced the crime in the United States, but she no longer had any of the medical documentation to substantiate it.
o May – September 2022: KBI encountered at least 14 cases of migrants who reported that Arizona Border Patrol agents had confiscated their identity documents. In May, a mother and daughter said Border Patrol had thrown away their suitcase, which contained copies of their birth certificates. A man who KBI encountered in August reported that, while he was in Border Patrol’s custody in Arizona, agents had ripped up his birth certificate in front of him.
o July 2022: AZ-CA encountered a man whose new laptop was confiscated by Border Patrol agents in Arizona. The laptop contained legal evidence for his asylum claim as well as all of his family photos.
o Generally: The National Butterfly Center (located in Mission, Texas) has found photo identification, birth certificates, and bank account information at its facility or on the perimeter, where migrants are often apprehended. The organization has collected at least ten sets of identification documents in the last year alone. Other advocates who operate in the Rio Grande Valley Sector report finding discarded police reports, medical records, passports, immigration papers, and other documents that could be vital to substantiating an asylum claim.
5. Cell phones
o January-November 2022: A New Mexico shelter provider that receives migrants from El Paso Sector Border Patrol reports that Border Patrol has sometimes confiscated cellphones and either not returned them or returned them in damaged condition.
o May-September 2022: KBI encountered at least 29 cases in which migrants’ cell phones were confiscated by Arizona Border Patrol agents. One man, who arrived at KBI in May, told staff members that he wanted to try to reclaim his confiscated phone because it contained photos of his family and granddaughter. Two other men, who arrived at KBI in July and August, reported that their seized phones had contact information and photos of their family members; both men were sent back to Mexico with no way to contact their families.
6. Other items of significant financial or sentimental value
o February 2022: AZ-CA encountered a man who was forced by Arizona Border Patrol agents to throw away his father’s ashes. His father was cremated after he passed away during the 70-day journey from Nicaragua to the border.
o March 2022: AZ-CA encountered several families who were forced by Border Patrol agents to discard their children’s toys and stuffed animals with their children in line-of-sight.
o August 2022: KBI encountered a man who reported that Border Patrol agents in Arizona had confiscated all of his personal belongings, including a chain with a diamond ring that his father had given to him.